25 Fla. 26 | Fla. | 1889
Mrs. M. M. Chaires, the widow of Chas. P. Chaires, deceased, filed her petition in the Circuit Court of Leon county for dower in certain lands described in the petition, and for one-half share of the personal property of her said husband. Notice in compliance with the statute was served upon appellants, as executors of Chas. P. Chaires, and they filed a plea in the following words : “That in the lifetime of the said Chas. P. Chaires, and while the said Martha was his wife, she, the said Martha, willingly and without his consent, left the said Chas. P. of her own accord and went away and continued in adultery with one Benjamin C. Chaires, and that the said Charles P. Chaires was not at any time after such leaving or continuing in adultery reconciled to her; whereupon, and by .«means whereof, she is barred of her dower.” Issue was
The first error assigned is “ that the court had no jurisdiction of the subject matter of the suit as a court of law.”' This objection is made here for the first time, and but for the fact that it is a fatal objection, if true, which may be-made at any time, we would pass it by as a matter that was waived below.
But the question, though raised so late, must be met. The ground of the objection is that while the summary-remedy provided by the statute of 1828 for the recovery of dower was suited to the courts as then existing, the Circuit Court as organized under the Constitution of 1868 were not vested with jurisdiction which included that given by the statute to the corresponding court of 1828. As the statute was enacted and still stands, it gives concurrent jurisdiction to two courts, county and Circuit, (formerly Superior) to allot dower. The proceeding was to be by7 petition of the widow setting forth what she claimed of the reality and personality of her deceased husband, and thereupon the court shall issue a writ to the Sheriff to summon commissioners to make the allotment; but the petitioner is required to give ten days previous notice of the application to the executors or administrators of the deceased. McClellan, sections 7 and 8, pp. 476-7.
As it is not denied that the jurisdiction conferred by this statute on one of the territorial courts then standing in the place of the subsequent Circuit Courts, was at the time of its passage, within the scope of legislative authority, the enquiry is whether the jurisdiction conferred on the Circuit-Courts by the Constitution of 1868 was so narrowed as tQ'
This summary proceeding is a substitute for the common law writ to obtain dower, and was intended to relieve the widow of the delay and cumbrous machinery of that law. It is a proceeding at law, and therefore appropriate to a court of law, as distinguished from a court of chancery. The Supreme Court of the United States so held in Parish vs. Ellis, 16 Peters, 451, where it refused to entertain an appeal growing out of a case founded on this statute, be-cause writ of error, and not appeal, according to the practice of that court, was the proper mode of bringing before it a case at law. Looking to the Constitution of 1868, it will be found that Circuit Courts were invested with original jurisdiction “in all cases at law in which the demand or value of the property involved exceeds one hundred dollars.” Under this we think it beyond doubt that the jurisdiction given to the Circuit Courts by the statute is fully sustained and perpetuated.
The extent of that jurisdiction is another question. Neither the county nor the Circuit Court can go beyond the authority expressly conferred. And in view of this, it is contended for appellants that the court cannot try the title to dower, but should confine itself to simple admeasurement of the same when the title is undisputed. This, then, would be the attitude of things. The widow came into court claiming her dower in strict accordance with the statute. The executors of the deceased husband also brought into court as the statute directs, plead that she is barred of her dower by reason of the adultery alleged. According to appellants"' contention this ends the case, for if the charge bars her clower, and the court cannot try the
The practice in Mississippi, where the same statute substantially was adopted in 1822, was different. The petitioner was not required to give notice except that provided for in the statute, viz: to the executors or administrators. The effect of that was that the court would proceed to ad
It appears, therefore, that in the two States having a statutory remedy like ours, the jurisdiction of the court is not ousted because a question is made in regard to the title to dower. In Alabama the question was tried, on bringing into court all parties interested, for a final adjudication between them and the claimants ; while in Mississippi the rial was limited to the claimant and representatives of the deceased husband, leaving the rights of others intested to be determined in some other appropriate tribunal.
In this State, so far as we are advised, there has never been any decision as to the proper practice under the statute; but we think the uniform course, upou filing a petition for dower, has been to give notice only to the executors or administrators, and that the courts have proceeded to act in the case with no other parties before them. Such a course under a law enacted more than sixty years ago would seem to give it a practical construction that allows the dower to be adjudged as between the claimant and the deceased husband’s representatives without reference to other parties ; and as between such claimant and representatives, there would certainly have to be a decision upon the right to dower, else the statute bore the weakness of arraying parties against each other before the court, while the court was left powerless to entertain any contest on the questions presented. Suppose a question should arise as to whether there had been a marriage, it can
We hold in accordance with the foregoing views that the court did not err in entertaining jurisdiction of the plea against the petitioner’s right to dower.
That plea was based on the British Statute of Westminster 2,13 Edw. I., chap. 34, which is this: “ If a wife willingly leave her husband and go away, and continue with the adulterer, she will be barred forever of action to demand her dower that she ought to have of her husband’s lands if she be convicted thereupon except that her husband willingly and without coercion of the church reeon
The errors assigned against the action ot the court in the trial are, that the court should have required Martha MChaires to answer the 4th and 6th interrogatories propounded to her by the defendants; and that “ the court should have sustained defendants"' plea and dismissed the petition.” Interrogatory 4th is an enquiry whether Mrs. Chaires had at any time confessed to her husband or any one else that she had been an unfaithful wife, and had had illicit intercourse with another person, &c.; and the 6th is an interrogatory, predicated on such confession, as to whether the husband had afterwards continued to reside with her. The court did not err in refusing to require answers to these interrogatories. No rule of law is better established than that which forbids disclosures by-husband or wife as witnesses of matters or conversations occurring between them during coverture. The books abound in cases to support the rule. We need only refer to 1 Greenleaf on Evidence, section 334, and eases cited in note 4, for the reason of the rule ; and to section 337, and to notes, for authorities to show that the rule holds good even after death or divorce.
As to the court having erred in refusing to sustain the plea of defendants, that depends upon the sufficiency of the evidence adduced to support it. The letters of Mrs. Chaires to her hnsband, though it seems they were admitted and considered by the court below, should have been excluded for the same reasons which protected her from compulsion to answer the 4th and 6th interrogatories. They were communications between husband and wife fully within the rule
There is no other evidence except that of S. P. Chaires, and there is nothing in that to sustain these points of the plea. He knows nothing of his own knowledge on the subject and testifies as to what the husband told him about the adultery of the wife, but says he knows they lived apart and were not reconciled after the separation. Whether she went away willingly, or whether she committed adultery after she went away, are matters about which his testimony is entirely silent. On such evidence the court was clearly right in refusing to sustain the plea.
The 4th error assigned is considered as abandoned. The 5fch is, that “ the court should uot have decreed in part in favor of the petitioner, but should have waited until the commissioners had allotted dower in the real and personal property.” The decree or judgment was general in its terms, declaring in substance that the petitioner was eutititled to dower in one-third of the real estate of which her husband died seized and possessed, or had before conveyed, whereof she had not relinquished her right of dower, and also (there being no child of the marriage) one-half of the proceeds of the personal property unsold; and orderiug the sheriff to summon -commissioners to make allotment accordingly.
In due time the commissioners summoned reported an allotment of one-third of the real estate, and at the same time reported that, for reasons given, they had been unable to make allotment in the personal property, and asked in
The appellauts, on the authority of Chaires et al. vs. Shepard et al., 7 Fla., 77, contend that these proceedings were irregular, and that the court “ should have waited until the commissioners had allotted dower in the real and personal property that is, as we understand it, that there should have beeu but one decree making the entire allotment. We do not think the case relied on justifies the contention. In that there had been no allotment except in lands and slaves and two other items of personalty, leaving all the other personalty to be dealt with afterwards ; and the court held that' as the allotment in these two items was contested and there was a large number of other items not included in the allotment, which might also be subject to contest, it was irregular to decree as to the two except in connection with the whole. As a consequence the decree was set aside as to the two items, leaving the allotment of lands and slaves untouched, and directing that the master ascertain the nature, state and amount of other personalty than slaves, with a view to a final decree. It will be seen that when the court held that the decree was irregular in that case it was upon proceedings very different from those in the present case, and that while it set aside a portion of the allotment, it left other portions standing. In the present case there were two reports of commissioners, one as to realty and the other as to personalty, which were confirmed by separate decrees. But there was no such complication of the proceedings, nor uncertainty in the allotment as a whole,
The last error assigned is, that the court should have refused to confirm the report of the commissioners, because more real and personal property was allotted to the petitioner than the statutes authorize. There were no exceptions to either report, and no matters are pointed out to us to show wherein more was allotted than was proper. It is not for us to practice diligence in search of mistakes of the •commissioners which the diligence of counsel has failed to bring specifically to our attention.
The judgment and orders of the court are affirmed.