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F. B. Coogler and F. L. Stringer, both, Lauderdale, 75 Fla. 622, 78 So. 681; Maof Brooksville, for appellants.

nasse v. Dutton Bank, 75 Fla. 327, 78 So. Robert W. Davis, of Gainesville, Guss 424. Wilder, of Clearwater, and Gibbons & Gib [3] The will being contested is dated July bons, of Tampa, for appellees.

18, 1916. The will which petitioners allege

affected a revocation of the former will was 1

WEST, J. By this proceeding petitioners, made, according to the evidence, in the fall who are appellants here, proceeding under of 1917, the exact date not being given. Not the statute (section 3611, Rev. Gen. Stat.), having been found since the death of the seek to have the probate of a will revoked. testatrix, and being in her custody, this The allegations generally of the petition are will, in the absence of other evidence, is testamentary incapacity of the testatrix, presumed to have been destroyed by testaundue influence exerted upon testatrix to trix with the intention to revoke. Schouler induce the making of the will, and revocation on Wills (5th Ed.) § 1084; Rood on Wills, of the will by a subsequent will of testatrix 8 356; Jaques v. Horton, 76 Ala. 238; Scott containing a revocatory provision, but which

V. Maddox, 113 Ga. 795, 39 S. E. 500, 84 latter will was lost or destroyed or surrep Am. St. Rep. 263; Newell v. Homer, 120 titiously suppressed and was not found or Mass. 277; Hamilton v. Crowe, 175 Mo. 634, produced after the death of the testatrix, 75 S. W. 389; In re Colbert's Estate, 31 Answer was filed and evidence taken by the Mont. 461, 78 P. 971, 80 P. 248, 107 Am. St. parties. Upon consideration on the merits Rep. 439, 3 Ann. Cas. 952; Williams v. Miles, by the circuit judge, the county judge be 68 Neb. 463, 94 N. W. 705, 96 N. W. 151, ing disqualified, there was an order and 62 L. R. A. 383, 110 Am. St. Rep. 431, 4 judgment confirming the probate of the will. Ann. Cas. 306; In re Hedgepeth's Will, 150 This appeal is from that order.

N. C. 245, 63 S. E. 1025; Stetson v. Stetson, There was a specific finding against peti- 200 Ill. 601, 66 N. E. 262, 61 L. R. A. 258; tioners by the trial court upon the questions In re Willitt's Estate (N. J. Prerog.) 46 A. of fact. The court found upon the proof 519; Lane v. Hill, 68 N. H. 275, 44 A. 393, adduced that petitioners had failed to sus

73 Am. St. Rep. 591. Having been lost or tain their allgations of testamentary in destroyed, the execution and contents of this capacity of the testatrix and undue influence will are proved by parol. Assuming it to exerted upon her to induce the making of have been valid and to have contained a the will.

general clause revoking former wills, but It is not considered that a summary of the to have been destroyed during the life of evidence in this opinion would be pro

testatrix, what effect, if any, did its execuductive of benefit. A number of witnesses tion have upon the will of July 18, 1916 in were examined who had known the testatrix existence at the time of the death of tesfor a number of years and had had oppor- tatrix? It is conceded that this is the detunities to observe her demeanor. The per- petitioners it is contended that the execu

cisive question in the case. On behalf of sonal relations between some of the wit- tion of the latter will operated to revoke and nesses and the testatrix were intimate. Oth

annul the former one. ers of the witnesses were familiar with busi- hand it is contended that the latter will

But on the other ness transactions in which testatrix was having been lost or destroyed prior to the interested and were familiar with her capac-death of the testatrix, it or the revocatory ity to conduct the business in which she was clause thereof, could have no effect whatengaged. Some of the witnesses were physi

ever upon the former will. cians. Others were not. Some of the witnesses expressed the conclusion that testa- wills are as follows:

Statutes on the subject of revocation of trix

mentally incompetent. Others reached the opposite conclusion.

“No such devise or disposition of lands, tene[1] Presumably testatrix was sane at the ments or hereditaments, or any part or clause time the will was made. The burden of re- codicil, unless the same be in writing and made

thereof, shall be revokable by any other will or butting this presumption and establishing in

as aforesaid, but every such last will and tescompetency to make a valid will or provtament, devise, or disposition may be revoked ing tindue influence so operating upon her by any other writing signed by the testator, as to destroy the free agency of testatrix, declaring the same to be revoked, or operating rested upon petitioners.

as a revocation thereof by law, or by burn[2] There is evidence to support the court's ing, canceling, tearing, or obliterating the same finding, and it does not clearly appear to by the testator or by his direction and conbe erroneous.

SecIt will therefore not be dis- sent, or by the act and operation of law.”

tion 3596, Rev. Gen. Stat. turbed. Travis v. Travis, 81 Fla 309, 87

“No will or writing concerning any personal So. 762; Douglas v. Ogle, 80 Fla. 42, 85 So. property shall be revoked nor shall any clause, 243; Hill v. Beacham, 79 Fla. 430, 85 So. devise, or bequest therein be altered and chang147; Whidden v. Rogers, 78 Fla. 93, 82 So.ed by any words, or will by words of mouth 611; Boyd v. Gosser, 78 Fla. 64, 82 So. 758, only, unless the same be in the life of the tes6 A. L. R. 500; Brickell v. Town of Ft. / tator committed to writing, and after the writ.

was

. The

(102 So.) ing thereof, read unto the testator and allowed “The rule on the subject of the revival of by him, and unless such writing, reading, and a prior will by the revocation of a later one allowance be proved to have been done by containing words of revocation, was, up to three disinterested and credible witnesses." 1838 (when by the enactment of a statute (I Section 3598, Rev. Gen. Stat.

Vict. c. 26) the question was put at rest), dif

ferent in the courts of common law and the [4) Generally wills are ambulatory until ecclesiastical courts in England, the former the death of the testator (Colcord v. Conroy, of itself, worked a revival [Jarm. on Wills,

holding that the revocation of the later will, 40 Fla. 97, 23 So. 561) and take effect as if 122, 123], while the latter held that, whether executed immediately before his death, un- there was a revival or not, was a question of less a contrary intent appears. McKinley intention. • The will of 1870 is prov. Martin, 226 Pa, 550, 75 A. 734, 134 Am. St. duced uncanceled. It is admitted that there is Rep. 1076; Rudolph v. Rudolph, 207 Ill. 266, no revocatory will or writing extant, but it 69 N. E. 834, 99 Am. St. Rep. 211; Heaston v. is alleged that all such instruments subsequentKrieg, 167 Ind. 101, 77 N. E. 805, 119 Am. St. ly made by the testatrix, have been canceled. Rep. 475. By statute in this state eyery tended or followed by the cancellation of the

The execution of the will of 1873 was not atgeneral or residuary devise or bequest in a

will of 1870. Notwithstanding the revocatory will is construed to apply to property owned clause in the will of 1873, the will of 1870 by the testator at the time of his death, un

was retained by the testatrix uncanceled, up less restricted in the will to that owned by to the day of her death. The fact that she so him at the time of its execution. Section kept the will is the most cogent evidence of 3594, Rev. Gen. Stat.

her intention that it should be revived by the [5, 6] In Stetson v. Stetson, supra, the ques. cancellation of the will of 1873. tion presented was identical in principle to true rule on the subject is that where one will the question presented by this case. Appli- is revoked by another, the revocation is tescable principles of the common law are in tamentary, and the revocation of the latter will

revives the former.” See Cheever y North, force in Illinois as they are in Florida, and 106 Mich, 390, 37 L. R. A. 561, and note with pertinent statutes of the two states are strikingly similar. The court said:

The rule at common law upon the ques"In the case at bar, the will, which is said tion of the effect upon an earlier will of the to have been executed by Jesse Stetson between September 1, 1898, and his death on April destruction of a second one containing a 27, 1899, is shown by the testimony of the ap- revocatory provision, is not free from doubt. pellants to have been taken possession of by Schouler on Wills (5th Ed.) 8 413. The holdhim as soon as it was executed, and to have ings in the various jurisdictions are said been carried away from the office of the at- to be in irreconcilable conflict. 28 R. C. LA torney, who is said to have drawn it, nor could 195; Blackett v. Ziegler, 153 Iowa, 344, 133 it be found among his papers or elsewhere after N. W. 901 37 L. R A. (N. S.) 291, Ann. his death. It is to be presumed, therefore, that cas. 1913E, 115. This is due in a measure to Jesse Stetson destroyed this will animo revocandi. If he destroyed it with the intention varying statutory provisions on the subof canceling or revoking it, it was canceled or

ject. revoked as an entirety; so long as Jesse Stet

The will, which petitioners allege operatson was alive, this second will was merely ed as a revocation of the will of testatrix ambulatory and had no operation, and could which was probated, was last seen in the have no operation until his death. While it possession of testatrix. There is no eviwas thus ambulatory, and before his death dence in the record to rebut the presumpthe presumption is that he destroyed it, and tion that it was destroyed by testatrix with if he destroyed it, the clause contained in it, the intention of revoking it. There was no which revoked all former wills, was canceled and revoked, as well as the balance of the win. error in the order and judgment confirmIt necessarily results that the former will of ing the probate of the will. December 3, 1897, was revived when the sub The order and judgment appealed from sequent will, containing the revoking clause, are affirmed. was canceled or destroyed."

WHITFIELD, P. J., and TERRELL, J., In Randall v. Beatty, 31 N. J. Eq. 643, concur. the court considered a similar question. It TAYLOR, C. J., and ELLIS and BROWNE, was said:

JJ., concur in the opinion.

cases,

Hampton & Hampton, of Gainesville, for WATKINS et al. v, EMMERSON et al. plaintiffs in error

W. S. Broome, of Gainesville, for defend(Supreme Court of Florida, Division B. June

ants in error. 18, 1924. Rehearing Denied Oct. 29, 1924.) (Syllabus by the Court.)

WEST, J. This action is ejectment, original. 1. Pleading Cw93(1)-That plea contradictory ly brought by Lucius M. Emmerson against

to any other plea filed by same party no ob- John J. Barr. Between the dates of its comjection.

mencement and the trial both the original It is no objection to any plea that it is plaintiff and defendant died. The pieadings contradictory to any other plea filed by the were amended from time to time to conform same party in the cause.

to the change of parties. And, because of a 2. Pleading Om93(3)-Pleas of not guilty and conveyance of the premises referred to infra

denial of possession may be filed in same from the original plaintiff to the original deejectment action.

fendant while the action was pending, plainIn ejectment, a plea of not guilty and a tiffs, by their amended declaration, claim plea denying possession of the premises are not title to an undivided one-half interest only inconsistent, and may be filed in the same ac- in the property, and not the entire estate, as tion.

claimed by the original plaintiff, Lucius M. 3. Pleading On 272—Plea of puis darrein con- Emmerson. The declaration is in the usual tinuance does not waive other pleas.

form. There was a plea of not guilty. By a A plea of puis darrein continuance does not plea of puis darrein continuance, filed during waive other pleas filed in the action.

the life of the original parties, it was aver

red: 4. Champerty and maintenance Om7(1)-Deed by one to land in adverse possession of an.

“That the plaintiff ought not further to mainother void as against adverse claimant.

tain his aforesaid action against him, the deA deed by one to land which is in the ad- fendant, because he says that after the last verse possession of another is void as against leading in this cause, that is to say, after such adverse claimant.

the 7th day of August, A. D. 1916, and before

this day, to wit, on the 2d day of November, 5. Ejectment 41-Ejectment will not lie in A. D. 1916, the plaintiff, Lucius M. Emmerson,

name of grantee when land in adverse pos- executed a deed of conveyance to the said John session of one not party to deed but only in J. Barr of the property in this suit, a copy of name of grantor.

which said deed is attached to and made a Where a conveyance is made of lands which part of this plea as though the same had been at the time are in the adverse possession of recited in full herein (which said deed ratifies one not a party to the deed, ejectment will not and confirms all of the proceedings in the lie in the name of the grantee to such deed, county judge's court wherein and whereby the but only in the name of the grantor.

said John J. Barr acquired title to the said 6. Ejectment om 17—Plaintiff must show in deceased, the father of the plaintiff), and recit

property from the estate of A. H. Emmerson, himself a present right of possession.

ing that the said plaintiff received the proceeds To be entitled to recover, a plaintiff in arising from the sale of the said property and ejectment must show in himself a present right the benefits thereof after he attained his maof possession of the premises.

jority, and conveys to the said defendant all the 7. Estoppel Om98(2)-Parties claiming under interest owned, held, or claimed by the plaintiff title of one estopped will likewise be estopped. in the said property, and every part thereof."

Parties claiming title under one who is estopped will likewise be estopped.

The portion in brackets of this plea was

There 8. Ejectment om 9(1)_Where nominal plaintiff upon motion of plaintiff stricken. estopped to maintain action and use plaintiff were separate pleas by defendants who were without title, judgment for plaintiff reversed. executors and defendants who were not ex

Where the nominal plaintiff in an action of ecutors, each disclaiming possession of deejectment is estopped and precluded from fur- scribed portions of the premises at the time ther maintaining the action, and the use plain- of filing the amended declaration. Verdict tiff has no title sufficient to support recovery, was for plaintiffs. To review the judgment judgment upon a verdict for plaintiff will be re-entered writ of error was taken from this versed.

court.

[1-3] It is not objectionable to any plea Error to Circuit Court, Alachua County; that it is contradictory to any other plea filed A. V. Long, Judge.

by the same party in the cause. Section Action by Jesse R. Emmerson and others 2652, Rev. Gen. Stat. In ejectment a plea of against J. D. Watkins and another, as ex not guilty and a plea denying possession of ecutors of the last will and testament of the premises are not inconsistent, and may John J. Barr, deceased, and others. Judg. be filed in the same action. Gill v. Graham ment for plaintiffs, and defendants bring er- & Hampton, 54 Fla. 259, 45 So. 845. Nor ror. Reversed.

does the filing of a plea puis darrein contin.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(102 So.) uance waive other pleas filed. Parkhill's sal to convey such title as would support an Adm'rs v Union Bank, 1 Fla 110.

action of ejectment by them. Obviously the Prior to the 8th day of January 1914, the deed from Lucius M. Emmerson, original original plaintiff, Lucius M. Emmerson, was plaintiff to John J Barr, original defendant, the owner of the land sought to be recovered.dated November 2, 1916, operates to convey He was at the time a minor On that day a such interest and title as the grantor had deed was executed by Mrs. Susie Emmerson, in the property, and would estop him from his mother, as his guardian, purporting to further prosecution of the action. So that, convey the premises to John J. Barr, the Lucius M. Emmerson being estopped and preoriginal defendant, who thereupon entered cluded from further right to maintain the into possession under said deed. Because of action, and Thomas W. Fielding and Evans irregularities in the proceedings the sale by Haile having no title sufficient to support the the guardian was ineffectual to convey the action against the defendant, the action fails legal title to the grantee named and divest because of the absence of a party plaintiff the owner of title to the property

authorized to prosecute it. One claiming [4, 5] Proceeding on the theory that this title under a party who himself is estopped deed was a nullity, Lucius M. Emmerson, to deny the title of another is likewise eshaving then attained his majority on the topped. Coogler v. Rogers, supra; Key West 10th day of June, 1916, executed to Thomas Wharf & Coal Co. v Porter, 63 Fla. 448, 58 W. Fielding and Evans Haile, attorneys at So. 599, Ann. Cas. 1914A, 173. And it is well law, a deed of conveyance for an undivided established generally that heirs are bound by one-half interest in the property. This was an estoppel against their ancestor. Huddlein payment of a fee for services to be ren- ston v. Graham, 73 Fla. 350, 74 So. 414, 21 O. dered by the attorneys, grantees, in an action J. 1108. on behalf of the grantor to recover possession Discussion of the several assignments in from John J. Barr. The action was institut- detail is not required. ed on the 22th day of June, 1916. It is upon From what has been said it follows that this deed that plaintiffs now rely for recov- the judgment must be reversed. ery. But, as the defendant was in possession Reversed. claiming adversely at the time of its execution, this deed as to defendants is void. WHITFIELD, P. J., and TERRELL, J., Coogler y Rogers, 25 Fla. 853, 7 So. 391; concur. Nelson v Brush, 22 Fla. 374; Doe v. Roe, 13 ELLIS and BROWNE, JJ., concur in the Fla. 602. The grantor having died the action opinion. now is in the name of the heirs of the grant TAYLOR, C. J., disqualified, or for the use of the grantees.

[6] The deed to John J. Barr described in defendant's plea puis darrein continuance was executed by ucius M. Emmerson on the RODMAN LUMBER CO., Plaintiff in Error, v. 2d day of November, 1916. This deed recites

Lawrence FARMER, Defendant the execution of the deed for the premises by

in Error. Susie E. Emmerson, guardian of Lucius M. (Supreme Court of Florida, Division B. Aug. 2, Emmerson, on the 8th day of January, 1914, 1924. Rehearing Denied Dec. 16, 1924.) to John J. Barr; that the said Lucius M. Emmerson has since attained his majority;

Error to Circuit Court, Putnam County; A.

V, Long, Judge. that a part of the money received in consideration for the deed by said guardian was

Marks, Marks & Holt, of Jacksonville, for expended in the education and maintenance plaintiff in error.

Milam & Milam, of Jacksonville, for defendof said grantor; and that since attaining his

ant in error. majority he has received the balance of the agreed consideration, and therefore desires

PER CURIAM. This cause having heretoto ratify and confirm the said sale. Where- fore been submitted to the court upon the fore, in consideration of a stated sum of mon- transcript of the record of the judgment aforeey received, Lucius M. Emmerson, the said said and argument of counsel for the respecgrantor, ratifies and confirms the sale and tive parties, and the record having been seen conveyance made by his said guardian, and and inspected, and the court being now adsells and conveys to the said John J. Barr, vised of its judgment to be given in the premhis heirs and assigns forever, the said prop- ises, it seems to the court that there is no ererty.

ror in the said judgment. It is therefore cou: (7,8) We have seen that the deed dated the said judgment of the circuit court be and

sidered, ordered, and adjudged by the court that June 10, 1916, from Lucius M. Emmerson to the same is hereby affirmed. Thomas W. Fielding and Evans Haile, was, as against John J. Barr, the original defend WHITFIELD, P. J., and WEST and TERant in adverse possession, void and ineffectu- RELL, JJ., concur.

error.

tive parties, and the record having been seen Remmle SWILLEY, Appellant, v. Walter R. and inspected, and the court being now advised SWILLEY, Appellee.

of its judgment to be given in the premises, it

seems to the court that there is no error in the (Supreme Court of Florida, Division B. Oct. said decree. It is therefore considered, order14, 1924.)

ed, and adjudged by the court that the said deAppeal from Circuit Court, Volusia County; hereby affirmed.

cree of the circuit court be and the same is James W. Perkins, Judge.

Hilburn & Merryday, of Palatka, for appel WHITFIELD, P. J., and WEST and TERlant.

RELL, JJ., concur.
Landis, Fish & Hull and L. C. Crofton, all of
De Land, for appellee.

PER CURIAM. This cause having hereto-
fore been submitted to the court upon the tran- Nelson THOMPSON, Plaintiff in Error, v. Har.
script of the record of the decree herein, and

ry BEDELL, Defendant in Error. briefs and argument of counsel for the respec- (Supreme Court of Florida, Division B. Oct. tive parties, and the record having been seen

18, 1924. Rehearing Denied Dec. 16, 1924.) and inspected, and the court being now advised of its judgment to be given in the premises, it Error to Circuit Court, Glades County; seems to the court that there is no error in the George W. Whitehurst, Judge. said decree. It is therefore considered, or

Leitner & Leitner, of Arcadia, for plaintiff in dered, and adjudged by the court that the said decree of the circuit court be and the same is

Kurtz & Spain, of Moore Haven, and Guy A. hereby affirmed.

Andrews, of Sebring, for defendant in error. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the judgment herein, and briefs

and argument of counsel for the respective parThomas W. FIELDING, Appellant, v. W. Del- ties, and the record having been seen and inma BRYAN et al., Appellees.

spected, and the court being now advised of its

judgment to be given in the premises, it seems (Supreme Court of Florida, Division B. Oct. to the court that there is no error in the said 18, 1924.)

judgment awarding damages for assault and

battery. It is therefore considered, ordered, Appeal from Circuit Court, Alachua County; and adjudged by the court that the said judgJ. C. B. Koonce, Judge.

ment of the circuit court be and the same is Evans Haile, of Gainesville, for appellant.

hereby affirmed. Ridgewood Hotel Co. v. John

ston, 77 Fla, 149, 81 So. 111. PER CURIAM. This cause having heretofore been submitted to the court upon the tran

WHITFIELD, P. J., and WEST and TER. script of the record of the order herein, and RELL, JJ., concur. briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the prem-C. M. CONKLIN et ux., Appellants, V. RE. ises, it seems to the court that there is no

OLDS FARMS CO., Appellee. error in the said order. It is therefore considered, ordered, and adjudged by the court that (Supreme Court of Florida, Division B. Oct. the said order of the circuit court be and the

28, 1924.) same is hereby affirmed.

Appeal from Circuit Court, Pinellas County;
WHITFIELD, P. J., and WEST and TER. M. A. McMullen, Judge.
RELL, JJ., concur.

J. C. Davant, of Clearwater, for appellants.
Bird & Jones, of Clearwater, for appellee.

PER CURIAM. This cause having heretoOlive C. EDEN, Appellant, v. Nellie CARLIN, fore been submitted to the court upon the Appellee.

transcript of the record of the order herein,

and briefs and argument of counsel for the re(Supreme Court of Florida, Division B.

spective parties, and the record having been Nov. 8, 1924.)

seen and inspected, and the court being now

advised of its judgment to be given in the premAppeal from Circuit Court, Dade County; ises, it seems to the court that there is no A. J. Rose, Judge.

error in the said order. It is therefore conGramling & Clarkson, of Miami, for appellant. sidered, ordered, and adjudged by the court Snedigar & Miller, of Miami, for appellee. that the said order of the circuit court be and

the same is hereby affirmed. Taylor v. Rawlins, PER CURIAM. This cause having hereto- 86 Fla. 279, 97 So. 714. fore been subunitted to the court upon the transcript of the record of the decree herein, and WHITFIELD, P. J., and WEST and TERbriefs and argument of counsel for the respec- RELL, JJ., concur.

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