Skelton v. Davis, 60-695

• Decision Date: 05 October 1961
• Docket Number: No. 60-695,60-695
• Citation: 133 So.2d 432,89 A.L.R.2d 1114
• Parties: Annie Davis SKELTON, Appellant, v. Robert DAVIS, Sr., Executor, Appellee.
• Court: Florida District Court of Appeals

Page 432

133 So.2d 432

89 A.L.R.2d 1114

Annie Davis SKELTON, Appellant, v. Robert DAVIS, Sr., Executor, Appellee.

No. 60-695.

District Court of Appeal of Florida, Third District.

Oct. 5, 1961.

George G. Graham, Miami, for appellant.

Louis Winter, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.

HENDRY, Judge.

The appellant is one of the five living children of Annie B. Davis, deceased. She is appealing from an order of the county judge's court denying her petition for revocation of probate of her mother's will. The probated will directs that substantially all of the rather large estate be divided among three of the children to the exclusion of the appellant and another daughter, both of whom were previously instrumental in having their mother declared incompetent to handle her affairs, by the circuit court, and made a ward of the court in proceedings under the applicable provision of Chapter 747, Fla.Stat., F.S.A. The petition for appointment of the curator under this statute was filed, by these two daughters, in the circuit court in and for Dade County, Florida, on December 17, 1956, and on January 10, 1957 the circuit court entered its decree appointing a curator and making Annie B. Davis, the mother, ward of the court, upon a finding by the court that 'the said Annie B. Davis has become, by reason of her age, unable to take care of her property, or manage and conduct her financial and business affairs, and in consequence thereof, is liable to dissipate or lose the same, or to become the victim of designing persons, and is thereby in need of the protection of this Court and should become a Ward of the Court, and that the appointment of a Curator to handle and conduct her affairs is proper, appropriate and reasonably necessary for the best interests of the said Annie B. Davis'. The decree stated further:

'* * * It is not the intention of this Court, by this order, to unduly restrict or inhibit the personal activities of said Annie B. Davis, who shall be in all ways free to act as she desires, except in the direct management of her business affairs.'

'* * * In all respects, the Statutory procedure set forth in Chapter 747., pertaining to the appointment of curators, and the proceedings thereon, as specified in Chapters 747.05 to 747.18 inclusive, Florida Statutes, shall apply and be followed in this cause.'

The three children who had not joined in the petition for a curator appealed from the decree of the circuit court. The Supreme Court in affirming the decree appointing the curator, Davis v. Carter, Fla. 1958, 107 So.2d 129, noted that prior to the curatorship proceedings, Annie B. Davis was able to rely on a son who until his death had advised and assisted her in the management of her financial affairs. In addition, the court took cognizance of the animosity existing among her children, who had aligned themselves into two groups, each suspicious of the other.

In August 1956, about five months before the curatorship proceedings commenced, Annie B. Davis had executed a will which provided that the estate be divided into six equal shares, with one share going to each of the five living children and the sixth share going to the heirs of a deceased child of the testatrix. On January 21, 1957, eleven days after the circuit court had entered its decree making Annie B. Davis a ward of the court and appointing a curator to handle her financial and business affairs, she executed a will that revoked the previous will. In the new will the two daughters who had filed the petition for a curator, were bequeathed only one hundred dollars each. The other three children of the testatrix were left substantially all the remainder of the estate to share equally. The testatrix stated in the will:

'The reason that I am not bequeathing and devising to my daughters, Gertrude and Annie, any more of my property than above specified is due to the fact that they have harassed me recently with litigation in Alabama and in Miami, Florida, even going to the extent, in Miami, Florida, of applying for the appointment of a curator to take charge of my property on the ground that I am incompetent. Of course I resent this action on their part as I am not incompetent, and I thoroughly understand my business affairs and know what I am doing, and this will has been made after prayerful deliberation.'

The two daughters, Gertrude and Annie, and the curator learned of this will after the death of the testatrix on February 7, 1960. The will was admitted to probate on February 15, 1960. On March 18, 1960, appellant, Annie Davis (Dolly) Shelton, filed her petition in the county judge's court for revocation of probate of the will, alleging testamentary incapacity of the testatrix at the time of the execution of the will and her lack of power to execute a will while a ward of the court, without first complying with the requirements of the appropriate provisions of Chapter 747 of the Florida Statutes, F.S.A. Her petition was denied and it is from that order of the county judge that this appeal is taken.

Turning now to appellant's first ground for appeal, to-wit: the court erred in finding that the testatrix had testamentary capacity.

The record shows that two court appointed physicians examined the testatrix, in connection with the curatorship proceedings, and were of the opinion that the testatrix was in better mental health than the average eighty year old person, although she did have difficulty managing her business affairs. One of the physicians was also her treating physician from 1955 to April, 1957. In the proceedings before the county judge he testified he had seen the testatrix, as a patient, at his office on January 28, February 1, February 14, February 22, March 8 and April 12 in the year 1957. He was of the opinion that from the standpoint of her mental health there had been no change from the time he testified in the curatorship proceedings to the date of her last visit to his office.

In addition, three of the seven subscribing witnesses testified that the testatrix did possess all her faculties at the time the will was executed and that she appeared to be alert. They were also of the opinion that the testatrix had the ability to understand the nature of the instrument she was executing, and that she possessed an awareness of the identity of her children, grandchildren and great-grandchildren.

It should be noted that the county judge did give effect to the evidence introduced by the appellant relating to the curatorship proceedings. Although generally, the petitioner in a proceeding to revoke probate of a will, must establish the lack of testamentary capacity, the county judge ruled that the adjudication of incompetency, by the circuit court in appointing the curator, resulted in a prima facie case for the appellant. It was thus incumbent upon the appellees to come forth with evidence as to the capacity of the testatrix at the time of the execution of the will, since the burden had shifted to appellee as the proponent of the will. As to this ruling, appellant does not complain. However, appellant contends that appellee did not sustain its burden in overcoming the prima facie case of appellant, and that the finding of testamentary capacity was not supported by the evidence.

The right or privilege of disposing of property by will is highly valuable, and it is the policy of the law to hold wills good wherever possible. As long as a testator does not will against the law or public policy he may will as he chooses, and has the right to select the objects of his bounty. In re Starr's Estate, 125 Fla. 536, 170 So. 620.

Even a wholly and unreasonable and ill founded prejudice against a child or other relative is not of itself a ground for invalidating a testator's will, for people may hate their relatives for bad reasons without being deprived of testamentary power. 57 Am.Jur., Wills, § 76.

The principle of law that testamentary capacity is to be judged solely at the time of the execution of the will is irrefragable and no authority need be cited. The making of a will does not depend on a sound body but a sound mind. The term 'sound mind' means the ability of the testator 'to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator's relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed'. Newman v. Smith, 77 Fla. 633, 82 So. 236, 241; Neal v. Harrington, 159 Fla, 31 So.2d 391; In re Wilmott's Estate, Fla.1953, 66 So.2d 465, 40 A.L.R.2d 1399; In re Bailey's Estate, Fla.App.1960, 122 So.2d 243.

The issue of the capacity of a testator is one for the trier of fact. It is a well-settled rule of judicial administration that an order of a county judge sitting in probate not be disturbed on appeal where there is susbstantial competent evidence to sustain...