In re Barton's Will , 24 Fla. Supp. 17 ( 1964 )

GEORGE T. CLARK, County Judge.

Order re-establishing destroyed will and admitting said will to probate: This matter is before the court upon the petition of H. D. Champlin to establish and to probate a lost or destroyed last will and testament and the answer to said petition of Samuel Rand, as administrator of the estate of Niles Simons Barton.

The petitioner produced an unexecuted and unconformed copy of a last will and testament of Niles Simons Barton, dated November _, 1956, and the testimony of the attorney who prepared said will and was one of the witnesses to it. The undisputed testimony is that the will was properly executed and was in the possession of the testator until approximately three weeks prior to his death on March 15, 1964. The testimony also shows that approximately three weeks prior to the death of the testator the will was accidentally destroyed by burning at his home by a friend when the testator was present, and that thereafter the testator stated that he would make a new will, but failed to do so.

Although the destruction of the will was in the presence of the testator, it was not destroyed by his direction with the intent and purpose of revocation, as required by provisions of §731.14, Florida Statutes. Failure to make a new will within a short period of approximately three weeks cannot be construed as such acquiesence in or confirmation of the destruction of the will as to amount to revocation. Strict compliance with said statute is necessary to effect such a revocation. In re Estate of Gross, 144 So.2d 861.

The court finds that the will of Niles Simons Barton was not revoked in his lifetime and remained in existence at the time of his death, although the document itself had been destroyed.

It is therefore ordered and adjudged that the will of Niles Simons Barton is re-established in words and figures as follows —

I, NILES SIMONS BARTON, residing at 2119 S. W. 3rd Street, Miami, Dade County, Florida, being over the age of 21 years, and being of sound and disposing mind and memory, do hereby declare this to be my last will and testament, hereby revoking all former wills by me heretofore made.

I.

It is my will that all my just debts and funeral expenses be fully paid as soon as convenient after the time of my decease.

n.

I give, devise and bequeath to H. D. CHAMPLIN, all of my property, real, personal and mixed, of whatever nature and description and wheresoever situate, which I may own or have the right to dispense of at the time of my death.

In consideration of my leaving all my property to H. D. CHAMPLIN, he has agreed to provide a home and care for my father, LESTER M. BARTON, should my father survive me. In the event that the said H. D. CHAMPLIN shall fail to support and care for my father after my death, I direct that all my property shall pass to DURAND A. HOLLADAY as trustee and direct that said trustee shall hold said property in trust to use in providing a home and caring for my father during his lifetime, and in the event that there is a remainder after the death of my father, then that remainder shall pass to H. D. CHAMPLIN at that time.

HI.

I hereby name and appoint H. D. CHAMPLIN to be the executor of my last will and testament and I expressly confer upon him power as such executor to administer my estate, excusing him from giving any bond, or making any returns to any court. I expressly confer upon him full authority and power to sell and convey any part or all of my estate, at public or private sale, with or without notice, as he may deem best, and without any order of court.

November-, 1956.

Niles Simons Barton

(SEAL)

The foregoing instrument was signed, sealed, declared and published by NILES SIMONS BARTON, as his last will and testament in the presence of us, the undersigned, who at his special request and instance, do attest as witnesses, after said testator has signed his name thereto, and in his presence, and in the presence of each other.

November -, 1956.

Durand A. Holladay Address

Joan Wortman Address

Said last will and testament having been established by the sworn testimony of Durand A. Holladay, one of the subscribing and attesting witnesses thereto, as being the true last will and testament of Niles Simons Barton, it is therefore ordered and adjudged that the last will and testament of Niles Simons Barton, dated November __, 1956, and attested by Durand A. Holladay and Joan Wortman as subscribing and attesting witnesses thereto, be and the same is hereby admitted to probate according to law as and for the true last will and testament of Niles Simons Barton.

Let letters testamentary issue to H. D. Champlin, the executor named in said will, upon his taking and subscribing the prescribed oath.

Samuel Rand, as administrator of this estate is directed to promptly submit his final accounting and to deliver the assets of this estate to the executor, upon his qualification.