ALICE M. COURINGTON, A WIDOW, AND DOROTHY DONOVAN, AS EXECUTRIX OF THE ESTATE OF LEXIR COURINGTON, DECEASED, APPELLANTS,
v.
WILTON COURINGTON, APPELLEE
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Widow and executrix of a deceased partner appealed a decree upholding a bill of sale transferring the deceased's interest in a bar and tavern partnership to his brother. The court affirmed, finding the appellants failed to prove their allegations of fraud and undue influence with sufficient credibility.
The court affirmed the chancellor's decree upholding the bill of sale, finding that the appellants failed to meet their burden of proving fraud and undue influence, and that the chancellor's findings based on testimony heard before him are entitled to the same deference as a jury verdict.
“It is incumbent upon the plaintiffs to prove their allegations of fraud and undue influence, and if they fail to meet this burden, the chancellor has no choice but to uphold the instrument.”
Establishes that appellants bore the burden of proving fraud and undue influence by clear and convincing evidence.
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Join FLexlaw to unlock all legal intelligenceLexir Courington and his brother Wilton purchased and operated a bar as partners beginning in 1950. In 1953, Lexir married Alice but the marriage was …
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The plaintiffs brought this appeal from an adverse decree in an equity suit. In the action below, deceased’s widow and his executrix sought to set aside a bill of sale given by the deceased to his brother. The bill of sale concerned a bar and tavern which the brothers had previously operated in partnership.
Lexir Courington and his brother Wilton purchased the bar in 1950 and operated it as partners. In 1953 the deceased, Lexir, married Alice Courington. It appears from the record that this marriage was not tranquil and that Alice brought suit against her husband several times for support. A divorce suit was pending at his death. Furthermore, the plaintiffs have alleged that Lexir was addicted to alcohol and because of certain criminal charges in his past the beverage license for the bar was taken in Wilton’s name. Wilton actually managed the bar, devoting the major part of his time *65to the business. Lexir, it seems, only appeared occasionally on the premises.
In 1954 Lexir executed a bill of sale to his brother for his interest in the business. The appellants charged in their complaint below that the bill of sale was a fraud and that it was made without consideration to Lexir’s wife and while Lexir was under the control and domination of his brother. It appears from the record that even after the bill of sale was executed, Lexir received the same percentage of profits from the business as when it started. There are sharp conflicts in the testimony, which was taken before the chancellor. However, the plaintiffs’ evidence was weak, and the chancellor upheld the validity of the bill of sale.
It would answer no purpose here to set out a resume of the evidence introduced by both sides to this controversy. Suffice it to say that this court thinks there is more credible evidence sustaining the position of the defendants than there is on the part of the plaintiffs. It is incumbent upon the plaintiffs to prove their allegations of fraud and undue influence, and if they fail to meet this burden, the chancellor has no choice but to uphold the instrument. Welbourn v. Cohen, Fla.App.1958, 104 So.2d 380; Graessle v. Schultz, Fla.1956, 90 So.2d 37; Adams v. Saunders, 1939, 139 Fla. 730, 191 So. 312.
This court, as have all other appellate courts in this state, takes the position that the findings of a chancellor on testimony taken before him have the same effect in the appellate court as does a jury verdict. It is neither proper nor within the power of this court to substitute our judgment for that of the chancellor below where the record does not clearly disclose any error in his findings or that his discretion has been abused.
Affirmed.
ALLEN, C. J., and KANNER, J., concur.
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Cherney v. Cherney, 146 So. 2d 914 (Fla. 3d DCA 1962)…eal any abuse of discretion, such findings should be sustained. See: Northern Investment Corporation v. Coppack, 134 Fla. 168, 183 So. 635; Florida Telephone Corporation v. State, Fla.App.1959, 111 So. 2d 677; Courington v. Courington, Fla.App.1960, 120 So. 2d 64. Therefore, we affirm the award of support as made by the chancellor in his final decree. This, of course, is without [*915] prejudice to the appellant to petition the court, pursuant to its inherent jurisdiction over the affairs of minor children…
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Parsley Bros. Constr. Co., Inc. v. Humphrey, 136 So. 2d 257 (Fla. 2d DCA 1962)…th apparent authority as agent of the owners. In order for this court to disturb his finding we must determine that the evidence does not warrant such a holding. Lynch v. Coppola, Fla.App.1961, 129 So. 2d 183; Courington v. Courington, Fla.App.1960, 120 So. 2d 64; Brooks v. Adams, Fla.App.1959, 115 So. 2d 578. Included in the evidence received and weighed by the chancellor were a contract, cancelled checks, and the testimony of one Charles Sullivan. Sullivan testified that he had entered into a transaction i…
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Paul Gottlieb & Co., Inc. v. Alps S. Corp., 985 So. 2d 1 (Fla. 2d DCA 2007)…lusion of a contractual term or provision pursuant to section 672.207(2), as constituting a material alteration, has the burden of proof. In doing so, we align this court with the great majority of this nation’s courts. Cf. Courington v. Courington, 120 So. 2d 64 (Fla. 2d DCA 1960) (holding that a party seeking to set aside a bill of sale on grounds of fraud and undue influence has the burden of proof). [*7] C. Surprise or Hardship Having determined which party appropriately bears the burden of proof, we ne…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Adams v. Saunders, 139 Fla. 730 (Fla. 1939)
- Welbourn v. Cohen, 104 So. 2d 380 (Fla. 2d DCA 1958)
- Graessle v. Schultz, 90 So. 2d 37 (Fla. 1956)