Yost's Estate, In re, 59-107

• Decision Date: 08 February 1960
• Docket Number: No. 59-107,59-107
• Parties: In re ESTATE of Minerva J. G. YOST, Deceased. VARIETY CHILDREN'S HOSPITAL, a nonprofit corporation under the laws of Florida; and Crippled Children's Society, a non-profit corporation under the laws of Florida, Appellants, v. Eva Edmondston Grater MAGEE, as administratrix c.t.a. of the estate of Minerva J. G. Yost, deceased, and individually; George T. Clark, as administrator ad litem; and Edith G. McCrea, Winston, McCrea and Thompson McCrea, Appellees.
• Court: Florida District Court of Appeals

Page 753

117 So.2d 753

In re ESTATE of Minerva J. G. YOST, Deceased.

VARIETY CHILDREN'S HOSPITAL, a nonprofit corporation under the laws of Florida; and Crippled Children's Society, a non-profit corporation under the laws of Florida, Appellants, v. Eva Edmondston Grater MAGEE, as administratrix c.t.a. of the estate of Minerva J. G. Yost, deceased, and individually; George T. Clark, as administrator ad litem; and Edith G. McCrea, Winston, McCrea and Thompson McCrea, Appellees.

No. 59-107.

District Court of Appeal of Florida, Third District.

Feb. 8, 1960.

Brunstetter, Netter & Buchmann, and S. Grover Morrow, Miami, for appellants.

Hudson, McNutt, Campbell, isom & Rearick, Grady C. Harris, and George T. Clark, Miami, for appellees.

CARROLL, CHAS., Judge.

This is an appeal from an order of the county judge's court in Dade County denying probate of a codicil. The original of a duly executed codicil could not be found, and the court rejected a proffered executed copy upon finding that the original had been in the possession and control of the testatrix, and, therefore, that there was a presumption she had destroyed and revoked the codicil, and that such presumption had not been dispelled.

The determinative question, as stated and argued by appellants, is whether there was competent evidence to support the trial court's finding that the testatrix had possession of the codicil. We hold that the court's finding in that respect was clearly wrong and not supported by any competent substantial evidence. In so concluding, we have noted and given due effect to the established rule that an appellate court should not disturb the findings of a county judge's court in a probate matter except upon finding an absence of substantial evidence to support the trial court's finding or that the legal effect of the evidence as a whole was misinterpreted by the trial court. In re Evers' Estate, 160 Fla. 225, 34 So.2d 561; In re Wider's Estate, Fla.1952, 62 So.2d 422; In re Zimmerman's Estate, Fla.1956, 84 So.2d 560.

This case was not decided on conflicting testimony. Only one witness testified concerning the making of the codicil and its subsequent handling or disposition prior to the time Minerva Yost died.

The material facts were not in dispute. A brief statement of certain of them seems essential. The testatrix made a will in 1948 in Florida. Later she visted Norristown, Pennsylvania, where she had lived previously, and left her will with her cousin Frank Kenneth Moore, a lawyer of that city. The will was sealed in an envelope, and she instructed him to keep it for her but not to examine its contents. The testatrix had no spouse or lineal descendants. Her will contained bequests of $5,000 to each of her four nieces and nephews, with the residue left to her sister and one of the nieces. Her cousin, Moore, in whose care she left her will, did not know its contents other than that the beneficiaries were her relatives.

In 1955, when Mrs. Yost was about 90 years old, she journeyed from Florida to Pennsylvania for a short stay, and while there she had Moore prepare a codicil changing her will to provide that the residue of her estate should go to 'Crippled Children's Hospital of Dade County Florida.' The sister of the testatrix, whom she had named in her 1948 will as a residuary legatee had died, and the other residuary legatee, a niece, also had a specific bequest of $5,000. The lawyer, Moore, was reluctant to comply with the wish of the testatrix to change her will in that respect, and he delayed, and sought to dissuade her. She remained firm in her purpose, and the codicil was prepared and executed, and was left with Mr. Moore by the testatrix who instructed him to keep the codicil for her. The codicil went into his office safe, which also held the will. Although Moore testified it was his usual custom to retain and file in his safe only an executed copy of a will or codicil he prepared for a client, and for the client to take the original, his testimony, which the trial court found to be generally vague, was definite on the point that in this instance he had kept the original of Mrs. Yost's will in his safe at her request, and that she had left the original of her codicil with him with instructions to keep it for her.

The witnesses to the execution of the codicil were Moore, his wife and his secretary. The secretary was new in the office and remained in his employ only a few weeks. She married and moved away, and her whereabouts were not learned until she was located through effort of appellants a short time after the entry of the order appealed from.

Referring again to the time of the making of the codicil, the record shows that the testatrix returned to Florida several days thereafter. She had no further conversation with Moore regarding the codicil; she made no change in her instructions to him to keep it; there is no evidence that she returned to his office; he accompanied the testatrix to the train when she left; and she did not further discuss the codicil with him, nor he with her. She died a few months later. Moore produced the will, but not the codicil, and he did not disclose the fact that the codicil had been made until approximately a year after the will had been produced and filed for probate. At that late date he informed the attorney for the administratrix of the making of the codicil, and produced the executed copy, which he had 'found' in his safe.

The original of the codicil being lost and unaccounted for, the question of the acceptability for probate of the executed copy of the codicil turned on whether the original codicil was entrusted to Moore and remained in his charge and custody, or whether the testatrix, after having left the codicil with Moore with express instructions to him to keep it for her with her will, had somehow come into possession of the codicil and retained it herself.

This is so because if the testatrix entrusted the codicil to her lawyer, and he retained it, his failure to find and produce it on her death would not give rise to any presumption of its revocation. See 57, Am.Jur., Wills, §§ 549, 568; 95 C.J.S. Wills § 385c; Annotation, 3 A.L.R.2d 949, 957, 968. On the other hand, if the testatrix kept the codicil, or, after entrusting it to her lawyer, gained or regained possession herself, and it could not be found or produced following her death, it would be presumed, in the absence of other evidence, that she had destroyed and revoked the codicil. See Schaefer v. Voyle, 8 Fla. 170, 102 So. 7; Thomas v. Thompson, 114 Fla. 833, 155 So. 321, 323; Stewart v. Johnson, 142 Fla. 425, 194 So. 869, 871; In re Evers' Estate, supra, 160 Fla. 225, 34 So.2d 561; In re Washington's Estate, Fla.1952, 56 So.2d 545.

Those two propositions mark the principal divergent contentions of the parties. Appellants contend the evidence established that Moore was entrusted with the codicil, and that there is no substantial evidence that the testatrix later obtained it. Appellees contend, and the trial court so found, that a possibility that the testatrix could have returned to Moore's office and obtained the codicil from his safe without his knowledge, was sufficient to support a finding that she did so, and that it was she, and not Moore, who had possession of the codicil.

There is no need, as we see it, to concern ourselves with the problem of the claimed presumption that the testatrix revoked the codicil. That presumption would come into effect only if the evidence should establish that the testatrix had and retained possession of the codicil. It is not without reluctance that we must hold the learned trial judge in error in this respect, bur the record simply will not support a finding that the testatrix had possession of the codicil. Such a finding could be reached only at the top of a pyramid of inferences. It would be necessary to infer that the testatrix, after deciding to leave her codicil with her will in care of her attorney changed her mind, but chose not to tell him of that decision; that she went to his office at a time when Moore was not there, during the few days before she returned to Florida; that she was able to prevail upon his secretary to go into his safe, in Moore's absence, remove the codicil and give it over to the testatrix, without taking any receipt or noting the transaction, and without reporting it to her employer; and that when Moore took the testatrix to the train and saw her off to Florida, if she had obtained the codicil from his office in his absence, that she would not have mentioned it to him.

In Commercial Credit Corporation v. Varn, Fla.App.1959, 108 So.2d 638, 640, in an opinion by Justice Thornal sitting as an associate judge of the First District Court of Appeal, it was said:

'* * * The rule is clear, however, that the inference of the existence of an esssential fact to be drawn from circumstantial evidence cannot be made the basis of a further inference of an essential fact, unless it can be said that the initial inference was...