Moneyham v. Hamilton - 124 Fla. 430, 168 So. 522 (1936)

Rule:

The mere intention to revoke a will, unaccompanied by any act of testator to execute that intention, will not be sufficient to revoke the will, even though the execution of the intention was frustrated by the fraud and improper conduct of other persons.

Facts:

Appellant contestants C. E. Moneyham et al., alleged that the testator, during his last illness and when he was unable to leave his bed, asked the appellee beneficiary Lydia Hamilton to get his will so that he could destroy it, but appellee pretended that she could not find it. Appellants claimed that appellee found the will and kept it until the testator died, thereafter, appellee filed it for probate. Appellants further alleged that said will was admitted to probate and that the estate was being administered under the terms of the will. The circuit court, in a final decree, dismissed appellant’s amended bill of complaint to have appellee decreed to be trustee of the estate purporting to be bequeathed to her and to decree that the estate so bequeathed to her was held by her in trust for herself and other heirs of the testator.

Issue:

Did the court err in dismissing the amended bill seeking to have a trust imposed on the estate?

Answer:

No.

Conclusion:

The court affirmed the trial court’s decision and held that the mere intention to revoke a will, unaccompanied by any act of testator to execute that intention, was not sufficient to revoke the will, even if the execution of the intention was frustrated by the fraud and improper conduct of other persons. The court further held that §§ 14 and 15 of the Florida Probate Act, 1933 Fla. Laws ch. 16,103, provided the manner and means by which a will could be revoked and the bill of complaint did not show that either of the prescribed methods were attempted by the testator.