Parker v. Penny

• Decision Date: 15 May 1928
• Citation: 117 So. 703,95 Fla. 922
• Parties: PARKER v. PENNY.
• Court: Florida Supreme Court

117 So. 703

95 Fla. 922

PARKER v. PENNY.

Florida Supreme Court, Division B.

May 15, 1928

Proceeding by Georgia Parker against A. D. Penny, named executor of the last will and testament of Joseph W. Combs, deceased, seeking to revoke the probate of such will. Decree affirming an order of the county judge denying the petition, and petitioner appeals.

Affirmed.

Ellis C.J., and Brown, J., dissenting.

Syllabus by the Court

SYLLABUS

Finding of probate judge, in proceeding to revoke probate of will, if supported by evidence, will not be disturbed unless misapprehending legal effect of evidence. In a proceeding to revoke the probate of a will, the finding of the probate judge, if supported by competent evidence, will not be disturbed unless it is made to appear that he misapprehended the legal effect of the evidence as an entirety.

Affirmed on authority of Hamilton et al. v. Morgan, 93 Fla 311, 112 So. 80.

Head of family with wife or children may not devise homestead. The head of a family in this state with wife or children may not devise his homestead.

Appeal from Circuit Court, Dade County; W. L Freeland, judge.

COUNSEL

Shipp, Evans & Kline, of Miami, for appellant.

S. J. Barco, of Miami, for appellee.

OPINION

TERRELL J.

Joseph W. Combs, late of Miami, Dade county, Fla., died testate March 9, 1926. Six days prior to his death on March 3, 1926, he executed his last will, which was probated April 17, 1926. April 19, 1926, appellant, Georgia Parker, a daughter and heir at law of the testator, filed in the probate court of Dade county her petition seeking to revoke the probate of the said will on the ground of testamentary incapacity, undue influence, and on the further ground that the lands on which the testator lived and made his home (and which constituted the bulk of his estate) was his homestead and was not subject to disposition by will under the laws of this state.

On the 12th day of May, 1926, the executor named in the will, appellee here, filed his answer to appellant's petition seeking to revoke the probate of the said will. The said answer denied all the material allegations of said petition. Much testimony was taken on the issues made, and on final hearing August 13, 1926, the county judge entered his order denying the petition of Georgia Parker to revoke the probate of the said will and also holding said will expressed the true desire of the testator with reference to the disposition of his property, that the testator was possessed of testamentary capacity at the time he executed the said will, that the said Joseph W. Combs was not the head of a family at the time of his death, and that his home or place of residence was not his homestead. From the order of the county judge appeal was taken to the circuit court, and on final hearing April 13, 1927, the chancellor entered his final decree affirming the order of the county judge. From the final decree of the chancellor appeal was taken to this court.

The will brought in...