I think the judgment should be reversed because: first, the probate court misinterpreted and erroneously applied the law relative to the burden of proof wherein it found:
"The Court further finds that the contestants did not make proof of or sustain any of the allegations of their answers for the denial of the probate of said will, and that the equities of said cause are with the proponents."
"That the contestants wholly and entirely failed to make proof either of the mental incapacity of said decedent or that said will was obtained by the exercise of undue influence by Dr. Earl H. McRae."
The record is conclusive of the close confidential and fiduciary relation between testator and beneficiary. Dr. McRae was testator's physician, trusted *Page 142 business adviser and manager. Testator was aged, infirm and reposed great confidence in Dr. McRae. The beneficiary was likewise active in procuring the execution of the will, as well as establishing and preserving proof of mental capacity of testator. This Court has held in Barry v. Walker, et al.,103 Fla. 533, 137 So. 711:
"One of the essential requirements of law in trying any case is that the court shall weigh and try the facts of the case in the light of the correct rule as to who has the burden of proof with respect to the issues, and a judgment will be reversed for a retrial of the facts according to the proper principles of law governing the burden of proof where it appears that the ruling of the trial judge as to the burden of proof was erroneous."
This Court has held in Wartmann, et al., v. Burleson, et al.,139 Fla. 458, 190 So. 789:
"In will contest, burden is on contestants who charge undue influence to prove it, and only when a confidential relationship between testatrix and principal beneficiary is shown will a presumption of undue influence arise and the burden shift to the proponent to prove that undue influence was not exercised."
The English rule is:
"Although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not favorable circumstance for one in such a confidential position with respect to a patient laboring under a severe disease to take a large benefit under such patient's will, more particularly if executed in secrecy and the whole transaction assumes the character of a clandestine proceeding. In such *Page 143 a case the onus will lie heavily upon the party benefited to maintain the validity of the will." Ashwell v. Lomi, L R 2, page 377, 7 Moore (PC) 320, News English Case Law, Digest Subject, Wills 238.
Second. There was harmful error in the receipt of evidence for proponent. There is a presumption favorable to findings of fact by the probate court where there is ample evidence to support same. This presumption attaches, however, only where it appears that the case was tried according to established principles of law. All parties are entitled to a legal trial. When essential principles of the law of evidence are violated the case has not been tried according to law and in such instance no presumption of correctness follows the findings.
In this case there was error in the receipt in evidence of good reputation of the proponent. Numerous letters were erroneously received in evidence from Dr. McRae and Mrs. Knight. They violated the hearsay rule and in many instances were self serving in character. They greatly tended to prove proponent's case. By the admission of same over objection, the trial court judicially determined they were proper testimony, and we might as well assume that the findings were based on the erroneous testimony as well as proper testimony.
The trial court sees and hears the witnesses. His findings enjoy a presumption of correctness on appeal. The parties are entitled therefore as of right to have the court of original jurisdiction proceed in a legal manner. Final determination by this Court irrespective of the errors pointed out in effect deprives the parties of the right to have the evidence passed on *Page 144 by the probate court in a legal manner. It amounts to this Court assuming original jurisdiction with two strikes (presumption of correction) on the appellee.
The judgment should be reversed.
BUFORD, J., concurs.