IN RE ESTATE OF IOLIA R. LOHBILLER, DECEASED. PATRICIA HORTON LOHBILLER, AS CURATOR FOR THE ESTATE OF HARRY J. LOHBILLER, INCOMPETENT, APPELLANT,
v.
MIAMI BEACH FIRST NATIONAL BANK, HUMANE SOCIETY OF GREATER MIAMI, DADE COUNTY CHAPTER OF RED CROSS, ST. FRANCIS HOSPITAL, INC., AND MASSACHUSETTS INSTITUTE OF TECHNOLOGY, APPELLEES
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A curator for an incompetent estate challenged a waiver of spousal rights to charitable bequests executed by Harry J. Lohbiller, arguing Lohbiller lacked capacity to understand the waiver's legal effect. The Florida appellate court affirmed the lower court's finding that Lohbiller was competent to execute the waiver based on substantial evidence.
The court affirmed the county judge's finding that Lohbiller possessed adequate capacity to execute the waiver. Substantial competent evidence, including testimony from medical experts and lay witnesses regarding his physical and mental condition at the time, supported the lower court's conclusion.
“It was the problem and the duty of the trial judge to reconcile the conflicts and evaluate the testimony, to judge the credibility of the witnesses and determine the reasonableness and weight of the evidence presented. It is our duty, on review, to affirm his decision, unless it is made to appear that there was an absence of substantial competent evidence to support the county judge's findings or that he misapprehended the legal effect of the evidence as a whole.”
Establishes the standard of appellate review for factual findings regarding capacity and credibility determinations.
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Join FLexlaw to unlock all legal intelligenceIolia R. Lohbiller entered into a separation agreement with her husband Harry in February 1955, executed her will in March 1955 containing substantial…
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This is an appeal by a curator for the estate of one Harry J. Lohbiller, an incompetent, from an order of the county judges’ court in Dade County, pertaining to *249a probate matter, overruling plaintiff’s filed objection to certain charitable bequests, and ordering distribution.
The principal actions and occurrences which gave rise to this controversy took place in 1955. The Lohbillers entered into a separation agreement dated February 8. The wife, Iolia, sued Lohbiller for separate maintenance on February 10. Her will was made on March 3. She died June 6, and her will was admitted to probate June 9.
On June 28 Lohbiller executed the controverted waiver, and it was filed July 1. Lohbiller remarried August 3, 1955, and he was adjudged incompetent on May 1, 1956.
Iolia’s will made certain charitable bequests in substantial amounts. Under the probate law as it stood at the time (§ 731.19, Fla.Stat.1955, F.S.A.), her will, which was made less than six months before death, was voidable by the surviving spouse, as to such charitable bequests. Taylor v. Payne, 154 Fla. 359, 17 So.2d 615, 154 A.L.R. 677.
Distribution under the will, taking into account the waiver executed by Lohbiller, was challenged by the curator upon contending that the waiver should be set aside on the ground that Lohbiller was incompetent and unable to understand the legal effect of the waiver which he executed. The curator’s appeal from the order of distribution which overruled that objection turns on the question of Lohbiller’s •capacity to execute the release.
Evidence introduced for the purpose of showing Lohbiller’s competency included testimony of an attorney who had represented him personally and whom he consulted regarding the waiver. Appellant contends the court erred in receiving the lawyer’s testimony over objection that it was a privileged communication which only the client (Lohbiller) could release. In view of our disposition of this appeal, as set out hereinbelow, it is unnecessary for us to decide that question.
The county judge had before him the testimony of certain medical experts and laymen, bearing on the physical and mental condition and capacity of Lohbiller at and around the time involved. There is no need to extend this opinion by summarizing and restating the evidence. We have examined and considered the briefs and the record, and conclude that there was competent substantial evidence, aside from and in addition to that given by the attorney referred to above, to support the findings and conclusions of the county judge on that issue.
It was the problem and the duty of the trial judge to reconcile the conflicts and evaluate the testimony, to judge the credibility of the witnesses and determine the reasonableness and weight of the evidence presented. It is our duty, on review, to affirm his decision, unless it is made to appear that there was an absence of substantial competent evidence to support the county judge’s findings or that he misapprehended the legal effect of the evidence as a whole. Gair v. Lockhart, Fla.1950, 45 So.2d 193; In re Zimmerman’s Estate, Fla.1956, 84 So.2d 560; see Tyler v. Tyler, Fla.App.1959, 108 So.2d 312.
Having thus considered the case and finding no error, the order appealed from should be and hereby is affirmed.
Affirmed.
HORTON and PEARSON, JJ., concur.
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Stoller v. Jaffe, 125 So. 2d 310 (Fla. 3d DCA 1960)…g that the chancellor committed error or that the evidence demonstrates his conclusions to be erroneous. Tyler v. Tyler, Fla.App.1959, 108 So. 2d 312; Pergament v. Pergament, Fla.App. 1959, 117 So. 2d 26. See In re Lohbiller’s Estate, Fla.App. 1959, 113 So. 2d 248. Affirmed. CARROLL, CHAS., J., and ODOM, ARCPIIE M., Associate Judge, concur.…
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Weinstein v. Doreene Weinstein, 148 So. 2d 737 (Fla. 3d DCA 1963)…d to the properties held by the husband [which had been acquired through the mutual efforts of the parties], and this portion of the final decree is affirmed. See: Tyler v. Tyler, Fla.App.1959, 108 So. 2d 312; In re Lohbiller’s Estate, Fla.App.1959, 113 So. 2d 248. In ordering the parties to sell the homestead property within a period of 6 months and dividing the net proceeds equally and [in the event the parties should be unable to sell the premises within the said period] providing that either party could a…
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Marx v. Goldfinger, 187 So. 2d 380 (Fla. 3d DCA 1966)…of the plaintiff by the trial judge, whose duty it was to reconcile conflicts and evaluate testimony, to judge credibility of witnesses, and determine the reasonableness and weight of the evidence presented. In re Lohbiller’s Estate, Fla.App. 1959, 113 So. 2d 248. These findings of the trial court then come to this court clothed with the presumption that they are correct, Winchester v. Florida Electric Supply, Inc., Fla.App. 1964, 161 So. 2d 668, and should not be disturbed unless they are clearly erroneous…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Est. of Wm. F. Zimmerman v. Zimmerman, 84 So. 2d 560 (Fla. 1956)
- Dowling & Camp, Inc. v. Alford, 154 Fla. 359 (Fla. 1944)
- Lumbermen's Mut. Cas. Co. v. Lumber Mut. Cas. Ins. Co. OF NEW York, 154 Fla. 367 (Fla. 1944)
- Tyler v. Tyler, 108 So. 2d 312 (Fla. 2d DCA 1959)
- Taylor v. Mary Emma Payne as administratrix de bonis non cum testamento annexo, 154 Fla. 359 (Fla. 1944)