Thomas v. Thompson

The appeal is from final decree dismissing bill of complaint after issues were made up and testimony taken before the chancellor.

The bill of complaint sought to reestablish an alleged lost will.

The record shows that one Ed Thompson, during his lifetime made and executed a will which he kept in his possession. Ed Thompson died and the will was not found in the place where it was known that Thompson had at one time or another kept the will, nor was it found anywhere else. A daughter of Thompson was duly appointed administratrix of the estate. Later this suit was filed and an alleged carbon copy of the will was introduced as a basis for the reestablishment of the alleged lost will.

It is the law recognized generally, and definitely recognized in this jurisdiction, that when a will had been made and executed and retained in possession of the testator, but which can not be found after the death of the testator, in the absence of evidence to the contrary, the will is presumed to have been destroyed by the testator with the intention to revoke the same. Schaefer, et al., v. Boyle, et al., 88 Fla. 170, 102 So. 7, and authorities there cited.

Therefore, it is not necessary to discuss this question further.

The presumption being that the will was destroyed by the testator with the intention of revoking the same, unless there is produced sufficient evidence to overcome this presumption, the next question, and in fact the only other question presented for our determination is whether or not the evidence taken before the chancellor as a whole was sufficient to overcome this presumption. The chancellor held in effect that the presumption had not been overcome by evidence to the contrary.

There is ample substantial evidence in the record to show that the alleged will was not amongst the effects of the testator at the time of his death. There is also ample substantial evidence to sustain the presumption above referred to. There was considerable circumstantial evidence to rebut that presumption.

The law, however, is well settled in this jurisdiction that the findings of the chancellor on testimony taken before him will be given the same effect as the verdict of a jury, but, whether the testimony be taken before the chancellor or a master, the chancellor's conclusions solely on facts will not be reversed unless it clearly appears that he has erred in such conclusions. Fuller v. Fuller, 23 Fla. 236, 2 So. 2d 426; Waterman v. Higgins, 28 Fla. 660, 10 So. 2d 97; Dean v. Dean, 36 Fla. 492, 18 So. 2d 592; West v. Daniels, 57 Fla. 548, 49 So. 2d 154; Snowden v. Cunningham, 59 Fla. 604, 51 So. 2d 543; Tatum v. Price-Williams, 59 Fla. 634, 52 So. 2d 3; Marianna v. Daniel,74 Fla. 103, 76 So. 2d 692; Farrell v. Forest Investment Co., 73 Fla. 191, 74 So. 2d 216; Seaboard Air Line Ry. v. Callan, 73 Fla. 688, 74 So. 2d 799; Charles v. Appleton, 73 Fla. 362, 74 So. 2d 414; Shad v. Smith, 74 Fla. 324, 76 So. 2d 897; Guggenheimer v. Davidson,74 Fla. 485, 77 So. 2d 266; Simpson v. First Natl. Bank, 74 Fla. 539, 77 So. 2d 204; Smith v. O'Brien, 75 Fla. 252, 78 So. 2d 13; Kirkland v. Tampa, 75 Fla. 271, 78 So. 2d 17; Mickens v. Mickens, 75 Fla. 391, 78 So. 2d 287; Brickell v. Ft. Lauderdale, 75 Fla. 622, 78 So. 2d 681; Davidson v. Collier, 75 Fla. 783, 78 So. 2d 983; Boyd v. Gosser, 78 Fla. 64, 70, 82 So. 2d 758; Whidden v. Rogers, 78 Fla. 93, 82 So. 611; Hill v. Beacham, 79 Fla. 430, 85 So. 2d 147; Douglas v. Ogle, 80 Fla. 42, 85 So. 2d 243. And Sirkin v. Schupler, 90 Fla. 68, 105 So. 2d 151; Wang v. First Natl. Bank,92 Fla. 974, 110 So. 2d 527; Coogan v. Burley, 92 Fla. 899,110 So. 529; Long v. Spahler, 92 Fla. 121, 109 So. 2d 422; Stephenson v. National Bank of Winter Haven, 92 Fla. 347, 109 So. 2d 424; Small v. Colonial Investment Co., 92 Fla. 503, 109 So. 2d 433; Wimbish v. Douglass, 92 Fla. 224, 109 So. 2d 306; Nelson v. Tropical Land Co., 93 Fla. 203, 111 So. 2d 512; Punta Gorda State Bank v. Wilder, 93 Fla. 301, 112 So. 2d 569; Lightsey v. Washington Park Properties, Inc., 93 Fla. 531,112 So. 2d 555; Baker v. Baker, 94 Fla. 1001, 114 So. 2d 661; Rundel v. Gordon, 92 Fla. 1110, 111 So. 2d 386; Johns v. Seeley, 94 Fla. 851, 114 So. 2d 452; Cramer v. Eichelberger, 96 Fla. 683,118 So. 737; Sperry v. City of Tampa, 96 Fla. 567, 118 So. 2d 816; Roland v. Mathews, 98 Fla. 695, 124 So. 2d 34; Hoffman Construction Co. v. Ward, 97 Fla. 530, 121 So. 2d 800; Shipley-Young Corp. v. Young, 97 Fla. 46, 119 So. 2d 522; Troutman v. Couture, 98 Fla. 889, 124 So. 2d 443; Gold v. City of Tampa, 100 Fla. 1134,130 So. 914; City of Ocoee v. West, 102 Fla. 277, 130 So. 2d 9; Fulton v. Clewiston, 100 Fla. 257, 129 So. 773; Stringfellow v. Adams,99 Fla. 623, 127 So. 2d 338; Jordan v. Jordan, 100 Fla. 1586,132 So. 2d 466; Meloche v. Meloche, 101 Fla. 659, 133 So. 2d 339; Rogers v. Gerow-Calnan Dann, Inc., 101 Fla. 1174, 132 So. 2d 838; Heinisch v. Mills, 100 Fla. 1600, 132 So. 2d 109."

For the reasons stated, the decree should be affirmed. It is so ordered.

Affirmed.

WHITFIELD, ELLIS, TERRELL and BUFORD, J. J., concur.

DAVIS, C. J., concurs specially.