JOHN N. WATTS, SR., et al., v. BEATRICE NEWPORT, 149 Fla. 181

TERRELL, J.: This case grows out of these facts. Letitia V. Graham moved to Tampa from Mississippi about fifty years ago. She invested the proceeds of some Mississippi lands in Tampa real estate, imposed on herself a life of rigid abstinence, and in the early 1920’s because of failing health, converted her holdings into cash and gilt edge securities. She died December 16, 1938, leaving an estate of more than three hundred and fifty thousand dollars. Mrs. Graham was about ninety-four years old at the time of her death and had no nearer relatives than cousins.

She executed a first will dated October 8, 1921, and a second dated June 19, 1934, which were not materially different in essential provisions. Each provided modest legacies for friends and relatives and devised the major portion of her estate in trust to First Savings and Trust Company of Tampa for the purpose of erecting a memorial in Hillsborough County to be known as Edmund Gaines Graham Home in honor of her deceased husband, Edmund Gaines Graham. In her real estate ventures, Mrs. Graham relied on the advice of W. H. Beckwith, one of the best realtors in this country. As an investor, she relied on A. C.

Clewis, one of the soundest bankers in the country, and for legal advice, she relied on M. G. Gibbons, one of the most highly honored members of the bar of this State. For more than forty years, Mrs. Graham counseled with these gentlemen, her fortune being the product of their advice, and her shrewdness. On the day of Mrs. Graham’s death, the appellee, Beatrice Newport, showed up with a third will which is shown to have been executed by Mrs. Graham August 20, 1937. It provides modest legacies for more than a dozen relatives and friends but devises the major portion of the estate to Mrs.

Newport, “my friend of long standing.” No one knew anything about this will prior to Mrs. Graham’s death except Mrs. Newport, C. E. Sine, and his wife, all of whom testified that it was written by Sine at Mrs. Graham’s dictation, and witnessed by Sine and his wife at her (Mrs. Graham’

s) request. Mrs. Newport promptly filed her petition to probate this will. The beneficiaries and others filed answers and protests to the petition alleging that it was the product of fraud, forgery, undue influence, and lack of testaméntary capacity. .

On the issues so made, after hearing much evidence and argument, the probate court found (1) that at the time the said will was executed, the testatrix was physically helpless, bedridden, practically blind, and incapable of dictating or executing it, (2) that at the time it was executed, the testatrix was not of sound mind and did not possess testamentary capacity, (3) that at the time said will was executed, Mrs. Newport was not a friend of long standing of Mrs. Graham, and that Mrs. Graham did not repose confidence in her, and (4) that the said will was the creature of fraud and imposition.

He accordingly denied probate of the will and made a second decree denying petitioner her costs. Appeal was taken from both decrees. They were consolidated and considered together by the Circuit Court and severally reversed. This appeal is from the latter decree. . We are confronted with a single two phase question, viz: Was the will of August 20, 1937, forged, and did Mrs. Graham have testamentary capacity on the date of its execution? The evidence affecting both phases of the question is so interlarded that we treat them together.

To answer the question, this Court will first examine the record to determine whether or not the chancellor followed the correct rule of decision. The rule of decision is that if there is substantial competent evidence to support the finding of the probate judge and he did not misinterpret the legal effect of the evidence as a whole, his decree should be affirmed. 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, 144 Fla. 606, 198 So. 475; Thompson’s Estate, 145 Fla. 42, 199 So. 352.

Some confusion has arisen as to the effect of these decisions, it being contended that some of them depart from the rule as stated, that the Alkire case is in conflict with the Donnelly case and had the effect of setting up a new rule of decision, but we find no basis for such a contention and certainly there was no intention to change the settled rule in any of these cases.

In the Alkire case, we did hold that each case was a law unto itself and that it was the duty of the chancellor to weigh the probative effect of the evidence as a whole but on mere probative value, he cannot substitute his judgment for that of the probate judge, nor can he try the case de novo.

The decree appealed from is planted squarely on the assumption that it was the duty of the chancellor to examine the evidence as a whole and give the parties the benefit of his “own judgment based upon the entire record.” In doing so, he reached the conclusion that the proponent proved the will and that when done, the burden shifted, to the contestants to show by a preponderance of the evidence that the will was forged or that Mrs. Graham was devoid of testamentary capacity when she is said to have executed it.

In giving the parties the benefit of his “own judgment based upon the entire record” the chancellor was in error. He cannot pit his judgment as to probative value of the evidence against that of the probate judge. He must find that the probate judge applied the wrong

interpretation to the evidence. This was the last order the eminent chancellor made before being elevated to this Court. The words of Chief Justice Bleckley in Broome v. Davis, 87 Ga. 586, eulogizing another great judge of that Court are apropos: “Before the translation of our brother Lumpkin to this bench, though his judicial accuracy was remarkable, he shared in the fallability which is inherent in all courts except those of last resort.

In some rare instances, he committed error, and the very last of his errors is now before us for correction.” Now let us see if the probate court misinterpreted the evidence as a whole. Mrs. Newport produced the will in question after the death of the testatrix; it abandoned an avowed purpose of Mrs. Graham for more than thirty years and devised the bulk of her estate to one that had no claim on her bounty; in the same stroke, it provided small legacies for blood relatives who did have a claim on her bounty. No one had previously heard of it but Mrs. Newport, Sine, and his wife.

Its preparation, execution, custody, and production were as mysterious as the change in purpose and the motives of those who had knowledge of it were challenged and discredited. It was in other respects irregular, as we shall presently show. The proponent of a will affected with so much irregularity is charged with proving more than its execution. She must prove that it was the free voluntary act of the testator. She must dispel the mystery that enshrouds it. Kelley v. Gottschalk, 143 Fla. 371, 196 So. 844. This is a sound rule. It facilitates the search for truth and that is the only purpose of a lawsuit.

When it is permitted to become a struggle for supremacy between the wits of counsel, truth is apt to be debauched and the administration of justice raped. The superior quality of the common law consists in its genius to take each case where it finds it, strike the boundary line between right and wrong, or truth and falsehood, and then proceed to enforce the right and restrain the wrong. When rules of procedure fail to accomplish this, the reason for them has vanished and they should be discarded. In reviewing the evidence, we will not attempt more than a general statement of what it shows.

To do more would make the opinion unnecessarily tedious. Mrs. Newport and C. E. Sine testified that Mrs. Graham dictated the will in question to Sine, that Sine wrote it and helped Mrs. Graham to execute it. It was witnessed by Sine and his wife. Sine said he had known Mrs. Graham for many years and had sold her some lumber but that his wife was not acquainted with her. There was ample evidence to the effect that Sine had not been in business for more than ten years and was at best a casual acquaintance of Mrs. Graham, that the will was copied by him from one prepared by a third party at Mrs.

Newport’s request, and that Mrs. Graham knew nothing about it. Mrs. Newport testified that she had been intimate with Mrs. Graham since 1909, had bathed her, carried her food, and made trips with her to Memphis, Tennessee, and Coldwater, Mississippi. Her evidence was corroborated by three other witnesses, but the evidence of Mrs. Newport and all her witnesses was assaulted and seriously discredited. There was ample competent evidence to show that Mrs. Newport did not know Mrs. Graham prior to 1935 and that Mrs. Graham thoroughly distrusted her and had no use for her.

The evidence on this point as a whole was in hopeless conflict; the probate judge lived in the community, knew most of the witnesses, saw them depose, knew their standing for truth and veracity and had access to other facilities for appraising the probative value of the evidence that the chancellor did not have and that we do not have. It was purely a question of veracity among witnesses in which the finding of the probate judge is final. It is not disputed that at the time the will in question was executed, Mrs.

Graham was more than ninety-two years old, that she had been in bad health for many years, and had been confined to her bed for more than two years, that her hands and back were drawn and rigid from arthritis, that she did not weigh over ninety pounds, was physically exhausted, was practically blind, that in less than seven months after the execution of the will, she was adjudged incompetent to look after her estate and a curator was appointed to take charge of it. Proceedings for such appointment were started right after the execution of the will.

In addition to these physical facts supporting mental incapacity, witness after witness testified that she did not possess mental capacity while other witnesses, some of whom were discredited and others were interested, testified that she was mentally competent. All of the beneficiaries named in the will except Mrs. Newport were so confident that it was forged that they disclaimed the legacy in their behalf. There is much evidence in the shape of letters and post cards to show that the will is clothed in language that Mrs.

Graham did not have in her vocabulary, and there is other evidence which may be reasonably taken as showing that Mrs. Graham could not possibly have executed the will in the manner stated by Sine and Mrs. Newport because of physical infirmity. The numerical weight of the evidence on this point preponderates in favor of the holding of the probate court. The evidence as a whole is infected with some strange anomalies that support the contention of the contestants. It is equally as interesting as a study in human relations as it is one in legal dialectics. Mrs.

Graham was the product of a school of economic thought that was reared to “salt down” a goodly portion of every dollar she acquired. She detested waste and was miserly to the extent of denying herself all the luxuries and many of the necessities. She was not cultured, knew nothing of belles lettres, and at least during her later years could not spell or construct a polished sentence, but in the knowledge of human beings, she was a wizard. She knew where to place a dollar to make it grow and in keenness of intuition she could teach a suspecting wife new lines.

She was endowed with a species of psychic telepathy by which she could bare one’s conscience and reveal its processes. She would not “steal the show” at a levee of collegians, but judging from her estimate of human beings, she could teach the collegian loads about them. She did not know the Venetian lace and tapestries of the social structure, but she had a wonderful knowledge of the ham and eggs of it. She refused to be intrigued by the purveyor of gold brick, fake stock, or the importunities of “get rich quick Wallingford.” The State did not have to shelter her under the paternal care of a blue sky law.

She had no brief for fakirs and sycophants; in fact, her intolerance of that cast was so caustic that I am afraid if she had feigned to spit on one in a burst of passion, it would have cremated him. It is common knowledge that when a person of balanced judgment gets ready to make a will, he calls in one in whom he reposes confidence. M. G. Gibbons had been. Mrs. Graham’s trusted counsel for more than forty years. He had prepared two wills and many codicils for her, the last codicil a few months prior to the will in question.

She counseled with him after the will in question was executed and told him that the 1934 will was the only will she had. At least four times after the execution of the present will, she verbally reaffirmed her 1934 will. We find no explanation why Mrs. Graham overlooked her retained counsel and called in Sine, whom she never called on before or afterwards, to perform an important duty. Neither do we find any explanation why Mrs. Graham departed from her purpose to establish a memorial to her deceased husband.

She persisted in that purpose for more than thirty years, provided for such a memorial in the wills of 1921 and 1934, reaffirmed her purpose in this after the execution of the will in question and so far as the record discloses, .she never at any time expressed an intention to depart from this purpose to anyone but Mrs. Newport. The will in question carries similar provisions for relatives and friends that were carried in the previous wills but abandons the main purpose and substitutes one who had no claim on her bounty.

It is a strange aberration in human behavior for one to abandon a long expressed purpose to provide a memorial to a deceased husband and give the bulk of a large fortune to one who has no claim on her bounty and in the same act give insignificant legacies to blood relations who the record shows, she felt kindly toward, corresponded with, accepted favors from, visited each year as long as she was able to travel, and there is no showing whatever that she was estranged from any of them prior to the execution of this will.

Any testator has a right to disregard children and relatives and give what they have to a stranger but it is not the normal thing to do. Natural affection runs with the blood current; the law recognizes this and directs one’s estate that way in the event of intestacy. When strangers come in to divert the current, they have the burden of explaining why the change if it is assailed. After all, the proposition before us is one of weighing the evidence.

We find ample competent evidence to support the finding of the probate court and the probative value of the evidence being the primary consideration here, his judgment is conclusive. Changing the current of one’s estate from the course repeatedly marked for it is not a trivial matter and should not be done except on conclusive proof that such was the intent of the testator. It will not be done on evidence challenged and discredited in the manner shown here.

With these considerations in mind, we have distilled the record (one of the largest that ever came to this Court) through the judicial retort and have extracted what we conceive to be the controlling elements. Except for the inherent improbabilities affecting the execution of the will, the opinion might have been much shorter. By inherent improbabilities, we mean those factors in which the provisions of the will run counter to natural affection or to a long expressed purpose.

We felt it necessary to point these out and make it clear that the burden is on the proponent to explain when they are present and challenged. The decree appealed from is reversed. Reversed. BROWN, C. J., CHAPMAN and THOMAS, JJ., concur. BUFORD, J., dissents. WHITFIELD and ADAMS, JJ., disqualified.