In Re: Estate of Donne'ly v. Ashby , 137 Fla. 459 ( 1938 )

The last will and testament of Mary A. Donnelly was admitted to probate by the county judge of Dade County the thirteenth of November nineteen thirty-four. In it testatrix made bequests to Mrs. Gussie Budge and Mrs. Clara Hunt, friends of long standing, and to J. Winifred Gold, Margaret Gold, William H. Gold (residuary legatee) or in the event of his death, Glenn W. Gold. The latter was named executor.

A few months later, Walter S. Ashby and others petitioned the county judge to revoke his action in allowing the probate of the will, claiming the same to have been executed when the testatrix was of unsound mind, and charging that it was the result of fraud and undue influence on the part of the residuary legatee.

A will bearing date of 17 March, 1924, was alleged to be the true last testamentary disposition of Mary A. Donnelly's property.

Upon these issues the judge heard the testimony of witnesses introduced by the proponents and contestants, and denied the petition.

The Circuit court reviewed the ruling on appeal and disagreed with the County Judge, so the matter was presented here on an appeal from an order of reversal. After decision of affirmance by this court, a rehearing was granted.

A study of the record has revealed that testatrix was an elderly woman, who had for many years served as housekeeper for Richard Ashby, the widower of her deceased sister. Ashby and testatrix' sister had no children but the former, who died in the year nineteen thirty-three, was survived by two children and three grandchildren, the issue of his first marriage.

In May, nineteen thirty-two, Richard Ashby addressed a letter to William H. Gold, instructing him to assign to Mary Donnelly certain securities to insure her an income after Ashby's death and upon her demise they were to be delivered to Ashby's heirs.

About a year later, Ashby was declared insane in proceedings, according to some of the testimony, instigated by his children. In the same year, 1933, a decree was entered ordering Mary A. Donnelly to deliver to the guardians of Ashby the securities theretofore mentioned in Ashby's instructions to Gold.

The respective dates of the final order in the lunacy petition, the decree ordering return of the securities and the execution of the will involved in this contest were: March first, April twenty-ninth and November fifteenth, all in the year nineteen thirty-three.

It is strenuously and forcefully argued that, in the disposition of her worldly goods, Mary A. Donnelly was unduly influenced by William Gold and that the effectiveness of his selfish efforts to ingratiate himself was reflected in the provisions of her testament giving his family and him generous bequests, in fact all of her estate, except the legacies to two old friends.

This, of course, was a circumstance rightfully considered with all of the other facts in the case, and by itself might raise suspicion that Gold showed testatrix much attention during the years immediately preceding her death, thereby profiting because of the tractability of an aged person.

It was argued, too, that by his activity in procuring some one to draft her will he showed inordinate interest in her affairs and that this was further evidence of his exercise of undue influence over her.

In Theus v. Theus, 119 Fla. 190, 161 South Rep. 76, the court said that a will would not be rendered invalid because the sole beneficiary arranged its preparation and execution, nor would such fact raise the presumption of undue influence. It was stated that this would arouse "suspicious scrutiny." In other words, we understand that such an interest on the part of a beneficiary is but a suspicious circumstance to be considered with all other happenings throwing light on the will and intent of the testatrix when the instrument was signed by her.

Undue influence has been treated by the court repeatedly, but it seems proper to refer to these decisions again here. In Newman v. Smith, 77 Fla. 666, 82 South. Rep. 236, is found this exposition:

"Undue influence comprehends over-persuasion, coercion, or force that destroys or hampers the free agency and will power of the testator. Mere affection or attachment, or a desire to gratify the wishes of one beloved, respected, and trusted, may not, of itself, amount to undue influence affecting the testamentary capacity of a testator. Ordinarily a presumption of undue and improper influence does not arise from the mere existence of interest or opportunity to exert such influence." 82 South Rep. text 246.

And, in Peacock v. DuBois, 90 Fla. 162, 105 South Rep. 321, the following quotation from Howard v. Farr, 115 Minn. 86,131 N.W. Rep. 1071:

"To constitute ``undue influence,' the mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another." 90 Fla. 165, 105 South. Rep. text 322.

The degree of influence which is considered necessary to invalidate a will was also enunicated in Peacock v. DuBois,supra, wherein this statement appears at page 322 of 105 South. Rep.:

"The rule seems to be well settled that undue influence justifying the setting aside of will, deed, or other contract must be such as to dethrone the free agency of the person making it and rendering his act the product of the will of another instead of his own. The character of the transaction, the mental condition of the person whose act is in question, and the relationship of the parties concerned to each other, are all elements that may be taken into consideration in applying the rule. Johnson v. Farrell, 215 Ill. 542, 74 N.E. 760; Allday v. Cage (Tex. Civ. App.) 148 S.W. 838; Councill v. Mayhew, 172 Ala. 295, 55 So. 314; Mullen v. Johnson, 157 Ala. 262, 47 So. 584; Berst v. Moxom, 157 Mo. App. 342, 138 S.W. 74; Burnett v. Smith,93 Miss. 566, 47 So. 117; Dingman v. Romine, 141 Mo. 466,42 S.W. 1087; Franalin v. Belt, 130 Ga. 37, 60 S.E. 146; Francis v. Wilkinson, 147 Ill. 370, 35 N.E. 150; Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N.E. 369; Marx v. McGlynn, 88 N.Y. 357, 370; DuBose v. Kell, 90 S.C. 196, 71 S.E. 371; Woodville v. Woodville,63 W. Va. 286, 60 S.E. 140, 144."

See also Marston v. Churchill, just decided by the Court and not yet published. There is a distinct similarity between the facts in Marston v. Churchill, supra, and those in the instant case.

We reiterate that the county judge heard the witnesses in the contest and, therefore, had the opportunity to observe their demeanor on the stand. Thus he had a great advantage over the learned circuit judge, who had to rely on the printed record to learn the truth about the transaction.

The court has ruled that the conclusion of the probate court on conflicting evidence will not be disturbed unless the legal effect of the proof has been misapprehended or there is a lack of evidence to support the findings. Hooper v. Stokes, 107 Fla. 607,145 South. Rep. 855; Parker v. Penny, 95 Fla. 922,117 South. Rep. 703.

The right to dispose of property by last will and testament should be carefully guarded, and the courts should be reluctant to undo after death what the testator in life sought to accomplish by naming those whom he wished to inherit. Doubtless, this sentiment actuated the court in announcing that such instruments would be upheld unless it clearly appeared: "that the free use and exercise of a ``sound mind' * * * was prevented by deception, undue influence, or other means * * * otherwise the right given by statute * * * would be thwarted." Newman v. Smith,Supra, 77 Fla. 648, 82 South. Rep. text 241."

We have referred to the suspicious circumstance of the beneficiary having arranged for the execution of the will whereby he and members of his family received almost the entire estate of the decedent. There was considerable testimony that despite this activity on the part of the residuary beneficiary, the disposition was utterly natural and free from the taint of undue influence. Gold and his family had shown Mary A. Donnelly much attention. She had been angered by the action of the contestant heirs in having Ashby declared insane. Her long association with Ashby was probably the reason for considering them entitled to her bounty. When, by their treatment of him, she was estranged it was not unnatural that she decided to ignore them in her will, any sentimental connection with them having been destroyed. Further support of this theory is found in the evidence of the suit to force Gold to disgorge the securities which he held, including those from which she would benefit under instructions to Gold from Ashby.

This is unquestionably the story the county judge believed. Against it he presumably weighed the testimony tending to show that Gold brought influence to bear upon testatrix, substituted his will for hers while he served in a representative capacity, with the result that he profited while the contestants, heirs of a man to whom her sister had been married, lost.

The judge who conducted the original trial had the power to make the comparison and if he found that the contestants' proof was outweighed by that of proponent, his decision, in the absence of misapprehension, should not have been disturbed by the able circuit judge.

Our examination leads us to believe that there was ample evidence to substantiate the original order and that it should not have been disturbed.

The order of the circuit court is reversed.

TERRELL, C.J., and BROWN and BUFORD, J.J., concur.

WHITFIELD and CHAPMAN, J.J., dissent.