Schaefer v. Voyle

• Decision Date: 01 August 1924
• Parties: SCHAEFER et al. v. VOYLE et al.
• Court: Florida Supreme Court

102 So. 7

88 Fla. 170

SCHAEFER et al. v. VOYLE et al.

Florida Supreme Court, Division B.

August 1, 1924

Rehearing Denied Oct. 2, 1924.

Proceeding by Amelia K. Schaefer and others against Charles C. Voyle and another, as executors of the last will and testament of Lizzie A. Butterweck, deceased, and others, for revocation of order probating will. From an order and judgment confirming the probate of the will, plaintiffs appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Every person presumed sane until contrary appears; burden of proof of insanity in civil actions on party alleging it. Every person is presumed to be sane until the contrary appears, and in civil actions the burden of proof of insanity rests upon him who alleges it.

Chancellor's finding on conflicting evidence presumed correct chancellor's decree supported by legal evidence not reversed unless clearly erroneous. The finding of a chancellor on conflicting evidence is presumptively correct and where there is legal evidence to support it the decree will not be reversed unless it clearly appears to be erroneous.

Where testator shown in custody of will which cannot be found after death, destruction with intention to revoke presumed. Where it is shown that a testator had his will in his custody and it cannot be found after his death, it is presumed, in the absence of other evidence, that he destroyed it with intention to revoke.

Generally ambulatory and have no operation until testator's death. Generally wills are ambulatory and have no operation until the death of the testator.

Execution of second will afterwards destroyed by testator does not affect validity of prior will. The execution of a second will, which is afterwards destroyed by the testator, does not affect the validity of a will previously executed by him.

Destruction of will containing revoking clause may revive, in absence of showing of contrary intent, prior will existing at testator's death. In the absence of a showing of contrary intent, the destruction by the testator of a will executed by him which contained a provision revoking former wills, may revive a will previously made by the testator and in existence at the date of his death.

Appeal from Circuit Court, Hernando County; W. S Bullock, judge.

COUNSEL

F. B. Coogler and F. L. Stringer, both of Brooksville, for appellants.

Robert W. Davis, of Gainesville, Guss Wilder, of Clearwater, and Gibbons & Gibbons, of Tampa, for appellees.

OPINION

WEST J.

By this proceeding petitioners, who are appellants here, proceeding under the statute (section 3611, Rev. Gen. Stat.), seek to have the probate of a will revoked. The allegations generally of the petition are testamentary incapacity of the testatrix, undue influence exerted upon testatrix to induce the making of the will, and revocation of the will by a subsequent will of testatrix containing a revocatory provision, but which latter will was lost or destroyed or surreptitiously suppressed and was not found or produced after the death of the testatrix, Answer was filed and evidence taken by the parties. Upon consideration on the merits by the circuit judge, the county judge being disqualified, there was an order and judgment confirming the probate of the will. This appeal is from that order.

There was a specific finding against petitioners by the trial court upon the questions of fact. The court found upon the proof adduced that petitioners had failed to sustain their allgations of testamentary incapacity of the testatrix and undue influence exerted upon her to induce the making of the will.

It is not considered that a summary of the evidence in this opinion would be productive of benefit. A number of witnesses were examined who had known the testatrix for a number of years and had had opportunities to observe her demeanor. The personal relations between some of the witnesses and the testatrix were intimate. Others of the witnesses were familiar with business transactions in which testatrix was interested and were familiar with her capacity to conduct the business in which she was engaged. Some of the witnesses were physicians. Others were not. Some of the witnesses expressed the conclusion that testatrix was mentally incompetent. Others reached the opposite conclusion.

Presumably testatrix was sane at the time the will was made. The burden of rebutting this presumption and establishing incompetency to make a valid will or proving undue influence so operating upon her as to destroy the free agency of testatrix, rested upon petitioners.

There is evidence to support the court's finding, and it does not clearly appear to be erroneous. It will therefore not be disturbed. Travis v. Travis, 81 Fla 309, 87 So. 762; Douglas v. Ogle, 80 Fla. 42, 85 So. 243; Hill v. Beacham, 79 Fla. 430, 85 So. 147; Whidden v. Rogers, 78 Fla. 93, 82 So. 611; Boyd v. Gosser, 78 Fla. 64, 82 So. 758, 6 A. L. R. 500; Brickell v. Town of Ft. Lauderdale, 75 Fla. 622, 78 So. 681; Manasse v. Dutton Bank, 75 Fla. 327, 78 So. 424.

The will being contested is dated July 18, 1916. The will which petitioners allege affected a revocation of the former will was made, according to the evidence, in the fall of 1917, the exact date not being given. Not having been found since the death of the testatrix, and being in her custody, this will, in the absence of other evidence, is presumed to have been destroyed by testatrix with the intention to revoke. Schouler on Wills (5th Ed.) § 1084; Rood on Wills, § 356; Jaques v. Horton, 76 Ala. 238; Scott v. Maddox, 113 Ga. 795, 39 S.E. 500, 84 Am. St. Rep. 263; Newell v. Homer, 120 Mass. 277; Hamilton v. Crowe, 175 Mo. 634, 75 S.W. 389; In re Colbert's Estate, 31 Mont. 461, 78 P. 971, 80 P. 248, 107 Am. St. Rep. 439, 3 Ann. Cas. 952; Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 96 N.W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 Ann. Cas. 306; In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025; Stetson v. Stetson, 200 Ill. 601, 66 N.E. 262, 61 L. R. A. 258; In re Willitt's Estate (N. J. Prerog.) 46 A. 519; Lane v. Hill, 68 N.H. 275, 44 A. 393, 73 Am. St. Rep. 591. Having been lost or destroyed, the execution and contents of this will are proved by parol. Assuming it to have been valid and to have contained a general clause revoking former wills, but to have been destroyed during the life of testatrix, what effect, if any, did its execution have upon the will of July 18, 1916 in existence at the time of the death of testatrix? It is conceded that this is the decisive question in the case. On behalf of petitioners it is contended that the execution of the latter will operated to revoke and annul the former one. But on the other hand it is contended that the latter will having been lost or destroyed prior to the death of the testatrix, it or the revocatory clause thereof, could have no effect whatever upon the former will.

Statutes on the subject of revocation of wills are as follows:

'No such devise or disposition of lands, tenements or hereditaments, or any part or clause thereof, shall be revokable by any other will or codicil, unless the same be in writing and made as aforesaid, but every such last will and testament, devise, or disposition may be revoked by any other writing signed by the testator, declaring the same to be revoked, or operating as a revocation thereof by law, or by burning, canceling, tearing, or obliterating the same by the testator or by his direction and consent, or by the act and operation of law.' Section 3596, Rev. Gen. Stat.

'No will or writing concerning any personal property shall be

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