Wartmann v. Burleson

• Decision Date: 25 July 1939
• Citation: 190 So. 789,139 Fla. 458
• Court: Florida Supreme Court
• Parties: WARTMANN et al. v. BURLESON et al.

190 So. 789

139 Fla. 458

WARTMANN et al. v. BURLESON et al.

Florida Supreme Court, Division A.

July 25, 1939

Suit by Louise H. Wartmann and others against Elta Burleson and another contesting the will of Mrs. Ada B. Wartmann deceased. From a judgment upholding the will, the contestants appeal.

Affirmed. Appeal from Circuit Court, Marion County; J. C B. Koonce, judge.

COUNSEL

H. M Hampton, F. R. Hocker, and D. Niel Ferguson, all of Ocala and S. Whitehurst's Sons of Brooksville, for appellants.

Wallace E. Sturgis, of Ocala, for appellees.

OPINION

PER CURIAM.

This is a proceeding contesting a will. It appears that Mrs. Ada B Wartmann, of Citra, Florida, executed her last will leaving the bulk of her estate to two nieces and a nephew. Appellees were designated as her executors. The will was executed in December, 1934, and a codicil was added in June 1937, which reaffirmed the will but made a slight change in disposition of part of the estate.

Appellants are granddaughters of the testatrix and protested the probate of the will on the ground that it was procured through undue influence. Answer was filed to the protest by the proponents of the will, testimony was taken, and on final hearing, the probate judge dismissed the protest and admitted the will to probate. The judgment of the probate Court was affirmed by the Circuit Court and this appeal was prosecuted.

It is contended that by reason of age, ill health, and bereavement from the death of her husband and dislike for her daughter in law, Mother of appellants, the testatrix had incurred a hatred and dislike for her grandchildren, appellants in this case, which became so intense that it caused her to make an unnatural will virtually excluding them from participation in the distribution of her estate.

The fact that collacteral relatives were preferred to the grandchildren may be unusual and unnatural but the testatrix had a right to make such a disposition of her property and unless it be shown that she was mentally incapacitated in some way, the will will not be set aside for this reason. The evidence must show conclusively that she was unbalanced or afflicted with monomania of some kind.

The evidence in this case has been examined and there is no positive proof of undue influence; in fact, practically all the evidence is directed to the mental capacity of the testatrix. The burden is on the contestants who charge undue influence to prove it but when a confidential relationship between the testatrix and the principal beneficiary is shown a presumption of undue influence arises and the burden shifts to the...