7 Fla. 77 | Fla. | 1857
John S. Shepard having died in the year 1853, his' widow, heirs and distributees finding that the Will made by him was incomplete and insufficient to accomplish its objects, owing to the want of the number of witnesses required by our statute, entered into an agreement on the 29th day of June, 1853, for the allotment of dower to Mrs. Shepard, for the payment of the debts and distribution of the estate.
A difference having arisen between the parties as to the construction of this instrument of agreement, Chaires and wife, and Pettes and wife, two of the distributees, filed their. Bill in Chancery, complaining of its execution and asking for an equal share of the estate after disbursments provided for by the agreement and payment of the debts, and for general relief.
On the 23d of March, 1855, the parties made another agreement setting aside the former one except in its provisions as to the minor heirs and agreed “ that the widow should receive her dower and widow’s share in all ■ the real and personal estate of her deceased husband, and the rents, issue and profits thereof.” It was further agreed that the
On the 10th December, 1855, the Court appointed commissioners to make distribution of the estate, who made their assessment, assignment and allotment of the lands and slaves, upon which a decree was passed affirming the same, and assigning to each party his or her peculiar interest and share. A part of this decree, and the only part excepted to, gave to Mrs. Shepard “one third part of all the personal estate of the late John S. Shepard, other than that, specially decreed, including the proceeds of a draft drawn by Eredei-ick R. Cotten, on Smallwood, Anderson & Co., for eight thousand six hundred and forty dollars, of which Shepard was the owner at the time of his death.— And the said Robert Gamble, the Executor, is hereby ordered to pay the same to her Solicitor.” And further, “that she, the said widow, not having occupied the dwelling house and premises of her late husband since his death, is entitled to all the rents received, or to be received for said dwelling house and premises up to the date of this decree, and the Executor is ordered to pay the same to the said Catharine G. Shepard.”
The decree upon these two points is complained of, and its propriety brought up for the decision of this Court.
But the decree further declares “ that all that portion of the said bill of complaint which requires an account of his acts and doings to be rendered to this Court by the said Robert H. Gamble, Executor as aforesaid, be and the same is hereby dismissed without prejudice to the rights of any of the parties. It being understood that the said Executor is to settle his accounts in the office of the Judge of Pro* bates according to law, and according to the terms of this decree, so far as those terms affect such settlement.”
The agreement and decrees of the Court contemplate a final disposition of the subject, a full allotment of the dower, and a complete distribution.. This can, and should be done by referring the case to the Master to adjust the relative interests of the various parties, and allowing such portion to each as he may be foundentitled to, after payment of debts and expenses. In ordering such reference, it would be com» petent for the Chancellor at his discretion, to give such di" rections as might facilitate the adjustment, reserving his decree on the merits, to the final hearing.
There is also a further difficulty in relation to the widow’s claim of exclusive right to the rents of the mansion house and premises. The bill makes no special complaint on this subject, and the decree in relation thereto, is based on the assumption that the widow did not occupy the dwelling house during the interval which elapsed between the death of the husband and the setting off her dower in the lands and slaves. No evidence appears of this in the record presented to us, and though it was doubtless admitted by counsel below as it has been in this Court, we do not feel satisfied to decide the question upon the isolated fact of such abandonment. The facts and circumstances connected with the surrender of the dwelling should be fully presented.— The question is a delicate one, and the Court to decide it correctly should be put in possession of everything illustrative of the rights and equities of the parties. Without such information, a decision would obviously be imperfect and unsatisfactory. Whatever desire we might have to adjudicate the question, we feel constrained for these reasons not to dp so under present circumstances, but to reserve this, as well as the question made in relation to the draft of Fred. K. Cotten on Smallwood, Anderson & Co., until they shall be presented by exceptions to the Master’s report.