Butler v. Williams

Full title: GEORGE L. BUTLER, APPELLANT, v. JAMES J. WILLIAMS, ETC., APPELLEE

Court: District Court of Appeal of Florida, Second District

Date published: Jul 11, 1962

141 So. 2d 4 (Fla. Dist. Ct. App. 1962)

Opinion

No. 2365.

June 13, 1962. Rehearing Denied July 11, 1962.

Appeal from the County Judge's Court, Osceola County, O.P. Johnson, J.

Thacker Thacker, Kissimmee, for appellant.

Ellis F. Davis, Kissimmee, for appellee.

MORROW, R.O., Associate Judge.

This is an appeal from an Order of the County Judge, which dismissed Appellant's amended petition to revoke the probate of a will and codicil on the grounds that the testatrix lacked testamentary capacity, and was under undue influence at the time she executed said will and codicil. The Appellant is a grandson, and one of three heirs at law of the testatrix. The Appellant and one other heir are provided for in the will and codicil, and the third heir is referred to therein. The Appellee is named executor of the will, and a beneficiary thereunder, along with his wife and child. The testatrix executed her will on May 27, 1954, and her codicil in September, 1955, and died on November 6, 1956, at the age of 85.

The questions presented are whether or not the testatrix had testamentary capacity at the time of the execution of her will and codicil, and whether the appellee exercised undue and improper influence on the testatrix at the times that she executed her will and codicil. The record discloses that the memory of the testatrix was at times not too alert. However, there is no testimony to the effect that the testatrix did not know and fully comprehend what she was doing at the time of the execution of the will and codicil. In themselves old age, physical frailty, or failing memory, are not inconsistent with testamentary capacity, if it appears that the testatrix understood her testamentary acts and the effects thereof.

As to undue or improper influence, it does not appear that the trial judge misinterpreted the law or misjudged the evidence in this regard. He had all of the witnesses before him, and there appears substantial evidence to support the trial judge's conclusions.

Finding no error in the Order of the County Judge dismissing the appellee's amended petition to revoke the will and codicil, said Order is affirmed.

Affirmed.

SHANNON, C.J., and WHITE, J., concur.