Zinnser v. Gregory

• Decision Date: 25 January 1955
• Citation: 77 So.2d 611
• Parties: Hattie S. ZINNSER, Irene Worster and Edna C. Rutkin, Appellants, v. B. A. GREGORY, Lloyd B. Browning and Donn Gregory, as Executors of the Will ofEmmitte H. Carter, Deceased, Appellees.
• Court: Florida Supreme Court

Page 611

77 So.2d 611

Hattie S. ZINNSER, Irene Worster and Edna C. Rutkin, Appellants, v. B. A. GREGORY, Lloyd B. Browning and Donn Gregory, as Executors of the Will ofEmmitte H. Carter, Deceased, Appellees.

Supreme Court of Florida, En Banc.

Jan. 25, 1955.

Ramseur, Bradham & Clark, St Petersburg, Joseph P. Lieb and Fowler, White, Gillen, Yancey & Humkey, Tampa, and Cotton & Shivers, Tallahassee, for appellants.

Gregory & Cours, Tampa, for B. A. Gregory, Lloyd B. Browning and Donn Gregory as Executors of the Will of Emmitte H. Carter, Deceased, Hardee & Hardee and Paul Game, Tampa, for Mildred E. Dennis, appellees.

MURPHREE, Associate Justice.

Emmitte H. Carter executed his last will and testament on February 13, 1953, and died of a heart attack the following day, leaving an estate valued at nearly $500,000. Surviving was a brother, a sister, and four nieces, the children of a deceased brother and sister. The will was duly admitted to probate, but shortly thereafter three of the nieces, appellants herein, filed their petition to revoke the probate of the will.

The estate consists principally of improved real estate in St. Petersburg and Tampa, Florida. It was acquired by the decedent through a deed from and under the will of his sister, Rhoda L. Jones, who died in 1947.

Carter, in his will, remembered his sister, Loca L. Brock, his brother, Sumter A. Carter, and 'his friend' Mildred E. Dennis, but left nothing to any of his nieces. The will provided a life annuity of $150 per month for his sister, together with a life estate in a place of residence, with taxes, insurance and maintenance expenses paid; a life annuity of $100 per month for his brother, and the use for life of a farm with taxes, insurance, and maintenance expenses paid; and for 'his friend', Mildred E. Dennis, an annuity for life of $500 per month, and some silverware of no great value. Subject to the foregoing, the residue of the estate was placed in trust with the three designated executors to be eventually used for the purpose of establishing a hospital to be known as the 'Emmitte H. Carter Memorial Hospital', upon the site of testator's home place at Tampa.

B. A. Gregory, who was Emmitte H. Carter's personal attorney for many years, drafted the will in question. Named therein as executors and trustees of the estate were B. A. Gregory, his son, Don Gregory, and Lloyd B. Browning.

Carter's will vested in the executors very broad powers relative to the administration of the estate, provided that they should serve without bond, and left to their discretion the time and the manner in which the 'Emmitte H. Carter Memorial Hospital' was to be set up and operated, subject to the said bequests to Loca L. Brock, Sumter A. Carter and Mildred E. Dennis.

Appellants advance three theories in their petition to revoke the probate of Carter's will, namely:

(1) That Carter acquired the estate by deed and device from his sister, Rhoda A. Jones, with the verbal understanding with her that he would eventually divide the same among her relatives, which included the appellants. Carter, therefore, held the property of the estate under a resulting or constructive trust, and could not legally dispose of it by will to the exclusion of the appellants.

(2) That Mildred E. Dennis and B. A. Gregory through the exercise of undue influence upon Emmitte H. Carter caused him to execute the said will.

(3) That Carter was suffering from Monomania, directed toward his relatives, to the extent that he was devoid of testamentary capacity to make a valid will, insofar as the appellants were concerned.

To the petition, motions to dismiss and motions to strike most of its principal allegations, were filed by the appellees, Mildred E. Dennis and the three executors of the estate. The Probate Court concluded that the facts alleged in the petition were not sufficient to warrant revocation, so the motions to dismiss were sustained. On review, the Circuit Judge affirmed the ruling of the County Judge.

In taking this appeal, appellants have listed thirty-four assignments of error. After considering each of them it appears to us that this cause can be fairly determined by an examination of the three theories advanced by appellants in their petition to revoke probate of the will, as stated above.

The contention that Carter held title to the estate, consisting principally of real estate, in trust for the heirs of Rhoda A. Jones, and therefore, could not by will divest appellants of their alleged interest therein, provokes the question of jurisdiction of the Probate Court to determine title to the said real estate. Both courts below correctly held that this issue was determinable only in the Circuit Court. Inasmuch as the contest here is by claimants against the estate, rather than being a contest between beneficiaries of the estate, it could not be otherwise. See: In re Lawrence's Estate, Fla., 45 So.2d 344, 345, wherein it is said:

'It clearly follows that when, as here, it is made to appear that third parties bona fides assert title adverse to the estate in real estate claimed by the personal representative or beneficiaries to constitute a part of the estate, resort must be had to the Circuit Court to settle such question of title, if this is necessary to a proper administration of the estate. We do not hold that as between the beneficiaries of an estate, claiming as such, real estate, title to which is in question, may not be dealt with as a part of the estate, and the jurisdiction of the County Judge exercised with respect thereto. But, as between the estate (or beneficiaries) and third persons, the determination of title to real estate can only be made by the Circuit Court.'

Undue influence was defined by this Court in the case of In re Peters' Estate, 155 Fla. 453, 20 So.2d 487, 492, as follows:

'Undue influence contemplates over persuasion, coercion, or force that destroys or hampers the free agency and will power of a testator. Mere affection or attachment or a desire to gratify the wishes of one highly esteemed, respected or trusted may not of itself amount to undue influence affecting the testamentary capacity of a testator. See Newman v. Smith, 77 Fla. 633, 82 So. 236. To authorize a court to deny or revoke the probate of a will on the ground of undue influence there must be active use of such influence for the purpose of securing the execution of the will to such an extent as to coerce the mind of the testator, so that it cannot be said that the testator was acting voluntarily of his or her own free will and volition.'

With respect to the charge of undue influence against Mildred E. Dennis, the petition alleges:

'Mildred E. Dennis * * * had no claim whatever on the bounty of the said Emitte H. Carter * * * On repeated occasions the said Mildred E. Dennis stated that Emmitte H. Carter feared her and was under the greatest degree of apprehension from her. She also stated that Loca L. Brock, the sister of Emmitte H. Carter, could not visit in his home without her consent, and that Emmitte H. Carter could not visit in the home of Loca L. Brock without her consent * * * that Mildred E. Dennis exerted a baneful influence over the said Emmitte H. Carter; and that the...