res in the cause was served on Adams in Polk county; that judgment by default and final judgment against Adams were rendered in the cause by the county judge's court; that a transcript of the judgment was filed and recorded by the clerk of the circuit court in the foreign judgment records of the county; that execution issued thereon and was levied on the lands of Adams; that the lands were sold under the execution, and a conveyance thereof made by the sheriff to the purchaser at the execution sale; and that several subsequent conveyances of the land were made. A cancellation of the transcript of the judgment of the county judge's court and the conveyances as a cloud upon the title to the land was prayed, upon the theory that the judgment of the county judge's court is void. A demurrer to the bill of complaint was sustained, and the complainant appealed. In the case of Garcia v. Pardo, 57 South. 974, decided at this term, it was held that upon the establishment of a county court in Hillsborough county the trial jurisdiction of the county judge of the county as such in ordinary civil actions at law ceases, and no longer exists, and that while a county court exists in the county a judgment in an ordinary civil action at law, rendered by the county judge as such, is void. A county court in Hillsborough county was organized by chapter 5987, Acts of 1909, which by its terms took effect upon its approval by the Governor May 5, 1909. The action in which the judgment here sought to be canceled was rendered was begun in the year 1910. At that time the trial jurisdiction of the county judge as such in ordinary civil actions at law was suspended, and the judgment rendered was unauthorized. As the execution was levied upon land, and a sale and conveyance of the land was made under the execution, the remedy at law is not adequate. Therefore equitable relief is proper. The order appealed from is reversed. TAYLOR, SHACKLEFORD, COCKRELL, and HOCKER, JJ., concur. (63 Fla. 177) HOGANS v. DEMPS. sumption that the court ruled correctly must prevail. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1249, 2899, 3729, 3730, 3735-3747; Dec. Dig. § 926.*] 3. APPEAL AND ERROR (§ 690*)-EXCLUSION OF EVIDENCE HARMLESS ERROR. It is not error to reject testimony as to the breach of an agreement, when there is no evidence of the existence of such agreement. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.*] Error to Circuit Court, Suwannee County; F. W. Butler, Referee. Action by J. C. Hogans against E. A. Demps. Judgment for defendant, and plaintiff brings error. Affirmed. L. E. Roberson, for plaintiff in error. McCollum & Harrell, for defendant in error. PER OURIAM. Hogans brought ejectment against Demps. A former judgment for the plaintiff was reversed, because a present right of possession in the plaintiff was not shown. Demps v. Hogan, 57 Fla. 60, 48 South. 998. A second trial was before a referee, and resulted in a judgment for defendant, to which plaintiff took writ of error. The transcript does not purport to contain all the evidence adduced at the trial; therefore the grounds of the motion for new trial, that the finding is contrary to the evidence, cannot be considered here. There is nothing to indicate that the finding and judgment are contrary to law. [1] At the trial, the plaintiff offered testimony that he authorized his agent to put the The defendant in possession of the land. questions asked are not in the transcript. If the questions asked were not objectionable in form, the error, if any, in excluding the testimony sought to be adduced is rendered immaterial in view of the finding of the referee that the defendant is in possession of the lands by authority of the plaintiff. [2] An offer of testimony, that plaintiff was in possession of the lands, claiming them as his own, before the defendant went into possession, was objected to, on the grounds that it called for an opinion of the witness, and that facts were not asked for. The objection was sustained. As the particular questions asked are not before us, it must be assumed that the referee excluded them (Supreme Court of Florida. March 1, 1912.) because they were subject to the specific ob (Syllabus by the Court.) L APPEAL AND ERROR (§ 1057*)-HARMLESS ERROR-REJECTION OF EVIDENCE. Where testimony is rejected that seeks to establish a fact that is afterwards found to be a truly existent fact by the referee, the error in such rejection, if any, is harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4194-4199, 4205; Dec. Dig. § 1057.*] jection made to them; that they called for opinion and not facts. [3] Testimony offered to prove that the defendant had not paid or offered to pay the plaintiff the purchase price of the land does not appear to have been improperly excluded, since no contract or promise to pay appears. All the evidence not being in the transcript to show reversible errors, if any, the rulings complained of are not shown to Where asserted error in rejecting testi- be erroneous. See Falk v. Kimmerle, 57 Fla. mony is not clearly made to appear, the pre- 70, 49 South. 504, 17 Ann. Cas. 839. In the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 2. APPEAL AND ERROR (§ 926*)-EXCLUSION OF EVIDENCE-PRESUMPTIONS. case of Goodwin v. Markwell, 37 Fla. 464, 13 | The court found for the complainant and deSouth. 885, the offer was to prove the ex- creed accordingly. istence of a contract and a compliance with it. On appeal, the defendant argues that the testimony does not sustain the decree, and No reversible error being made to appear, suggests laches. the judgment is affirmed. WHITFIELD, C. J., and TAYLOR, COCKRELL, SHACKLEFORD, and HOCKER, JJ., concur. (63 Fla. 531) MILLINOR v. THORNHILL. [1] While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly (Supreme Court of Florida. March 1, 1912.) shown to be erroneous. (Syllabus by the Court.) [2] In equity, as well as at law, every pre 1. APPEAL AND ERROR (§ 1009*)—REVIEW-sumption is in favor of the correctness of the QUESTIONS OF FACT-FINDINGS OF CHAN CELLOR. While the findings and conclusions of a chancellor, where the evidence is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] 2. APPEAL AND ERROR (§ 900*)-REVIEW PRESUMPTIONS. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of fact, will not be reversed, unless the evidence clearly shows it to be erroneous. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3667-3669; Dec. Dig. § 900.*] 3. APPEAL AND ERROR (§ 1009*)-REVIEWQUESTIONS OF FACT-SUFFICIENCY OF EVI DENCE. Where the testimony is conflicting, but there is evidence to support the finding of the chancellor, the decree will not be reversed on the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. § 1009.*] Appeal from Circuit Court, Suwanee County; Ira J. Carter, Judge. Bill in equity by Charles Thornhill against R. L. Millinor. From a decree for complain ant, defendant appeals. Affirmed. Davis & Whitnell, for appellant. L. E. Roberson, for appellee. PER CURIAM. Thornhill brought a suit for the cancellation of a deed of conveyance to lands which purported to have been made by him and his wife; the grounds for equitable relief being alleged imposition upon the complainant, an ignorant and illiterate colored man, and that the wife did not join in the pretended conveyance, which the evidence shows to be of the homestead. rulings of the trial judge, and a final decree rendered by him, based largely or solely upon questions of facts, will not be reversed, unless the evidence clearly shows it to be erroneous. Brannon v. Blume, 61 Fla. 505, 55 South, 549. [3] The testimony is conflicting, but, as there is evidence to support the finding of the chancellor, the decree will not be reversed; it not clearly appearing to be erroneous. Under the circumstances disclosed, no such laches appear as will bar the relief sought. The decree is affirmed. WHITFIELD, C. J., and SHACKLEFORD, TAYLOR, COCKRELL, and HOCKER, JJ., concur. (63 Fla. 355, 376) BROWN v. AVERY et al. (Supreme Court of Florida. Feb. 20, 1912. On Rehearing, March 26, 1912.) (Syllabus by the Court.) 1. WILLS (8 168*)-REVOCATION-NECESSITY [Ed. Note.-For other cases, see Wills, Cent. Dig. § 439; Dec. Dig. § 168.*] 2. WILLS (§ 114*)-EXECUTION-ATTESTATION. 1906, providing that "all wills of personal propSection 2274 of the General Statutes of erty shall be in writing and signed by the testator or some other person in his presence, and by his express direction," is practically declaratory of the rule already existing at common law. No subscribing witnesses thereto are requisite. An answer was filed by Millinor, denying the allegations of the bill of complaint, and [Ed. Note. For other cases, see Wills, Cent. testimony was taken before an examiner. | Dig. §§ 277-279; Dec. Dig. § 114.*] 3. WILLS ( 114*)—EXECUTION-SUFFICIENCY |fore her death, would not affect the validity of AS TO PERSONALTY. the instrument signed. A will executed in this state, purporting to devise both real and personal estate within this jurisdiction, but with no subscribing witnesses thereto, is valid as to the personalty, if valid in other respects, though inoperative as to the real estate. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 277-279; Dec. Dig. § 114.*] [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 456, 457; Dec. Dig. § 179.*] Appeal from Circuit Court, Escambia County; J. Emmett Wolfe, Judge. Bill in equity by Elma G. Brown against Louise Avery, by her next friend, A. M. Av 4. PLEADING ( 214*) — DEMURRER — ADMIS- ery, and others. From an order sustaining a SIONS. A demurrer admits the truth of all such matters of fact as are sufficiently pleaded, but allegations of mere conclusions of law are not admitted by a demurrer, for the law is to be ascertained by the court. [Ed. Note. For other cases, see Pleading, Cent. Dig. 525-534; Dec. Dig. § 214.*] 3. PLEADING (8 214*) — DEMURRER SIONS. - ADMISA demurrer does not admit as true allegations which the law would not allow to be proved. [Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 525-534; Dec. Dig. § 214.*] 6. WILLS (§ 93*)—Character of InstrumeNT -PAROL EVIDENCE. As a general rule, parol evidence is inadmissible for the purpose of showing that an instrument purporting to be a will, fair and regular on its face, properly executed as such, was not intended to operate as a will. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 222-224; Dec. Dig. § 93.*] On Rehearing. 7. WILLS (8 179*)-CODICIL-EXECUTION. Where an instrument in writing, which states that it is made as the last will and testament of the testatrix, expresses a purpose to change the disposition of property made by a previous will, and makes specific and definite disposition of property without ambiguity or imperfection in its terms, it is, when duly signed by the testatrix, a valid will of the personal property, even though it contains ineffectual provisions relating to real estate because the instrument was not attested by witnesses as is required for wills of real estate. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 456, 457; Dec. Dig. § 179.*] 8. WILLS ($93*)-PAROL EVIDENCE AFFECT ING. The testamentary intent expressed in a valid will of personal property may not be impugned by mere allegations that the instrument was not intended as a will, and that it was not signed with testamentary intent, but was intended merely as a memorandum to enable the attorney to prepare another will, at least in the absence of a clear and positive showing that the instrument impugned was lawfully executed to effect a different or collateral purpose wholly inconsistent with the intent expressed in the instrument; there being no suggestion of a change of testamentary intent, or of fraud, mistake, imposition, incompetency, illegality, or other infirmity in the instrument or in the making and execution of it. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 222-224; Dec. Dig. 93.*] demurrer to the petition, complainant appeals. Affirmed. The following instrument, with due proof of the execution thereof, was filed with the fered for probate as the last will and testacounty judge of Escambia county and ofment of Emily C. Wright, deceased: "I, Emily C. Wright, of the city of Pensacola, state of Florida, being of sound mind and memory, do make and publish this, my last will and testament, revoking all others: "(1) I give and bequeath to Cornelia Scriven Brown all of my stock in the First National Bank of Pensacola, and direct that the same remain in the possession and control of the persons hereinafter designated as my executors-of my last will and testament, until she is twenty-one (21) years of age, and that all of the earnings and dividends of the said stock shall be paid to her mother directly for her education and maintenance until she is eighteen (18) years of age and thereafter directly to her. "(2) I give and bequeath to Cornelia Scriven Brown all of my silverware of every description, to be handled and used by her until she is eighteen (18) years of age, in such manner as said E. G. Brown and R. M. Cary executors shall direct. "(3) I give and bequeath to Henry Wright Brown five thousand ($5,000.00) dollars to be paid to him when he attains the age of twenty-one (21) years, but to be held in trust and handled for him until that time by the said executors. "The foregoing bequests 1, 2, 3, to Henry Wright Brown and Cornelia Scriven Brown are upon condition that they be allowed to, and do remain in their mother's custody and care until they respectively become twentyone (21) years of age. The violation of this promise shall work a forfeiture in the mother's favor-and it is my wish that their mother make a will designating a guardian for them in the event of her death before their majority. "(4) I give, bequeath and devise to my sister, Mrs. Marian E. Caldwell, the lot, together with the improvements thereon on Tarragona street in the city of Pensacola, which 9. WILLS (§ 179*)-EXECUTION-SUFFICIENCY. I received from my father's estate to belong Even though a testatrix may have contem "(5) If my servant, Bella Morris, remains plated the execution of a will to be prepared to her in fee simple. by her attorney, if the instrument signed by her as her will, and sent to her attorney to use in my employment until my death, I direct in preparing a more formal document, is a suf- that she be paid the sum of two hundred ficient will of personalty, the mere fact that another will was prepared and was in her pos($200.00) dollars. session, so that she could have executed it be "(6) All the rest and residue of my prop erty, real, personal, and mixed, I give, devise and bequeath in fee simple to my adopt ed daughter Elma Gertrude Brown, for the term of her natural life, and upon her death such property shall go in fee simple to her children, the said Cornelia Scriven Brown and the said Henry Wright Brown share and share alike, to be possessed, managed and taken care of by a trustee to be designated by her in her will, failing which action by her, then in the care and custody of a person not of kin to them, to be legally appointed; but this provision shall not have the effect of interfering with the use of the said property by the said Elma Gertrude Brown, and she is to have the right to sell parts thereof and reinvest the proceeds from time to time, with the approval of the executors hereinbefore provided for. "(7) I hereby appoint as executors of this my last will and testament, R. M. Cary and E. G. Brown to serve without bond. "In witness whereof, I have hereunto signed my name on the 7th day of January A. "A. M. Avery, Jr." At the same time the following paper was also offered for probate as the last will and testament of such decedent: "I, Emily C. Wright, of the county of Escambia, state of Florida, do make this my last will and testament on this the twentyseventh day of June, 1911. "It was my intention to leave most of my estate to my adopted daughter Elma Gertrude Brown, but as she has offended my feelings and acted in a way repugnant to my feelings of propriety, I leave to her one hundred dollars per month and a house, either one of the East Gregory St. houses or one of the Spring St. houses-whichever she chooses. "My First National Bank stock and my house corner of Loyd and Barcelona St. I leave to Cornelia Scriven Brown, the income from bank stock to be paid for her maintenance and education to her guardians until she is eighteen years of age after that directly to her-she must before marrying be made a free dealer. "I leave one thousand dollars for my funeral expenses and a slab, similar to that in cemetery over my husband. "To Henry Wright Brown, I leave five thousand to be paid him when of age-also want him to be well educated at expense of estate. "To Louise Avery if she continues to live with me I leave ten thousand worth of mortgages the principal not to be paid her un "After both Brown children are of age, any residue to be equally divided between them. "To my sister Mrs. Marian Caldwell I leave the brick building on Tarragona St. inherited from my father, A. L. Avery. "To Cornelia Scriven Brown I leave my silverware, china and all household furniture. Emily C. Wright." The foregoing document was produced and offered for probate by John C. Avery, Esq., and was inclosed in an envelope upon which the following indorsement appears: "J. C. Avery, Atty., "American National Bank Building, City." At the same time the following affidavit was filed: State of Florida, Escambia County. "Before the undersigned personally appear. ed John C. Avery, who being duly sworn, de poses and says that he verily believes that the writing herewith exhibited as the last Will and testament of Emily C. Wright, deceased, date June 27, 1911, is the true last will and testament of the said deceased, and that he has no interest under the said will, and the same is in the handwriting of the deceased and that the signature thereto is her genuine signature and that he is well acquainted with her handwriting. "Jno. C. Avery. "Sworn to and subscribed before me this 15th day of August, A. D. 1911. "Henry Bellinger, County Judge. "[Official Seal.]" The appellant, Elma G. Brown, filed a petition, protesting against and resisting the probate of the instrument purporting to be a will, last copied above, which petition is as follows: "In re Estate of Emily C. Wright. "Application to Probate Will. "To the Hon. Henry Bellinger, County Judge: "The petition of Elma Gertrude Brown of Escambia county, Fla., would respectfully show unto your honor: "(1) That by the last will and testament of Emily C. Wright, late of Escambia county, Fla., who died therein on July 23, 1911, which last will is dated January 7, A. D. 1911, and which will be filed with you upon application for probate thereon on August 15, 1911, petitioner is constituted devisee and legatee of certain real and personal property of the testatrix therein mentioned. "(2) That there will be offered for probate as and for the last will and testament of said Emily C. Wright, as to all or a part of the property of said Emily C. Wright, a document purporting to have been signed by said Emily C. Wright on June 27, 1911. That by the terms of the said document your petitioner is named as legatee and also a devisee of certain real property of "(3) That petitioner desires to contest the "Wherefore petitioner prays that said docprobate of the document mentioned in para-ument mentioned in paragraph 2 above be graph 2 above as the last will and testament not admitted to probate, and for such other or a part of the last will and testament of relief as may be appropriate. said Emily C. Wright, and to that end files this petition as provided by the laws of Florida. above are as follows: "A. The said document was not at the time it was signed, or afterwards, intended by the said Emily C. Wright to be her last will and testament, or part of same. "B. The said document was intended by the said Emily C. Wright to be merely a memorandum for John C. Avery, Esq., her attorney, who had drawn the previous will of January 7, 1911, to enable him to prepare another will for her, and said document was not intended by said Emily C. Wright to be her last will. That said John C. Avery, Esq., upon receiving said document, did prepare in accordance with the said document a paper in proper form purporting to be the last will and testament of said Emily C. Wright with places for the signature of said Emily C. Wright and two witnesses, and sent same to the said Emily C. Wright to be executed, but though said Emily C. Wright received said paper so drawn by said John C. Avery, Esq., and had ample opportunity to execute it before her death, yet she did not execute same, but kept it among her papers intending not to execute it, and left it unexecuted at the time of her death. "C. The said document does not purport to have been signed, nor was it signed in the presence of two witnesses, so that as to real estate it is in law invalid. Being invalid as to real estate, it is invalid as to personal property as well, because as appears upon its face, in connection with the fact that the said Emily C. Wright left a prior valid unrevoked will as to the whole of her real and personal property, the said document was not intended, nor should it be construed, as a revocation of such prior will, nor as being effective as a valid will of personal property, except upon condition that it should likewise be valid as to the real estate of said Emily C. Wright, which it is not. "D. The said document purports to devise and bequeath both real and personal property, but is not signed in the presence of two witnesses whereby it is invalid as a devise. Its provisions as to disposition of real and personal property are dependent one upon the other, and the document not having been signed in the presence of two witnesses and being invalid, therefore, as to real estate, is likewise invalid as to personalty. "E. The said document was not intended by said Emily C. Wright to be testamentary; nor was it signed by her with testamentary "Elma Gertrude Brown, Petitioner. "August 14, 1911." Personal service was had upon all the persons interested as devisees, legatees, or otherwise in the probating of such papers, with the exception of Louise Avery, a nonresident, who was served by publication. Lucius S. Brown, their father, was appointScriven Brown and Henry Wright Brown, ed guardian ad litem to represent Cornelia their rights and interests to the court for adinfants, who filed an answer, submitting judication. A. M. Avery appointed guardian ad litem for Louise Avery, who demurrer to the petition of Elma G. Brown: was also an infant, and filed the following was "Louise Avery, by A. M. Avery, her guardian ad litem, demurs to the petition of Elma Gertrude Brown herein, because the same is bad in substance, in this: "As to the grounds numbered A, B, and E: "(1) It appears from the face of said petition that parol testimony varying the meaning of the instrument offered for probate will be necessary to establish the said grounds in said petition. "(2) That the will offered for probate is complete in itself and shows a testamentary intention. "(3) That the said grounds are insufficient in law. "As to the grounds numbered C and D: "(1) That said grounds set up no sufficient reason why the said will should not be probated as a will of personalty. "(2) That the instrument offered for probate as a will of personalty is not conditioned on its being valid as a will of realty. "(3) The disposition of real and personal property are not dependent one upon the other. "(4) That the said grounds are insufficient in law." The county judge made the following order upon the demurrer: "The demurrer of Louise M. Avery, by A. M. Avery, her next friend, to the petition of Elma Gertrude Brown filed herein, coming on to be heard, and having been submitted to the court upon argument of counsel for the respective parties, and the court having duly considered same, and being advised of its opinion that said demurrer is well taken: "It is therefore ordered and adjudged by the court that the said demurrer be, and the same is hereby, sustained; and the said Elma Gertrude Brown, announcing that she did not desire to amend her petition, and final judgment upon the demurrer being requested by the said Louise M. Avery, by her next friend, A. M. Avery, final judgment upon said demurrer is hereby rendered, and |