Thompson v. Freeman

• Decision Date: 17 July 1933
• Citation: 111 Fla. 433,149 So. 740
• Parties: THOMPSON v. FREEMAN.
• Court: Florida Supreme Court

149 So. 740

111 Fla. 433

THOMPSON v. FREEMAN.

Florida Supreme Court

July 17, 1933

En Banc.

Will contest by Oscar W. Freeman against Mrs. W. B. Thompson executrix of the estate of Mrs. O. W. Freeman, commenced in a county court. Judgment was rendered upholding the validity of the will, but on appeal to the circuit court the county court's holding was reversed, and a judgment was rendered that the probate of the will should be revoked, and the executrix appeals.

Reversed and remanded, with directions. Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.

COUNSEL

Phillips & Thompson, of Clearwater, for appellant.

Wm. E Thompson, Morris E. White, and W. T. Martin, all of Tampa for appellee.

OPINION

DAVIS Chief Justice.

A will contest based on a charge that the will was a forgery was tried before the county judge of Hillsborough county, who decided in favor of the validity of the will. An appeal was taken to the circuit court from the decision of the county judge. Upon consideration of the appeal, the circuit court reversed the holding of the county judge and found from the record that the probate of the will should be revoked. The case is now before this court on an appeal from the decision of the circuit judge.

On July 29, 1929, a written instrument purporting to be the last will and testament of Mrs. O. W. Freeman was presented to the county judge of Hillsborough county for probate. Thereafter the will was admitted to probate in due form of law.

The will, after making certain bequests of real and personal property to the husband of the deceased, Oscar W. Freeman who is the appellee here, leaves a one-sixth interest in an orange grove in Pinellas county which testatrix inherited from her father to her 'blood kin,' designating certain nephews and nieces, all of whom were minors of tender years. In the will as probated, the testatrix named her mother, Mrs. W. B. Thompson, the proponent of the will for probate, as executrix.

On the 2d day of August, 1929, the contestant, the husband of the testatrix, filed before the county judge his petition to revoke the probate of the will, setting up that under the intestate laws of the state of Florida he would be the sole heir of the deceased; that the will was not the true last will and testament of the deceased, and had never been executed by said deceased in the manner required by law; furthermore, that the signature thereto was forged. The petition concluded with a prayer that the court decree that the signature was false, fraudulent, and forged.

On November 8, 1929, the cause was submitted to the Hon. G. E. Cornelius, county judge of Hillsborough county, for consideration upon the issues made up by the pleadings. One of the facts set up by the answer to the petition for revocation of probate was that the original will which had been admitted to probate on July 31, 1929, had been taken from the office of the county judge by counsel for contestant and kept from the court's custody until August 29, 1929, during which time the will was either in the possession of the contestant's attorney or of his prospective witnesses, one of whom resided in Miami; that shortly after the return of the will to the county judge's office on August 29, 1929, the original will had again been taken from the county judge's office by some unknown person, and that it had mysteriously disappeared at that time, and had not since been found.

For the proponent of the will, Mr. O. C. Brooks, an attorney in Tampa, and a brother-in-law of the contestant, testified that either on Thanksgiving or Christmas prior to the death of the testatrix she had requested him to prepare a will leaving a one-sixth interest in a grove she had inherited from her father to her minor nephews and nieces. He further testified that he had, because of his friendship for the contestant, advised the testatrix that he would prefer that she procure the services of some other attorney.

Mrs. Harry Jukes, a sister of the deceased, testified that subsequent to the death of her father the testatrix had discussed with her a number of times her intention to prepare a will, leaving her interest in the grove which she had inherited from her father to her nephews and nieces, because they were her 'blood kin.' It was further stated by Mrs. Jukes that on these occasions the testatrix had stated that it was her desire that her part of the grove should remain in the family; the last of these conversations having taken place at the grove about two weeks before the date upon which the will was purported to have been executed.

In support of the genuineness of the signature appearing on the will, Mr. Edwin L. Bryan, an attorney of Tampa, testified that on the day of the date of the will testatrix, Mrs. O. W. Freeman, had called at his office and had requested him to prepare for her a will; that he had made pencil notations of her instructions with respect to the details of same on a piece of yellow paper, and had thereafter himself personally typed the will in his office on an L. C. Smith typewriter. The sheet of yellow paper referred to by the witness and containing the notations testified to by him was produced in court in corroboration of his statement.

Mr. Bryan further testified that, while he was preparing the will, one Mike Licata, who operated a barber shop on Franklin street in Tampa, came to see him at his office, and that on the occasion referred to, and at the request of the testatrix, he and Licata signed the will as witnesses in her presence and in the presence of each other.

It was also Mr. Bryan's testimony that he knew nothing about Mrs. Freeman's family or estate, and that all the information contained in the will that he had prepared for her was procured from her and noted at the time; that, while he had previously met Mrs. Freeman, he did not recognize her when she first came into his office, but remembered her upon her recalling to him the fact of their former meeting; that he had charged the testatrix $25 for his services in preparing the will, of which amount she had paid him $10 on account and had left the will with him, stating that Mrs. Thompson, her mother, would call for it and pay the balance of his bill; that he made a notation on the back of the will to this effect; that he had folded the will and the notes he had made together and put them in a drawer of his desk; that he had moved his law offices a short time thereafter; and that some months after he had become settled in his new offices he ran across the will and notified Mrs. Thompson, who was named as executrix, advising her of the fact that he held the will and asking that she come to his office, pay the balance of his bill, and take the will with her. The original letter of Mr. Bryan to Mrs. Thompson and the envelope in which it was mailed was offered and received in evidence in substantiation of Mr. Bryan's testimony.

Mike Licata, the other subscribing witness to the will, testified that he had received a check from some one at Ybor City, Tampa, which had been returned to him for lack of funds; that, because of this, he made a visit to the office of Attorney Bryan for the purpose of turning the check over to him for collection; that the date of the visit was late in the afternoon of February 6, 1929, the date on which the will was purported to have been executed and witnessed; that, when he went to Mr. Bryan's office, he noticed that there was a lady in the private office of Mr. Bryan, and that, while Mr. Bryan was transacting his business with this lady, he (Licata) remained in the outer office; that some minutes later Mr. Bryan called him into his private office, introducing him to the lady, whom he had never met before, and at the lady's request and in her presence, and in the presence of Mr. Bryan, he and Mr. Bryan had signed the will as witnesses.

The contestant then called as his first witness Mr. B. W. Cornelius, who testified that he was a clerk in the office of the county judge, and that the will had been filed with him as clerk and probated on July 29th; that shortly after this he had allowed it to be taken from the county judge's office by Mr. Earl Thompson, an attorney, who returned it about thirty days later; that two days after the will had been returned to the county judge's office Mr. John De Marco, an attorney representing the proponent, and Mr. Freeman, the contestant, called together at the county judge's office for the purpose of comparing the signature on the will with the signature of the testatrix on certain checks; that he thereupon discovered that the will had disappeared; and that it had never since been found.

The witness Cornelius was handed what was purported to be a photograph of the lost will, and was asked to testify whether or not it was a true photograph of the signature as he had observed it on the original will. All the testimony of the witness concerning the photograph as being a true photograph of the will that disappeared was objected to by the executrix on the ground that such testimony was part of an indirect attempt to re-establish in the court of the county judge a lost instrument. It was further contended that, since the original will itself had disappeared and could not be produced to be offered in evidence in the pending proceeding, it would have to be re-established in the circuit court as provided in the statutes. Sections 5054-5058, C. G. L., sections 3246-3250, R. G. S.

All the objections made were reserved and preserved throughout the trial and urged in the form of a motion to strike the testimony at the close of the case. The court reserved his ruling and took the entire matter under advisement. The disputed photograph was tendered in evidence, and upon objection...