GEORGIA PARKER, APPELLANT,
v.
A. D. PENNY, NAMED EXECUTOR OF THE LAST WILL AND TESTAMENT OF JOSEPH W. COMBS, DECEASED, APPELLEE
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Georgia Parker challenged the probate of her father Joseph W. Combs's will, alleging testamentary incapacity, undue influence, and that the estate's primary asset was protected homestead property. The Florida Supreme Court affirmed the lower courts' rejection of all challenges, holding that the testator had capacity, was not unduly influenced, and was not the head of a family entitled to homestead protections.
The Court affirmed the lower courts' decisions, holding that the testator possessed testamentary capacity, was not subject to undue influence, and was not the head of a family at the time of execution or death, therefore the homestead property claim failed and the will was valid.
“The will brought in question disposes of a valuable estate dividing it among the children and relatives of the testator and the relatives of his late deceased wife. Under the facts of this case the will was not an unusual or unnatural disposition of the testator's property.”
Establishes that the will's distribution was reasonable and natural, supporting the finding against undue influence.
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Join FLexlaw to unlock all legal intelligenceJoseph W. Combs died testate on March 9, 1926, six days after executing his will on March 3, 1926. The will was probated on April 17, 1926, and dispos…
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Terrell, J.
Joseph W. Combs, late of Miami, Dade County, Florida, died testate March 9th, 1926. Six days prior to his death, on March 3rd, 1926, he executed his last will which was probated April 17th, 1926. April 19th, 1926, appellant, Georgia Parker, a daughter and heir at law of the testator, filed in the Probate Court of Dade County her petition seeking to revoke the probate of the said will on the ground of testamentary incapacity, undue influence and on the further ground that the lands on which the testator lived and made his home (and which constituted the bulle of his estate) was his homestead and was not subject to disposition by will under the laws of this State.
On the 12th day of May, 1926, the executor named in the will appellee here filed his answer to appellant’s petition seeking to revoke the probate of the said will. The said answer denied all the material allegations of said petition. Much testimony was taken on the issues made and on final hearing August 13, 1926, the county judge entered his order denying the petition of Georgia Parker to revoke the probate of the said will and also holding that the said will expressed the true desire of the testator with reference to the disposition of his property, that the testator was possessed of testamentary capacity at the time he executed the said will, that the said Joseph W. Combs was not the head of a family at the time of his death and that his home or place of residence was not his homestead. From the order of the county judge appeal was taken to the circuit court, and on final hearing, April 13, 1927, the chancellor entered his final decree affirming the order of the county judge. From the final decree of the chancellor appeal was taken to this Court.
The will brought in question disposes of a valuable estate dividing it among the children and relatives of the testator and the relatives of his late deceased wife. Under the facts of this case the will was not an unusual or unnatural dis position of the testator’s property. The finding of the probate judge was on conflicting testimony but there is no showing whatever that he misapprehended the legal effect of the evidence as an entirety and there was ample evidence to support his finding.
The question of testamentary incapacity, the question of undue influence and the evidence to support them were fully covered by this Court in the recent case of Hamilton et al. v. Morgan, 93 Fla. 311, 112 So. Rep. 80, and we think on these questions this case may safely be affirmed on authority of that case. See also Mason et al. v. State Bank of Orlando and Trust Company et al., 94 Fla. 132, 113 So. Rep. 664.
The record further shows conclusively that the testator was not at the time of the execution of his will nor at his death the head of a family as contemplated under our Constitution. See Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. 182.
Affirmed.
Whitfield, P. J., and Buford, J., concur. Strum, J., concurs in the opinion and judgment.
Ellis, C. J., and Brown, J.., dissent.
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In re Est. of Coketine Bray Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971)…fect unless it clearly appears that the free use and exercise of the testator’s sound mind in executing his will was in fact prevented by deception, undue influence, or other means. Hamilton v. Morgan, 93 Fla.311, 112 So. 80 (1927); Parker v. Penny, 95 Fla. 922, 117 So. 703 (1928); Newman v. Smith, 77 Fla. 633, 82 So. 236 (1918), reversed on rehearing on other grounds; Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1932); Marston v. Churchill, 137 Fla. 154, 187 So. 762 (1939). It has been said that mere…
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In re Est. of Nicholas P. Alkire v. Smith, 144 Fla. 606 (Fla. 1940)…n .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 So. 855; Parker v. Penny, 95 Fla. 922, 117 So. 703.” Nothing written in' this case conflicts with Section 55 of Chapter 16,103, Laws of Florida, Acts of 1933 (The Probate Act), or with Section 4642 C. G. L. The former opinion of the Court is adhered to. Terrell, C. J., and Chapman, J…
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In re Est. of Frank Thompson v. Thompson, 145 Fla. 42 (Fla. 1940)…vidence 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.”—and cited in support of this holding Hopper v. Stokes, 107 Fla. 607, 145 Sou. 855; Parker v. Penney, 95 Fla. 922, 117 Sou. 703. In the Hooper case we held: “Probate court’s fact findings on conflicting evidence-in will contest should ordinarily not be disturbed'on appeal to circuit court where there is ample evidence to sustain findings. When probate judge in…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Neva Hamilton v. A. J. Morgan Under the Instrument Offered for Probate as the Last Will and Testament of Bartlett Hamilton, 93 Fla. 311 (Fla. 1927)
- Herrin v. Brown, 44 Fla. 782 (Fla. 1902)
- Dorothea Temple Mason v. State Bank of Orlando & Tr. Co., 94 Fla. 132 (Fla. 1927)