31 Fla. 139 | Fla. | 1893
The appellee, by her next friend, on the 11th of
The appellants demurred to this bill upon the following grounds, viz i 1st. That it doth not appear from the allegations of said bill that the complainant hath any right to equitable relief: 2nd. It appearing from the allegations of the bill that complainant is not in possession of the lands for which she sues, she is-not entitled to the relief prayed for in equity. 3rd. It doth not follow from the matters and things alleged in complainant’s bill that the will of Adam G. Summer is void in law or equity. 4th. It is incompetent for the complainant in- a collateral proceeding, as in this oase, to attack the probate of the will of Adam G.. Summer. 5th. It appearing from the allegations of the bill that proceedings of Little Berry Branch, in the foreclosure suit set forth in the bill, were proceedings-in rem to enforce the payment of purchase- money
The judge sustained this demurrer as to all that portion of the bill which does not relate to the right of the appellee to redeem the property referred to in the bill, but overruled it in so far as it seeks to deny the right .of redemption, and ordered that the bill be retained for the purpose of determining appellee’s light of redemption.
The single question presented in the petition of appeal is whether the foregoing facts bar the appellee from redeeming the mortgaged lands from the appellants.
It is an elementary principle of law that upon the death of a mortgagor of real property, without having assigned or devised his equity of redemption, it becomes vested in his heir, and in order to bar the heir of his right of redemption by a foreclosure, he must be made a party thereto; otherwise, as to him, the proceedings are a. nullity, and he may redeem the mortgaged 'real property after foreclosure and sale thereunder.' 20 Am. & Eng. Ency. of Law, 618 and 626; 8 Ibid, 215. (See Merritt, Executor vs. Daffin, 24 Fla., 320). But this elementary principle has been qualified by the statutes of this State, as construed by this court, and did not obtain to its full extent at the time of the decision of this suit by the lower court. In construing the statute law of this State, which touches upon this subject, this court has decided in a former
We will now consider this contention and ascertain whether it is tenable. It is evidently founded upon the assumption that the two cases are alike, for, indeed, if they are alike, then the decision would apply alike to both of them; but if they are not alike, and can be distinguished, the one from the other by important differences, then the decision does not necessarily apply to both of them, but may apply to one and not to the other. It becomes necessary, therefore, to ascertain and determine whether they are alike, or unlike and differ from each other in important particulars. It will be perceived upon a comparison of the facts in the two cases, that in the case of Merritt, Executor, vs. Daffin, the administrator of the mortgagor held possession of the mortgaged property of his intestate as assets and was made a party to the foreclos-. ure proceedings; while in the case under consideration the executor of a revoked will held the possession of the mortgaged property of the testator as assets, and was made a party to the foreclosure proceedings. In
It will be discovered by referring to the facts stated in the bill, which are admitted b y the demurrer to be true, that after making his will, Adam Gr. Summer intermarried with one Margaret J. Starke, on the 20th of December, 1865, and died on the 5th of July, 1866, leaving his widow surviving him, who gave birth to the appellee three days thereafter. Nevertheless this will was admitted to probate by a court of competent jurisdiction, and the probate remains unrevoked. There being nothing to indicate that the testator made his will in contemplation of marriage, his marriage and the birth of the posthumous daughter subsequently to the making of the will revoked it and made
We will now consider the effect of the probate of this revoked will. The probate of a will is the authenticated evidence, but not the foundation of the executor’s title. Williams on Executors (3rd Am. ed.), 234; Gregory vs. Oates, 18 South Western Eep., (Ky.), 231. It clothes him with no new or additional right to the testator’s property, but simply evidences the validity of the will which is the foundation of his right to said property. When unrevoked, it seems to be conclusive both in courts of law and equity as to the validity of the will so far as it extends to personal property (Williams on Executors (3rd Am. ed.), 450; 19 Am. & Eng. Ency. of Law, 182, note 1), but under the statutes of Florida, is prima facie evidence only of its validity so far as it extends to real property (Eevised Statutes, Section 1810); 1 Williams
The decree appealed, from is affirmed.