Mulford v. Central Farmers Trust Co.

• Decision Date: 18 March 1930
• Parties: MULFORD et al. v. CENTRAL FARMERS' TRUST CO.
• Court: Florida Supreme Court

126 So. 762

99 Fla. 600

MULFORD et al. v. CENTRAL FARMERS' TRUST CO.

Florida Supreme Court, Division B.

March 18, 1930

Proceeding by William B. Mulford and others against the Central Farmers' Trust Company, as executor of the last will and testament of B. W. Mulford, deceased, to revoke the probate of decedent's will. An order dismissing the petition was affirmed by the circuit court, and complainants appeal.

Reversed.

Syllabus by the Court

SYLLABUS

Unless one is satisfied from own knowledge that testator is of sound and disposing mind and memory, he is not justified in subscribing will as witness. No person is justified in putting his name as a subscribing witness to a will, unless the witness knows from the testator himself that he knows what he is doing. The witness should also be satisfied from his own knowledge of the state of the testator's mental capacity, that he is of sound and disposing mind and memory.

Probate judge's findings, on conflicting evidence, should ordinarily not be disturbed on appeal where sustained by ample evidence; probate judge's findings should not be sustained on appeal merely because there is contradictory evidence on which sustainable, where judge misapprehended legal effect of evidence as entirety. The findings of fact by a probate judge, upon conflicting evidence, should ordinarily not be disturbed on appeal to the circuit court, where there is ample evidence to sustain the findings; yet where the probate judge misapprehended the legal effect of the evidence as an entirety, his findings should not be sustained merely because there is evidence that is contradicted on which the findings may be predicated.

Evidence held to establish testator's lack of testamentary capacity. The court finds from the record that the evidence established beyond a doubt that at the time the will here under consideration was purported to have been executed by Mulford, he was not possessed of testamentary capacity and therefore, the rule that a will, to be effective, must be made and executed by one of sound and disposing mind and memory, requires that the purported will beheld to be invalid and of no effect.

Appeal from Circuit Court, Palm Beach County; C. E Chillingworth, judge.

COUNSEL

Joel W Massie, of West Palm Beach, and Crawford & May, of Jacksonville, for appellants.

Wideman & Wideman, of West Palm Beach, for appellee.

OPINION

BUFORD. J.

B. W Mulford died in Palm Beach county, Fla., on the 25th day of June, 1926.

On the 3rd day of July, 1926, a purported last will and testament of the said Mulford was presented for probate in the county judge's court in and for Palm Beach county, Fla. The will appeared to be in proper legal form, and was proven by the affidavits of two subscribing witnesses. The will was probated. Later the appellants here filed a petition to revoke the probate of the will. Testimony was taken, and an order entered dismissing the petition.

Appeal was taken to the circuit court, and in due course the order dismissing the petition for revocation of probate was affirmed. Whereupon appeal was entered to this court. The petition for revocation may be said to be based upon two grounds. First, that the purported will was not the will of B. W. Mulford, in that it was never executed by him in such manner as to be legally accepted as the last will of testament of B. W. Mulford; and second, that at the time of the pretended execution of the will by Mulford, that he did not possess testamentary capacity because of mental infirmity. Sections 3595 and 3597, R. G. S., sections 5460 and 5462 C. G. L. 1927, require that all wills shall be signed by the testator, or by some other person in his presence, and by his express directions. The evidence shows that Mulford, at the time the will was executed, was physically unable to sign his name; that a third party present requested a physician, who was also present, to assist Mulford in signing his name and executing the will. This physician received no directions whatever from Mulford, but acting upon the request of the third party, according to the undisputed evidence, guided the hand of Mulford over the paper and signed the will.

The affidavits of two of the subscribing witnesses were identical except for the interchanging of names of the witnesses in the two affidavits. The affidavit made by Dr. Lewis was as follows:

'Before the undersigned officer personally appeared R. G. Lewis, who being duly sworn, says that he was personally present as subscribing and attesting witness with Lloyd J. Netto and Viola C. Hetrick, who were also present as subscribing and attesting witnesses, and saw the testator subscribe his name to the instrument, of writing hereto annexed, as and for his last will and testament, and that the said B. W. Mulford did then and there in the presence of said R. G. Lewis, Lloyd J. Netto and Viola C. Hetrick, publish and declare the same to his last will and testament; that the said R. G. Lewis, witness did then and there, at the special request of said B. W. Mulford, and in his presence and in the presence of Lloyd J. Netto and Viola C. Hetrick, subscribe his name thereto as attesting witness; and the said R. G. Lewis swears that he verily believes the said instrument of writing hereto annexed, so subscribed, published, declared and attested as aforesaid, to be the last will and testament of said testator, the said B. W. Mulford.

'R. G. Lewis, M. D.

'Sworn to and subscribed before me this 3rd day of July, A. D. 1926.

'[Seal.] Harry A. Johnston, Notary Public.

'My Commission Expires July 5th, 1928.'

The affidavit of Dr. Netto was indentical, except that he appeared as the affiant instead of Lewis, and his affidavit referred to Lewis as another subscribing witness in lieu of Netto.

On the hearing on petition to revoke the will, every material allegation in each affidavit was positively contradicted by each of the affiants, and also by Viola C. Hetrick, who was the other subscribing witness, and who was a trained nurse in attendance upon Mulford at the time the will was executed. Outside of these affidavits, there is no evidence that Mulford ever at any time declared this will to be his last will and testament. The evidence shows that Mr Ervin testified that Mr. Mulford told him that he, Mulford,...