
    In re WIDER’S ESTATE. WIDER v. WIDER et al.
    Supreme Court of Florida, en Banc.
    Dec. 9, 1952.
    Rehearing Denied Jan. 20, 1953.
    
      H. N. Casebier and F. G. Janes, Lake-land, for appellant.
    Carver, Langston & Carver, Lakeland, for appellee.
   ROBERTS, Justice.

This is an appeal from a judgment of the Circuit Court in and for Polk County, Florida, reversing an order of the County-Judge’s Court admitting to probate the will of Will F. Wider, deceased.

The record shows that on February 20, 1948, Will F. Wider and his wife, Isobel Wider, each made and executed a will naming the other as sole 'beneficiary and providing that, in the event of the pre-de-cease of the other, the property should go to Stuart Palmer Wider, the appellant here. Stuart Wider was not the son of Mr. Wider, and was not legally adopted by him. Mrs. Wider died in June of 1948. Stuart Wider testified that, on the day following the funeral of his mother, he took the two wills into his possession, with the knowledge of Mr. Wider, and kept them until after the death of Mr. Wider on March 1, 1950. It does not appear that Mrs. Wider’s will was offered for probate. The will of Mr. Wider, which was offered for probate by Stuart Wider in October of 1950, had been mutilated in the following manner: the signature of the testator, Will F. Wider, as well as the signatures of the witnesses thereto, had been neatly cut out of the will and then reinserted and held in place by being pasted to a sheet of paper pasted on the back of the will. To the left of the pasted-in signatures was a pencilled notation, to wit: “May 48 W. F. Wider.” Stuart Wider testified that the will was in this condition when he took it from the bookcase in Mr. Wider’s living room after the funeral of his mother.

Section 731.14, Florida Statutes, F.S.A., provides that “A will may be revoked by the testator himself, or by some other person in his presence and by his direction, by burning, tearing, canceling, defacing, obliterating, or destroying the same, with the intent and for the purpose of revocation.” The sole question here is whether the testator intended to revoke his will by multilating it in the manner above noted. If, so, then the will was invalid and should not have been admitted to probate, as it was not re-published and re-executed in the manner required by Section 731.18, Florida Statutes, F.S.A.

It is the contention of the appellant that Mr. Wider did not mutilate his will intending to revoke it; that he cut the signatures out of his own will by mistake, thinking that he was mutilating the will of his deceased wife. This contention is supported only by the testimony of one Floyd Bernard, to which . we will hereinafter refer. There is also testimony that Mr. Wider intended to destroy and invalidate his will. Three eminent attorneys, one of them a judge, each testified that Mr. Wider stated prior to the death of his wife, that he had destroyed his will, and one of them testified that Mr. Wider later named other persons to whom he desired to leave his estate.

As to the testimony of Floyd Bernard, we must agree with the Circuit Judge that this testimony is not persuasive in the light of the facts. As heretofore noted, the notation “May 48 W. F. Wider” was pen-cilled on the will to the left of the pasted-in signature. This date must have been intended to show either the date of the mutilation of the will or the date when the signatures were .pasted back on the will. Since Mrs. Wider died in June of 1948, the will must have 'been mutilated prior to her death. Yet, Floyd Bernard testified that the reason Mr. Wider gave for wanting to mutilate Mrs. Wider’s will was'that “since Mrs. Wider passed away he thought there was no need of having her Will and his;” that it was not until after Mrs. Wider’s death that Mr. Wider told him he had mutilated his own will by mistake, thinking that he was 'destroying his wife’s will.

Thus, Floyd Bernard’s testimony is inconsistent with the date on the will, and it is contradicted by the testimony 'of the three attorneys, above referred to.

Nor do the physical facts support the appellant’s contention. While the original copy of the will is not before this court, it is pointed out by the Circuit Judge in-his order of reversal that Mr. Wider “could not possibly have cut out his own signature so neatly and clearly, while at the same time thinking it was his wife’s signature; the signature was plainly written; he had to look carefully at it as he cut a neat line above the signature, a line below it and the short line at the left end of the signature to separate the signature completely from the remainder of the Will.”

The Circuit Judge also found it noteworthy, and so do we, that Stuart Wider, according to his own testimony, kept Mr. Wider’s will from June 14, 1948, until after March 1, 1950, or for a period of twenty and one-half months while Mr. Wider was still living.

It is with great reluctance that a finding'of a Probate Judge is disturbed by this court on appeal, and it is the settled rule of this court 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. Watts v. Newport, 149 Fla. 181, 6 So.2d 829, and cases therein cited. Testing the evidence by this rule, we conclude, after a careful consideration of all the evidence, that the Circuit Court reviewing the case on appeal did not err in finding that “the only fair and reasonable conclusion to be reached is that the testator after executing his Will intentionally and effectively revoked the same by cutting out his signature and the signatures of witnesses, thus mutilating said Will, and that as and when offered for probate the instrument offered as such Will was invalid and void;” and that the Probate Judge, in admitting the will of Will F. Wider to probate, “did so under a misapprehension of the legal effect of the evidence as a whole.”

Accordingly, the judgment of the Circuit Court here reviewed should be and it is hereby

Affirmed.

SEBRING, C. J., and TERRELL, MATHEWS and HOBSON, JJ„ concur.

THOMAS, J., and FUTCH, Associate Justice, dissent.

FUTCH, Associate

Justice (dissenting).

Will F. Wider and his wife, Isobel Wider, each made and executed a will at approximately the same time, which was on or about the 20th day of February, 1948. The will of Will F. Wider provided that if his wife Isobel survived him, all his property should go to her, and if she did not survive him, then at his death, all his property should go to Stuart Wider. The will of Isobel contains similar provisions, naming her husband Will F. Wider as beneficiary if he should survive her, and if not then Stuart Wider should be the beneficiary.

Isobel Wider departed this life on June 11, 1948. Whether or not her will was probated makes no difference in this proceeding, though I gather from the record that her will has not been probated.

Will F. Wider departed this life on or about March 15, 1950. The disputed will of Will F. Wider was apparently presented for probate in the County Judge’s Court of Polk County, Florida, on or about October 30, 1950. The delay in offering the will for probate is neither explained nor complained of.

When the will was presented for probate, it showed that the signature of the testator, Will F. Wider, had been out out and pasted 'back in place by means of paper pasted on the back of the sheet from which the signature had been removed, and to the left of this signature was a notation in pencil, “May, 48, W. F. Wider.”

The will of Will F. Wider is contested by H. W. Carraway and Martin G. Wider, on the ground that this mutilation worked a revocation of the will.

After hearing and considering all of the testimony and proofs, the County Judge entered an Order admitting the will of Will F. Wider to probate. Appeal was perfected to the Circuit Court, where judgment was entered, reversing the County Judge, and this appeal was perfected from the Circuit Court to the Supreme Court of Florida.

Mutilation of a will under the statutes of Florida raises a presumption that the mutilation was done for the purpose of revoking the will, and that the will was thereby revoked unless the presumption of revocation is overcome by competent testimony.

Floyd Bernard, a witness called in behalf of the proponent of the will, testified that Will F. Wider told him that he had intended to cut his wife’s signature from her will, but that he had made a mistake and cut the signature from the wrong will, and had thereby cut his own signature from his own will, but had pasted it back. Bernard further testified that Will F. Wider requested him, Bernard, to be sure and remember what he, Wider, was telling him, so that he could testify to it if it became necessary.

Stuart Wider, who is the beneficiary under the will of Will F. Wider, testified that Will F. Wider delivered the will to him shortly after Mrs. Wider’s death, and that he hold him that he had cut his signature therefrom, but by mistake, he having intended to cut the signature from Mrs. Wider’s will, and that he had pasted the signature back in place. Stuart Wider further testified that the will of Will F. Wider was in that mutilated condition when he received it, and that' he presented it for probate in exactly the same condition that it was in when it came into his hands.

Testimony of Will F. Wider’s neighbors and other witnesses strongly indicated that Wider was mentally incompetent for several months prior to his death, and for some time prior to the delivery of the will to Stuart Wider.

There is ample testimony in the record, if believed, to justify the Order of the Probate Judge, admitting-the will to probate.

Mr. B. G. Langston and Mr. B. J. Lang-ston, two of the lawyers who represent the respondents or contestants, testified in an effort to establish the intent of Will F. Wider to revoke his will, as did Judge R. H. Amidon.

Mr. B. G. Langston gave his testimony in the form of an affidavit sworn to before a Notary Public, and did not submit to cross-examination. He testified that “shortly after I drew up the will, for Mr. Wider, he complained about Stuart, and tóld me he had destroyed the • will, and wanted to get me to prepare another will for him.” He further testified that he, with Judge Amidon, called on Will F. Wider, about the middle of the year 1948 in an effort to get him to pay his wife’s expenses at a nursing home, but he testified nothing about any discussion of the will at that time, or at any other time except “shortly after” the will in question had been prepared and executed. The record shows that the will was not destroyed.

Mr. B. G. Langston further testified that he and Judge Amidon went by and got Mr. and Mrs. Bernard to help them talk Will F. Wider into paying for his wife’s care in the nursing home, knowing that Mr.. and Mrs. Bernard were “his friends and that he placed confidence in them.” Mr. B. G. Langston attributes Wider’s refusal to pay for his wife’s care to plain meanness, but Mr. Langston’s description of his behavior, when coupled with the further description given by Judge Amidon, indicates to me that the mind of Will F. Wider was afflicted with something more than meanness. Mr. B. G. Langston further testified that he had' known Wider for twenty years or more, “during which time I have represented Mr. Wider.”

Judge Amidon testified that he and B. G. Langston visited Will F. Wider between May 28th and June 11th. He testifies that Wider at that time went into a fit of anger, did a lot of cursing, and told the Judge that he was “getting too big for my pants since I got to be a Judge”, and that he, - the Judge, got mad, and walked out into the yard; Judge Amidon further testified that Will F. Wider made some statement about his will at that time, and expressed dissatisfaction with Mr. Langston’s representation of him. Judge Amidon gives three versions of what Wider said about the will at the time, as follows: (1) “Well, now, as far as those wills, they are off, that is all off, I have done away with them.” (2) “Mr. Wider has stated recently that he had torn this joint mill up, since it did not suit him”. (Emphasis supplied.) (3) “Evidently that’s the expression that he used, that he had torn it up, because I know I wrote this letter shortly afterwards, and he was expressing at the time, as I recall it, dissatisfaction with Mr. Langston’s rep-prcsentation, and made that remark, he said, ‘you know, those wills you made, I have torn them up or destroyed them, that’s out! ’ ”

Mr. B. J. Langston testified that Wider had told him to have his father go to his, Wider’s home, that the wills which he had drawn had been destroyed, and he wanted a new will made, and that Wider told him at one time that he wanted everything to go to his nephew, but at another time told him that he wanted his brother in one of the Dakotas, and Mr. Carraway, to have his property.

In the last analysis, this case must be decided, not on the misinterpretation of the legal effect of the evidence as a whole, but squarely upon the credibility of the witnesses. As before stated, there is substantial competent evidence to support the findings of the Probate Judge, if the testimony of Bernard, and Stuart Wider, is believed.

The testimony of Floyd Bernard is rejected by the Circuit Judge, as I understand his findings, mainly because of the pencilled notation, “May, 48, W. F. Wider”, and Bernard testified that Wider told him that “since Mrs. Wider passed away, he thought there was no need of having her will and his.”

There is no evidence as to when the notation was placed on the will, nor for that matter, whether it was placed there by Will F. Wider or someone else; nor is there any evidence of why the notation was made. It appears to me that, considering the fact that Floyd Bernard was testifying in open court, under the pressure of gruelling questioning by a skilled trial lawyer under vigorous cross-examination, his testimony is quite credible, when compared with the prepared statement of Mr. B. G. Langston, a skilled veteran of the legal profession, apparently made in the confines of his private office, and not sworn to before the Probate Judge, but before a Notary Public. In this statement we find Mr. Langston saying that he prepared a will for the deceased Will F. Wider, “leaving his property to his wife, if he outlived her.” (Emphasis supplied.)

Of course, this statement 'by Mr. Lang-ston was evidently through the result of an unruly tongue, or the action of a careless stenographer, yet he is presumed to have read the statement 'before signing and swearing to it. He was not subjected to cross-examination, and he does not mention the renunciation of the wills by the deceased, Will F. Wider, as testified to by Judge Amidon.

The testimony of Stuart Wider is condemned because of interest. Two-thirds of the testimony accepted by the Circuit Judge is that of lawyers interested in the final results. Considering fees involved, and the reputation of the firm for winning its cases, the lawyers had, in all probability, as much interest in the case as did Stuart Wider. The testimony of neither of the two other lawyers 'Corroborates the testimony of Judge Amidon. To me it reveals a fit of temper indulged in by the deceased Will F. Wider because Mr. B. G. Langston was simply trying to get him to pay an honest debt, and he tried to divert Mr. Langston by finding fault with his work in connection with preparing the wills. I am of the opinion that the Courts should act with extreme caution in deciding the case on the evidence of any lawyer who makes himself a witness in behalf of his client’s case. I think this is particularly true where the lawyer, as in this case, knew when he accepted the case that he would be a material witness in behalf of his client. The County Judge saw and heard the witnesses testify, and doubtless he knew all of them personally, and neither this Court nor the Circuit Court, viewing only the typewritten transcript of testimony (and an unusually poor transcript at that) should attempt to pit its judgment, against that of the County Judge, who saw and heard the witnesses testify.

The elder Mr. Langston had been attorney for the deceased many years, and I am constrained to believe, as I suspect the County Judge believed, that if the elder Mr. Langston had known that the deceased wanted a new will, it would have been forth-coming, even though the deceased, in the words of Langston, Jr., did want “about Fifty dollars worth of work done for a nickel.”

I am of the opinion that the judgment of the Circuit Court should be reversed, with directions to enter proper judgment affirming the action of the Probate Judge in admitting the will to probate.  