Witt's Estate, In re

• Decision Date: 23 March 1962
• Docket Number: No. 2326,2326
• Citation: 139 So.2d 904
• Parties: In re ESTATE of Wilma Lucille WITT, Deceased. Phillips B. DE MANDEL, Appellant, v. The FIRST NATIONAL BANK OF CLEARWATER, as Executor of the Estate of Wilma Lucille Witt, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 904

139 So.2d 904

In re ESTATE of Wilma Lucille WITT, Deceased.

Phillips B. DE MANDEL, Appellant, v. The FIRST NATIONAL BANK OF CLEARWATER, as Executor of the Estate of Wilma Lucille Witt, Deceased, Appellee.

No. 2326.

District Court of Appeal of Florida, Second District.

March 23, 1962.

Rehearing Denied April 25, 1962.

Cody Fowler, Morris E. White and Donald C. Osmond, of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellant.

T. Paine Kelly, Jr., and John A. Curtiss of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

SHANNON, Chief Judge.

Upon petition of The First National Bank of Clearwater, an order was entered by the county judge admitting to probate a document purporting to be the will of Mrs. Wilma Lucille Witt, Deceased. The will was executed on November 24, 1959, and the bank was named therein as executor of Mrs. Witt's estate. Subsequently, on January 1, 1960, Mrs. Witt died, leaving as her only surviving heir at law, Phillips B. deMandel, her brother, the appellant herein, who petitioned the probate court to revoke probate of the will on the ground of testamentary incapacity.

Mrs. Witt's will, which consisted of one page, contained the following article:

'ARTICLE I.

'I do hereby devise and bequeath unto The West Coast Hospital Association, owners and operators of The Morton F. Plant Hospital, of Clearwater, Pinellas County, Florida, in fee simple, all of the property of every kind and character, whether real, personal or mixed, owned or possessed by me at the time of my death.'

Trial was held before the county judge, after which he entered an order denying the petition to revoke probate, declaring the will valid and confirming its admission to probate. It is from this order that the petitioner, Phillips B. deMandel, appeals.

The only issue presented to us on this appeal is whether or not Wilma Lucille Witt was possessed of testamentary capacity at the time she executed the will in question. In support of his argument that she was not, the appellant sets forth the following six points-on-appeal:

1. Is the will involved an unnatural will?

2. Is the burden of proof in this case upon the petitioner to show absence of testamentary capacity or upon respondent to show affirmatively the presence of testamentary capacity?

3. In order to be possessed of testamentary capacity to dispose of an estate exceeding $2,400,000.00, need a testatrix only understand in a 'general way' what she is disposing of and the effect upon her loved ones of the will she executes?

4. May the trial judge disregard scientific testimony as to the effect of narcotics on the testatrix' mind by holding merely that the testimony of the petitioner's pharmacologists was 'nullified' by the testimony of respondent's pharmacologists without explanation?

5. Did the trial judge ignore the cumulative effect of the mental and physical condition of testatrix as well as the effect upon her mental competence by the medication and narcotics that she had taken?

6. Did the trial judge misapprehend and misinterpret the effect of the evidence as a whole?

The appellee states the questions as follows:

1. Is there substantial evidence in the record supporting the findings of the probate judge?

2. Did the probate judge misapprehend the legal effect of the evidence in its entirety?

At the outset, we shall dispose of the matter of the burden of overthrowing a will because of testamentary incapacity. It has been held by the appellate courts of this state that this burden is a heavy one and must be sustained by a preponderance of the evidence. In re Bailey's Estate, Fla.App.1960, 122 So.2d 243; In re Kiggin's Estate, Fla.1953, 67 So.2d 915. This burden lies with the will contestant in such cases as the instant one. Myers v. Pleasant, 1935, 118 Fla. 715, 160 So. 204. This was the ruling made below and we perceive no error in that respect.

As grounds for the assertion that the deceased lacked sufficient testamentary capacity, the petition for revocation of probate stated, in part:

'(a) Sometime in August, 1959, Deceased developed a painful sore under her tongue and on or about October 7, 1959, approximately six weeks before her execution of said alleged will, after her persistent refusals to accept madical analysis and advice, she was informed by one of her physicians that there could no longer be any doubt that said sore in fact was an incurable cancer and that she must either accept treatment or she was doomed to die a horrible and painful death. Refusing treatment for fear that her tongue would be cut out and she would become a 'gibbering idiot', the apprehension and terror of this dreaded death which was created in the mind of said said [sic] Deceased grew steadily greater, as did the constant and ever-increasing pain caused by the deadly cancer spreading under her tongue and into her throat, until at the time of her execution of said alleged will, such apprehension and terror so affected her mind that they became the chief if not the only thoughts in said Deceased's mind.

'(b) Said Deceased in fact did suffer constant and ever-increasing pain for a period of at least several months prior to her execution of said alleged will, and such pain became so great that Deceased became unable even to eat normally and her mind became so confused that her mental powers and faculties were all but destroyed by the time she executed said alleged will.

'(c) For a period of at least two months perior [sic] to her execution of said alleged will, Deceased was administered narcotics and other drugs in such quantities and with such frequency, and herself took in such quantities and with such frequency, that her mental powers of reasoning and memory were severely debilitated, if not destroyed entirely.'

In his twenty-nine page opinion, the county judge briefed the testimony of many witnesses and gave his reasons for finding in favor of the proponent. We quote a small portion of his opinion herewith:

'Mrs. Witt was the chief beneficiary of the large estate of her said husband, receiving almost one-half of it, and she was the recipient under the will of her mother, Mrs. deMandel, of all of the estate of her said mother, whose property was almost entirely given to her by the will of Eli Witt. The appraised value in this Court of the estate of Wilma Lucille Witt was $2,400,853.29.

'Eli Witt's daughter, Ida, was also given a large part of his estate.

* * *

* * *

'Many days of continuous sessions in jury and August, 1960, were consumed in the taking of testimony of witnesses. Forty-six witnesses, in addition to deponents who did not testify in open court, were heard. The report of the testimony of witnesses appearing in court contains two thousand three hundred and fifteen pages. Eighty-eight exhibits, some of them containing many items, were filed, about half of that number for each party. The briefs of law and fact filed on behalf of the petitioner embrace 231 pages in addition to the appendix, and the brief of counsel for the respondent contains 178 pages in addition to an appendix.

* * *

* * *

'Among the witnesses were some eminent scientists and physicians, several of them nationally famous in their specialized fields. Never before in this Court, and seldom in any court, has a more distinguished array of expert witnesses--specialists in narcotics, psychiatry, and internal and diagnostic medicine--come to the witness chair. Especially notable and nationally famous were the four pharmacologists who appeared as witnesses for the respective parties concerning the use of drugs by the decedent and its effect on her central nervous system and mind. Little less distinguished and no less able were the four psychiatrists who also testified in the case.

'The trial of this case was a courtroom drama of the highest order--one producing stimulating interest and compelling attention. Of the many trials in which I have participated as lawyer or as judge, none has surpassed this case in sheer dramatic interest or in the dialetic quality of legal advocacy.

* * *

* * *

'There is some evidence in the record of this case that speaks powerfully in support of the will, more powerfully even than the testimony of any of the doctors or the lawyer to who Mrs. Witt gave directions for it--Mrs. Witt's own writings. It is as if she returned from the grave to defend her will.

* * *

* * * 'All of these checks and stub entries are in the same firm, bold handwriting as those in 1958 and earlier in 1959. Respondent's exhibit No. 27. This is a paper dated 'Fri. Dec. 5 '59' containing a column of figures. It was found among Mrs. Witt's personal effects after her death by Mr. Schoonmaker, a representative of the executor. It is obviously in Mrs. Witt's handwriting. Mr. Schoonmaker testified (p. 1647 et seq. tr.) that the table contained an accurate list of stocks she owned that appear in the Tribune of that date, and that it was an accurate computation. Mr. Schoonmaker went through the list as is reported on successive pages of the record. Using the table of values in the Tribune and multiplying the value of each stock therein published, Mrs. Witt computed the value of the stocks she owned. Some of the stock was listed on the New York Stock Exchange and some was in the 'over-the-counter' list, both carried in the Tribune, and the computations were made from the published lists in the Tribune of Dec. 5, 1959. This was a remarkable exhibition of mental powers. It was not the work of a metastasized brain, not the act of an unbalanced mind, nor even of an affrighted mind; it certainly was not the act of the mind of a child aged three to five. Respondent's exhibits 30 and 21 are composition books found among Mrs. Witt's personal effects after her death. Exhibit 30 contains a list of securities by shares held by Mrs. Witt in 1959 with 12 columns showing dividends according to the month in which payable. Exhibit 31 contains a table of securities held by...