Thomas v. Williamson
| Decision Date | 13 March 1906 |
| Citation | 40 So. 831,51 Fla. 332 |
| Court | Florida Supreme Court |
| Parties | THOMAS v. WILLIAMSON. |
Error to Circuit Court, De Soto County; Basom H. Palmer, Judge.
Action by Ivey v. Williamson against Isam B. Thomas. Judgment for plaintiff, and defendant brings error. Reversed.
Syllabus by the Court
Section 1110 of the Revised Statutes of 1892, providing that 'copies of all wills and letters testamentary or of administration, heretofore recorded in any public office of record in this state, when duly certified to by the keeper of said records, shall be received as evidence in all the courts of record in this state,' is not applicable to wills and letters testamentary or of administration which were recorded after the adoption of the Revised Statutes.
Section 1111 of the Revised Statutes of 1892 provides for the admission and reception in evidence, in all cases and in all courts and places, of copies of 'any record, pleading document, deed, conveyance, paper, or instrument of writing,' when the same 'is, or may be required or authorized to be made or filed or recorded in any public office of this state or of any county thereof,' duly certified as therein required, 'with the like force and effect as the original thereof might be,' provided that the court or judge might require the party offering the same to produce or account for the original of such copy, 'if the same shall be deemed necessary for the attainment of justice.'
Section 1814 of the Revised Statutes of 1892 provides that all wills of which probate shall be granted, together with the letters testamentary, shall be recorded in the office of the county judge.
Section 1810 of the Revised Statutes of 1892 provides that 'the probate of wills so far as concerns any personal estate shall be conclusive as to the validity of the will of which it is the probate, and the probate of wills so far as concerns real property shall be prima facie evidence of the validity of wills of which it is the probate, in any suit or controversy in relation to or concerning the property thereby devised or bequeathed.'
General objections to evidence proposed, without stating the precise ground of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial, improper, and inadmissible for any purpose or under any circumstances, when a general objection thereto is sufficient.
Section 1810 of the Revised Statutes of 1892 having made the probate of wills conclusive as to personalty and prima facie evidence of the validity of wills as to real property, the manner of execution and of attestation of a will admitted to probate cannot be attacked in a collateral proceeding.
Prima facie evidence is such as in the judgment of the law is sufficient to establish the fact, and, if unrebutted, remains sufficient for that purpose.
Objections interposed to the introduction in evidence of a written instrument, which do not appear upon the face thereof, but would have to be proved by extraneous evidence, should be overruled.
Chapter 4730, p. 119, of the Laws of 1899, providing that 'whenever a person who is the head of a family residing in this state and having his homestead herein, shall die and leave a widow surviving him, but no children, the homestead shall descend to the widow and shall not be the subject of devise by last will and testament,' is not in conflict with section 4 of article 10 of the Constitution of 1885.
Our state Constitution is a limitation upon power; and, unless legislation duly passed be clearly contrary to some express or implied prohibition contained in the Constitution, the courts have no authority to pronounce it invalid.
COUNSEL Forrester & Burton, for plaintiff in error.
John H Hancock, for defendant in error.
This is an action of ejectment instituted in the circuit court for De Soto county by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, which resulted in a verdict and judgment for the plaintiff, to which judgment the defendant took writ of error returnable to the present term of this court. No point is made on the pleadings, the declaration being substantially in the statutory form, to which a plea of the general issue was filed. The plaintiff, in support of his title, introduced in evidence a United States patent to Ziba King embracing the land in question, a warranty deed from Ziba King and wife to William A. Williamson, and certified copies of the last will and testament of William A. Williamson, of all the probate proceedings relating thereto, and of the letters testamentary, by which will all the property of the testator both real and personal, was in terms devised and bequeathed to his brother, the plaintiff, who was also appointed executor of the will; said devise being subject, however, to a life estate in the property to Lizzie Williamson, the wife of the testator, in the event she should survive him. To the introduction of all these papers the defendant objected upon the grounds: 'First, that the same are immaterial and irrelevant; second, that the will shows upon its face that it was not signed and executed in the manner required by law.'
The trial judge reserved his ruling upon the objections whereupon the plaintiff then introduced J. H. Hancock as a witness in his behalf, who testified in substance that he was personally acquainted with the testator in his lifetime, who lived with his wife upon the land in question as his homestead up to the time of his death and left his widow surviving him, but no children, and no other members of his family; that the testator died about one year before his wife; that the plaintiff was the natural brother of the testator; and that the defendant was not related to the testator in any way. The defendant then objected to the proffered documentary evidence upon the further ground 'that the said will is null and void and inoperative to devise the homestead of the testator; he having died leaving a widow surviving him, but no children.' The trial judge then overruled all the objections and admitted the papers in evidence, to which ruling the defendant duly excepted, and which forms the basis of the second assignment.
The defendant then testified in his own behalf in substance that he had lived in De Soto county 15 years, and that he knew both the testator and his wife during their lifetime; that they lived upon the land in question as their homestead until their death, and had no children; that the testator's widow died on the 21st day of December, 1904, about 14 or 15 months after her husband.
The defendant then offered in evidence a deed executed by Elizabeth Williamson, the widow of the testator, bearing date the 6th day of December, 1904, to the defendant, conveying the land in question and being properly executed and acknowledged; but to the reading of the same in evidence the plaintiff objected on the ground that 'said deed purports on its face to be made by Elizabeth Williamson to one Isam B. Thomas, when in law and in fact the grantor in said deed owned no title of any character that she could convey by deed.'
This objection was sustained, to which an exception was duly noted, and upon which is based the third assignment.
The parties having concluded and submitted their evidence, the court, after argument of counsel, on its own motion, instructed the jury as follows: 'Gentlemen of the jury, you will bring in a verdict in this case for the plaintiff.' To the giving of which instruction the defendant excepted, and upon this ruling is predicated the fourth assignment.
The defendant made a motion for a new trial, which was denied, and an exception noted to the ruling, which forms the basis for the first assignment.
We shall first consider the second assignment, based, as we have seen, upon the overruling of the objection to the admission of certified copies of the will and probate proceedings in evidence.
Section 1110 of the Revised Statutes of 1892 provides that 'copies of all wills and letters testamentary or of administration, heretofore recorded in any public office of record in this state, when duly certified to by the keeper of said records, shall be received as evidence in all the courts of record in this state'; but it is obvious that this statute could not have applied in the instant case, for the reason that the will and letters testamentary were recorded after the adoption of the Revised Statutes.
Section 1111 of the Revised Statutes of 1892, reads as follows:
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