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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. 424.

Robert W. Davis, of Gainesville, Guss Wilder, of Clearwater, and Gibbons & Gibbons, of Tampa, for appellees.

[3] The will being contested is dated July 18, 1916. The will which petitioners allege affected a revocation of the former will was

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 § 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 N. C. 245, 63 S. E. 1025; Stetson v. Stetson, This appeal is from that order. 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 of fact. The court found upon the proof adduced that petitioners had failed to sustain their allgations of testamentary incapacity of the testatrix and undue influence exerted upon her to induce the making of

the will.

It is not considered that a summary of the evidence in this opinion would be productive of benefit. A number of witnesses were examined who had known the testatrix for a number of years and had had opportunities to observe her demeanor. The personal relations between some of the wit

In re Willitt's Estate (N. J. Prerog.) 46 A. 519; Lane v. Hill, 68 N. H. 275, 44 A. 393, 73 Am. St. Rep. 591. Having been lost or

destroyed, the execution and contents of this will are proved by parol. Assuming it to have been valid and to have contained a general clause revoking former wills, but to have been destroyed during the life of tion have upon the will of July 18, 1916 in testatrix, what effect, if any, did its execuexistence at the time of the death of testatrix? It is conceded that this is the decisive question in the case. On behalf of petitioners it is contended that the execution of the latter will operated to revoke and annul the former one. But on the other hand it is contended that the latter will having been lost or destroyed prior to the death of the testatrix, it or the revocatory clause thereof, could have no effect whatever upon the former will.

nesses and the testatrix were intimate. Oth-
ers of the witnesses were familiar with busi-
ness transactions in which testatrix was
interested and were familiar with her capac-
ity to conduct the business in which she was
engaged. Some of the witnesses were physi-
cians. Others were not. Some of the wit-
nesses expressed the conclusion that testa-wills are as follows:
trix was mentally incompetent. Others
reached the opposite conclusion.

Statutes on the subject of revocation of

"No such devise or disposition of lands, tenements or hereditaments, or any part or clause thereof, shall be revokable by any other will or codicil, unless the same be in writing and made as aforesaid, but every such last will and tes

[1] Presumably testatrix was sane at the time the will was made. The burden of rebutting this presumption and establishing incompetency to make a valid will or provtament, devise, or disposition may be revoked ing undue influence so operating upon her as to destroy the free agency of testatrix, rested upon petitioners.

[2] There is evidence to support the court's finding, and it does not clearly appear to be erroneous. It will therefore not be disturbed. Travis v. Travis, 81 Fla 309, 87 So. 762; Douglas v. Ogle, 80 Fla. 42, 85 So. 243; Hill v. Beacham, 79 Fla. 430, 85 So. 147; Whidden v. Rogers, 78 Fla. 93, 82 So. 611; Boyd v. Gosser, 78 Fla. 64, 82 So. 758,

by any other writing signed by the testator, declaring the same to be revoked, or operating as a revocation thereof by law, or by burning, canceling, tearing, or obliterating the same by the testator or by his direction and consent, or by the act and operation of law." Section 3596, Rev. Gen. Stat.

"No will or writing concerning any personal property shall be revoked nor shall any clause, devise, or bequest therein be altered and changed by any words, or will by words of mouth only, unless the same be in the life of the tes

(102 So.)

ing thereof, read unto the testator and allowed 1 by him, and unless such writing, reading, and allowance be proved to have been done by three disinterested and credible witnesses." Section 3598, Rev. Gen. Stat.

[4] Generally wills are ambulatory until the death of the testator (Colcord v. Conroy, 40 Fla. 97, 23 So. 561) and take effect as if executed immediately before his death, unless a contrary intent appears. McKinley v. Martin, 226 Pa. 550, 75 A. 734, 134 Am. St. Rep. 1076; Rudolph v. Rudolph, 207 Ill. 266, 69 N. E. 834, 99 Am. St. Rep. 211; Heaston v. Krieg, 167 Ind. 101, 77 N. E. 805, 119 Am. St. Rep. 475. By statute in this state every general or residuary devise or bequest in a will is construed to apply to property owned by the testator at the time of his death, unless restricted in the will to that owned by him at the time of its execution. Section 3594, Rev. Gen. Stat.

[5, 6] In Stetson v. Stetson, supra, the question presented was identical in principle to the question presented by this case. Applicable principles of the common law are in force in Illinois as they are in Florida, and pertinent statutes of the two states are strikingly similar. The court said:

"In the case at bar, the will, which is said to have been executed by Jesse Stetson between September 1, 1898, and his death on April 27. 1899, is shown by the testimony of the appellants to have been taken possession of by him as soon as it was executed, and to have been carried away from the office of the attorney, who is said to have drawn it, nor could it be found among his papers or elsewhere after his death. It is to be presumed, therefore, that Jesse Stetson destroyed this will animo revocandi. If he destroyed it with the intention of canceling or revoking it, it was canceled or revoked as an entirety; so long as Jesse Stetson was alive, this second will was merely ambulatory and had no operation, and could have no operation until his death. While it was thus ambulatory, and before his death the presumption is that he destroyed it, and if he destroyed it, the clause contained in it, which revoked all former wills, was canceled and revoked, as well as the balance of the will. It necessarily results that the former will of December 3, 1897, was revived when the subsequent will, containing the revoking clause, was canceled or destroyed."

In Randall v. Beatty, 31 N. J. Eq. 643, the court considered a similar question. It was said:

"The rule on the subject of the revival of a prior will by the revocation of a later one containing words of revocation, was, up to 1838 [when by the enactment of a statute (I Vict. c. 26) the question was put at rest], different in the courts of common law and the ecclesiastical courts in England, the former holding that the revocation of the later will, of itself, worked a revival [Jarm. on Wills, 122, 123], while the latter held that, whether there was a revival or not, was a question of intention. * The will of 1870 is produced uncanceled. It is admitted that there is no revocatory will or writing extant, but it is alleged that all such instruments subsequently made by the testatrix, have been canceled. tended or followed by the cancellation of the The execution of the will of 1873 was not atwill of 1870. Notwithstanding the revocatory clause in the will of 1873, the will of 1870 was retained by the testatrix uncanceled, up to the day of her death. The fact that she so kept the will is the most cogent evidence of her intention that it should be revived by the The cancellation of the will of 1873. true rule on the subject is that where one will is revoked by another, the revocation is tes

tamentary, and the revocation of the latter will revives the former." See Cheever v North, 106 Mich. 390, 37 L. R. A. 561, and note with

cases.

The rule at common law upon the question of the effect upon an earlier will of the destruction of a second one containing a revocatory provision, is not free from doubt. Schouler on Wills (5th Ed.) § 413. The holdings in the various jurisdictions are said to be in irreconcilable conflict. 28 R. C. LA 195; Blackett v. Ziegler, 153 Iowa, 344, 133 N. W. 901 37 L. R A. (N. S.) 291, Ann. Cas. 1913E, 115. This is due in a measure to varying statutory provisions on the subject.

The will, which petitioners allege operated as a revocation of the will of testatrix which was probated, was last seen in the possession of testatrix. There is no evidence in the record to rebut the presumption that it was destroyed by testatrix with the intention of revoking it. There was no error in the order and judgment confirming the probate of the will.

The order and judgment appealed from are affirmed.

WHITFIELD, P. J., and TERRELL, J.,

concur.

TAYLOR, C. J., and ELLIS and BROWNE, JJ., concur in the opinion.

WATKINS et al. v. EMMERSON et al.

(Supreme Court of Florida, Division B. June 18, 1924. Rehearing Denied Oct. 29, 1924.)

(Syllabus by the Court.)

1. Pleading 93(1)-That plea contradictory to any other plea filed by same party no objection.

It is no objection to any plea that it is contradictory to any other plea filed by the same party in the cause.

2. Pleading 93(3)-Pleas of not guilty and denial of possession may be filed in same ejectment action.

In ejectment, a plea of not guilty and a plea denying possession of the premises are not inconsistent, and may be filed in the same action.

Hampton & Hampton, of Gainesville, for plaintiffs in error

W. S. Broome, of Gainesville, for defendants in error.

WEST, J. This action is ejectment, originally brought by Lucius M. Emmerson against John J. Barr. Between the dates of its commencement and the trial both the original plaintiff and defendant died. The pleadings were amended from time to time to conform to the change of parties. And, because of a conveyance of the premises referred to infra from the original plaintifi to the original defendant while the action was pending, plaintiffs, by their amended declaration, claim title to an undivided one-half interest only in the property, and not the entire estate, as claimed by the original plaintiff, Lucius M.

3. Pleading 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 averred:

4. Champerty and maintenance

7(1)-Deed

by one to land in adverse possession of another void as against adverse claimant.

A deed by one to land which is in the adverse possession of another is void as against such adverse claimant.

5. Ejectment 41-Ejectment will not lie in name of grantee when land in adverse possession of one not party to deed but only in name of grantor.

Where a conveyance is made of lands which at the time are in the adverse possession of one not a party to the deed, ejectment will not lie in the name of the grantee to such deed, but only in the name of the grantor.

6. Ejectment 17-Plaintiff must show In himself a present right of possession.

To be entitled to recover, a plaintiff in ejectment must show in himself a present right of possession of the premises.

7. Estoppel 98 (2)-Parties claiming under title of one estopped will likewise be estopped. Parties claiming title under one who is estopped will likewise be estopped.

"That the plaintiff ought not further to maintain his aforesaid action against him, the defendant, because he says that after the last pleading in this cause, that is to say, after the 7th day of August, A. D. 1916, and before this day, to wit, on the 2d day of November, A. D. 1916, the plaintiff, Lucius M. Emmerson, executed a deed of conveyance to the said John J. Barr of the property in this suit, a copy of

which said deed is attached to and made a part of this plea as though the same had been recited in full herein (which said deed ratifies and confirms all of the proceedings in the county judge's court wherein and whereby the said John J. Barr acquired title to the said deceased, the father of the plaintiff), and recitproperty from the estate of A. H. Emmerson, ing that the said plaintiff received the proceeds arising from the sale of the said property and the benefits thereof after he attained his majority, and conveys to the said defendant all the interest owned, held, or claimed by the plaintiff in the said property, and every part thereof."

There

The portion in brackets of this plea was 8. Ejectment 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 exWhere 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.

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by the same party in the cause. Section 2652, Rev. Gen. Stat. In ejectment a plea of not guilty and a plea denying possession of the premises are not inconsistent, and may be filed in the same action. Gill v. Graham & Hampton, 54 Fla. 259, 45 So. 845. Nor does the filing of a plea puis darrein contin.

uance waive other pleas filed. Adm'rs v Union Bank, 1 Fla 110.

Prior to the 8th day of January 1914, the original plaintiff, Lucius M. Emmerson, was the owner of the land sought to be recovered. He was at the time a minor On that day a deed was executed by Mrs. Susie Emmerson, his mother, as his guardian, purporting to convey the premises to John J. Barr, the original defendant, who thereupon entered into possession under said deed. Because of irregularities in the proceedings the sale by the guardian was ineffectual to convey the legal title to the grantee named and divest the owner of title to the property

(102 So.) Parkhill'sal to convey such title as would support an action of ejectment by them. Obviously the deed from Lucius M. Emmerson, original plaintiff to John J Barr, original defendant, dated November 2, 1916, operates to convey such interest and title as the grantor had in the property, and would estop him from further prosecution of the action. So that, Lucius M. Emmerson being estopped and precluded from further right to maintain the action, and Thomas W. Fielding and Evans Haile having no title sufficient to support the action against the defendant, the action fails because of the absence of a party plaintiff authorized to prosecute it. One claiming title under a party who himself is estopped to deny the title of another is likewise estopped. Coogler v. Rogers, supra; Key West Wharf & Coal Co. v Porter, 63 Fla. 448, 58 So. 599, Ann. Cas. 1914A, 173. And it is well established generally that heirs are bound by an estoppel against their ancestor. Huddleston v. Graham, 73 Fla. 350, 74 So. 414, 21 O. J. 1108.

[4, 5] Proceeding on the theory that this deed was a nullity, Lucius M. Emmerson, having then attained his majority, on the 10th day of June, 1916, executed to Thomas W. Fielding and Evans Haile, attorneys at law, a deed of conveyance for an undivided one-half interest in the property. This was in payment of a fee for services to be rendered by the attorneys, grantees, in an action on behalf of the grantor to recover possession from John J. Barr. The action was instituted on the 22th day of June, 1916. It is upon this deed that plaintiffs now rely for recovery. But, as the defendant was in possession claiming adversely at the time of its execution, this deed as to defendants is void. Coogler v Rogers, 25 Fla. 853, 7 So. 391; Nelson v Brush, 22 Fla. 374; Doe v. Roe, 13 Fla. 602. The grantor having died the action now is in the name of the heirs of the grantor for the use of the grantees.

Discussion of the several assignments in detail is not required.

From what has been said it follows that the judgment must be reversed. Reversed.

WHITFIELD, P. J., and TERRELL, J.,

concur.

ELLIS and BROWNE, JJ., concur in the opinion.

TAYLOR, C. J., disqualified.

RODMAN LUMBER CO., Plaintiff in Error, v.
Lawrence FARMER, Defendant

in Error.

(Supreme Court of Florida, Division B. Aug. 2, 1924. Rehearing Denied Dec. 16, 1924.) Error to Circuit Court, Putnam County; A. V. Long, Judge.

Marks, Marks & Holt, of Jacksonville, for plaintiff in error.

[6] The deed to John J. Barr described in defendant's plea puis darrein continuance was executed by Lucius M. Emmerson on the 2d day of November, 1916. This deed recítes the execution of the deed for the premises by Susie E. Emmerson, guardian of Lucius M. Emmerson, on the 8th day of January, 1914, to John J. Barr; that the said Lucius M. Emmerson has since attained his majority; that a part of the money received in consideration for the deed by said guardian was expended in the education and maintenance of said grantor; and that since attaining his majority he has received the balance of the agreed consideration, and therefore desires to ratify and confirm the said sale. Wherefore, in consideration of a stated sum of money received, Lucius M. Emmerson, the said grantor, ratifies and confirms the sale and conveyance made by his said guardian, and sells and conveys to the said John J. Barr, his heirs and assigns forever, the said prop-ises, it seems to the court that there is no er

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Milam & Milam, of Jacksonville, for defendant in error.

PER CURIAM. fore been submitted to the court upon the This cause having heretotranscript of the record of the judgment aforesaid 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

ror in the said judgment. It is therefore cousidered, ordered, and adjudged by the court that the said judgment of the circuit court be and the same is hereby affirmed.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

tive parties, and the record having been seen Remmie 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, order

14, 1924.)

ed, and adjudged by the court that the said decree of the circuit court be and the same is

Appeal from Circuit Court, Volusia County; hereby affirmed. James W. Perkins, Judge.

Hilburn & Merryday, of Palatka, for appellant.

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

PER CURIAM. This cause having heretofore been submitted to the court upon the transcript of the record of the decree herein, and 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 premises, it seems to the court that there is no error in the said decree. It is therefore considered, ordered, and adjudged by the court that the said decree of the circuit court be and the same is hereby affirmed.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

WHITFIELD, P. J., and WEST and TERRELL, JJ., concur.

Nelson THOMPSON, Plaintiff in Error, v. Har-
ry BEDELL, Defendant in Error.
(Supreme Court of Florida, Division B. Oct.
18, 1924. Rehearing Denied Dec. 16, 1924.)
Error to Circuit Court, Glades County;
George W. Whitehurst, Judge.
Leitner & Leitner, of Arcadia, for plaintiff in

error.

Kurtz & Spain, of Moore Haven, and Guy A. Andrews, of Sebring, for defendant in error.

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 par

Thomas W. FIELDING, Appellant, v. W. Del- ties, and the record having been seen and in

ma BRYAN et al., Appellees.

(Supreme Court of Florida, Division B.

18, 1924.)

spected, and the court being now advised of its judgment to be given in the premises, it seems Oct. to the court that there is no error in the said 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.

Evans Haile, of Gainesville, for appellant.

ment of the circuit court be and the same is hereby affirmed. Ridgewood Hotel Co. v. Johnston, 77 Fla. 149, 81 So. 111.

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 order herein, and 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. REises, it seems to the court that there is no error in the said order. It is therefore considered, ordered, and adjudged by the court that

the said order of the circuit court be and the same is hereby affirmed.

OLDS FARMS CO., Appellee.

(Supreme Court of Florida, Division B. Oct.

28, 1924.)

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.

Olive C. EDEN, Appellant, v. Nellie CARLIN, fore been submitted to the court upon the

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PER CURIAM. This cause having heretotranscript of the record of the order herein, and 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 premises, it seems to the court that there is no

error in the said order. It is therefore considered, ordered, and adjudged by the court that the said order of the circuit court be and the same is hereby affirmed. Taylor v. Rawlins, 86 Fla. 279, 97 So. 714.

WHITFIELD, P. J., and WEST and TER

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