In Re: Estate of Aldrich Withington v. Acton

Per Curiam: In this case there is ample competent evidence to sustain the order of the County Judge that the will herein be probated against an attack on grounds that the testator did not have testamentary capacity and was unduly influenced; and such order was affirmed on appeal by the Circuit Court. There was no harmful error of law or procedure in either the Probate Court or the Circuit Court on appeal. The order of the Circuit Court affirming the order of probate, will be affirmed by the Supreme Court on appeal, even though there was substantial conflicting evidence and even though the burden of proof on the issue of undue influence was technically upon the proponents of the will, a confidential fiduciary relation of patient and his physician and business manager existing between the testator and a leading beneficiary of the will; where as in this case, the legal *123 effect of the evidence, as to the testator’s mental capacity to make a will and as to the circumstances attending the execution of the will, was not in favor of the contestants; and where, as here, it cannot be said with confidence that the will is not that of a competent testator. The beneficiaries of the will served the physical necessities of the testator during a long illness before and after the will was executed and the testator had only collateral surviving relatives who had not rendered him service or attention. See Marston v. Churchill, 137 Fla. 154, 187 So. 762; Estate of Starr v. Wilson, 125 Fla. 536, 170 So. 620; Ziegler v. Brown, 112 Fla. 421, 150 So. 608; Hamilton v. Morgan, 93 Fla. 311, 112 So. 80; Sweetser v. Ladd, 52 Fla. 663, 41 So. 705; Henson v. Denniston, 124 Fla. 843, 169 So. 624; Myers v. Pleasant, 118 Fla. 715, So. 204; Estate of Donnelly, 137 Fla. 459; 188 So. 108; Wartman v. Burleson, 139 Fla. 458, 190 So. 789; Rich v. Hallman, 106 Fla. 348, 143 So. 292; In- re: Starr’s Estate, 125 Fla. 536, 170 So. 620; Adams v. Saunders, et al139 Fla. 730, 191 So. 312. Affirmed. Whitfield, Terrell, Chapman and Thomas, J. J., concur. Brown, C. J., concurs specially. Buford and Adams, J. J. dissent.