Washington's Estate, In re

• Decision Date: 05 February 1952
• Citation: 56 So.2d 545
• Parties: In re WASHINGTON'S ESTATE.
• Court: Florida Supreme Court

Page 545

56 So.2d 545

In re WASHINGTON'S ESTATE.

Supreme Court of Florida, Division B.

Feb. 5, 1952.

Rehearing Denied Feb. 22, 1952.

A. Z. Adkins, Jr., Gainesville, for appellants.

Lazonby, Dell, Graham & Mills and L. William Graham, all of Gainesville, for appellee.

MATHEWS, Justice.

This is an appeal from the Circuit Court of Alachua County from an order affirming a final order of the County Judge's Court.

Sophronia Washington died December 1, 1939, apparently intestate. She owned and was living on a tract of land in the Sugar Hill Section of Alachua County. She left as heirs several children and grandchildren.

Approximately 11 years thereafter on August 22nd, 1951, Albert Washington, one of her sons, filed a petition in the Probate Court seeking to establish and probate a copy of an alleged lost Will and Testament of the deceased. Several of the heirs of Sophronia Washington filed their motions to strike and motions to dsimiss. The County Judge denied the motions to strike and after some further pleading and testimony, an order was entered establishing copy and probating the same. An appeal to the Circuit Court resulted in a reversal for further proceedings.

After the case was reversed, the County Judge heard further testimony and then made an order re-establishing and admitting to probate, the copy of the alleged lost Last Will and Testament. On appeal to the Circuit Court, the order of the County Judge was affirmed and this appeal is from that order.

The appellants have propounded three questions which may be consolidated into one. The real question is: Was the evidence sufficient to overcome the presumption of revocation, which arose when such will was not found after the death of Sophronia Washington?

There can be little question about what the law is in this state concerning lost or destroyed wills. The rule is well established that when a will has been lost or destroyed, the presumption of law is that the testator destroyed it with intention of revoking it, and the burden of proving to the contrary is on the propounder of the will. See Rdfearn's Wills and Administration of Estates in Florida, 2 Ed., Section 114; Potts et al. v. American Legion Hospital for Crippled Children, 160 Fla. 225, 34 So.2d 561.

In order to determine the correctness of the order of the Circuit Court affirming the order of the County Judge, it is necessary that we review the testimony in this case.

H. C. Baldwin, an attorney in Gainesville, drew a will in 1939. He received word that the deceased wished to talk to him about drawing a will. He went out to see her and she told him what she wanted in the will. The deceased did not tell the lawyer about any of the children except Albert. The attorney heard about other children, and then went back to see her and advised her that the other boys should be mentioned in the will. He was then told to fix the will like it should be so that Albert got the property. He then drew a rough draft of the will, took it out to her house and read it to her. She said it was fine and he then went back to his office and put it in final form, after which he took it back to the deceased's home where it was read to her and duly executed. The will, which he drew, definitely carried out her instructions as to how she wanted the property left. In response to the question: 'What were those instructions?', he replied, 'Albert was to get everything because he was the only one that had taken care of her and had ever done anything for her.'. He produced a carbon copy of the will which was definitely identified as the carbon copy of the will which he had prepared for the deceased, the original of which had been executed. He did not know where the original will was, but Sophronia Washington told him just before she died that the will was in a safe place.

In the original hearing before the County Judge Deborah Washington, the wife of Albert Washington, the chief beneficiary, testified that the will was read in her presence to Sophronia Washington and was executed in her presence. She also testified to conversations she had heard previous to the execution of the will.

In addition to testifying as to what happened at the time of the execution of the will, she also testified that there was a jar at the head of the bed of Sophronia Washington on Monday before she died; deceased sometimes kept papers in the trunk and in the jar; on Sunday after the death of deceased, Pete and Charlie Washington, two of the children of Sophronia Washington, went to the house of Deborah Washington and asked her where their mother's deed was; after that she saw them go in the house and they...