Watts v. Newport , 149 Fla. 181 ( 1941 )

After a careful consideration of the record in the light of briefs filed, I am convinced that the decree of the circuit judge was without error and should be affirmed.

Counsel, in presenting the case in their respective briefs, sharply contradict one another as to what is shown by the record and, therefore, a careful study and checking of the record by each member of this Court is essential to the fair and right disposition of the cause.

It would be futile to attempt to set out in this opinion even a summary of all the voluminous testimony taken and considered. It is sufficient to say that the record shows the challenged will to have directed a more logical and more natural disposition of testatrix's property than had been evidenced by either of the former wills. The provisions for bounty to relatives and those having some logical reason to expect to benefit from the devises were largely the same as those contained in prior wills. No fiduciary relation is shown to have existed between the donor and the chief beneficiary, Mrs. Newport. The bequest to Mrs. Newport does not appear to be unreasonable or unnatural, in view of the undisputed fact that for months prior to and after the execution of the will Mrs. Newport had been the only female in the world who, out of kindness and sympathy, had ministered to the comfort and well-being of the infirm old woman. Mrs. Newport had nursed Mrs. Graham, had prepared food which she could eat and had fed it to her as a mother would feed a helpless child. She had cleaned and bathed the old woman and had changed her clothing and linen and had ministered to her needs and necessities as a dutiful daughter would have to a helpless mother, even though it may not have appeared to be appreciated. All of Mrs. Graham's relatives were conspicuously absent. Mrs. Newport had procured nurses, chosen by Mr. Clewis who was Mrs. Graham's friend and financial adviser, to nurse and care for Mrs. Graham when no one else was giving any thought or concern to the old lady's pitiful condition. All the direct testimony is that Mrs. Graham did execute the will in the presence of the subscribing witnesses as her last will and testament. The expert and circumstantial evidence is conflicting but, if anything, it is stronger and preponderates in favor of the premise that she did execute the will. The evidence is convincing that she possessed testamentary capacity at the time of the execution of the will.

The record fails to show that Mrs. Newport ever attempted to exercise any influence over Mrs. Graham as to the disposition of her property. There is no evidence that Mrs. Newport knew the contents of any former will executed by Mrs. Graham and, therefore, the identity of relatives who were named in this and former wills, and identity of the amounts of the legacies devised to them, and the identity and addresses of relatives and other persons named in the challenged will, were matters which could hardly have occurred by accident, but only from the intent and at the direction of the donor.

It appears in the record that in the will of October 8th, 1921, Mrs. Graham, after making bequests to certain individuals and to churches, bequeathed the residue of her estate to her executor and trustees named in the will for the erection and maintenance of an old peoples home to be known as the "Edmund Gaines Graham Home" as a memorial to her deceased husband.

In the will of June 19th, 1934, as she had in the will of 1921, after several special bequests, she made a residuary bequest of the balance of her estate to her executor and trustee named in the will to be used "for the erection and maintenance of an old peoples home to be known as the Edmund Gaines Graham Home, said home to be used for whites only, and not to be used as an inmate by any person of African blood or descent." She provided for the site of the Home and directed how it should be built and for the appointment of trustees to have charge of and control of such Home. She provided a fund to be set up the interest from which was to be used to pay insurance on the Home and the up-keep of it.

The material difference between those two former wills and the will here under consideration is that in the latter several bequests were made to cousins and to other persons not of kin to her, not mentioned in former wills, though she did make identical bequests to many of those named in her former wills, and in lieu of providing for an old peoples home, she said:

"The residue of my estate, both real and personal, I give to my friend of long standing, Mrs. Beatrice Newport."

Then she said:

"I have discussed with her many times the things I want her to do and I have every confidence she will carry out my wishes."

In those former wills she had made no provisions for the maintenance of the inmates who might be taken into the Home which she directed to be erected, but, on the contrary, had directed that none of her estate should be so applied. Nor had she made any provision for the furnishing of the Home. The provision in regard to establishing the Home as contained in both former wills was fantastic and impractical.

Certainly, a devise to one who had ministered to her needs and had shown a real interest in her welfare while she was in a helpless and suffering condition was more natural than the provision for the old peoples Home which was no more than half-way provided for.

As we read the record, the evidence shows beyond question that Mrs. Graham and Mrs. Newport had visited each other on numerous occasions beginning certainly not later than 1912 and that Mrs. Graham's visits to Mrs. Newport had been for a week or more at a time. When one woman visits another for a week at a time, we take it as conclusive evidence of their existing friendship. So theirs was a friendship of more than twenty-five years.

The record shows that Mrs. Graham signed checks on her bank account and directed her business affairs shortly before and after such that recognized experts declared it to be their opinion that the will was signed by the same person who signed the checks, while there are some as noted experts who testified to the contrary.

Certainly, the signature on the will is not a tracing of either of the signatures introduced in evidence.

We think from the entire record that it is established that Mrs. Graham did execute the will. We conclude that on the entire record the judge of the Circuit Court was justified in reversing the judgment of the Circuit Judge sitting as a Judge of Probate on the theory and ground that as Judge of Probate the Circuit Judge misinterpreted the legal effect of the evidence as a whole. In re Donnelly's Estate, 137 Fla. 459,188 So. 108; Wilkins Estate, 128 Fla. 273, 174 So. 412, Alkire's Estate, 142 Fla. 862, 198 So. 475; Thompson's Estate, 145 Fla. 42,199 So. 352.

Therefore, the judgment of the Circuit Court should be affirmed.