Murphy v. Murphy

855 inci- liabilities that shirk the were legally legal necessarily ownership. dent privileged intendment of Section necessary

My view is L., S., landlord and G. well as of our C. G. R. exercise women who make married tenant statutes legal tenants assume the become privilege their statutory incident that relation. burdens think should be reversed.

I the decree Buford, concurs. J., Dwight University Murphy

Dwight v. and Cornell Murphy Executors, Murphy, Theresa Genetive cum testamento Powers, as Administrator A. and James deceased, et al. Murphy, Albert C. annexo the Estate of 856. 170 So. 26, 1936. Filed October

Opinion 10, 1936. December Denied Rehearing Bowen, Bowen, Shutts & Prevail, Crate D. P. G. E. S. Quick, Cason, McNutt, Hudson & G. Price, M. Heaney, & Postel Parma and John William Bar- (of Santa Heaney bara, California), for Appellants; Ferrell, & Reed, D. H. IGurtz & Redfearn, R.

Redfearn A. Sappenfield, Dunn, Gwinn Pell& J.Wm. for Ap- pellees. Charles Murphy, while visiting Beverly J.—Albert Davis,

Hills, California, on died January 1933. At time he Florida, was citizen a of the State of having perma- his nent residence at Miami Beach in Dade County. He was widow, survived his but no descendants. His last will testament, Beach, Florida, executed at Miami on Jan- 19, 1931, uary to which annexed was codicil signed De- 11, 1932, Hills, cember at Beverly Angeles Los County, Cali- fornia, filed for probate was' first and admitted to probate in the State of New York the will aof non-resident of that State. wife, named

The will as co-executors the testator’s The- brother, his Murphy, Dwight resa Genetive Murphy, the Trust New York. Guaranty The Company of executors so named in duly the will in the qualified Surrogate’s Court Thereafter, of New York New York. County, January on 9, 1934, the will probate was admitted to Dade County, Florida. executors administrator the and an Subsequently, annexo, cum testamento who had been the appointed by Court, Florida an aside procured setting original order the 9, Florida probate of the the January ground on will had not been proven on probate, as re- attempt Thereafter, 18, 1934, quired law. on August due acceptable proof the of will execution the been having made to the satisfaction of Dade County Judge County as a order sitting judge probate, an was entered the will the same reprobating appointing executors and administrator cum testamento annexo.

This suit was instituted in the Court of Dade Chancery Florida, County, for the purpose a construction of the will, widow, a determination rights of Theresa Genetive in relation to will Murphy, and the rights legatees under the will. The executors and Florida administrator cum testamento annexo were complainants below, in the court legatee while the widow and named in the will defendants. All were as' Mun- joined except Grace Galbraith William Norton answered. The sey case is now before appeal Dwight this Court Murphy, from the final legatees, one of the and Cornell University, decree entered in cause. from final decree its appealed (omitting recitations)

The ordered, decreed declared as follows: adjudged, The

“(1) question presented first prayer to bill as follows: amended is'

“1. herein, (a) the widow Theresa Genetive Mur- —Has death, whose phy, husband’s domicile was at the time of his Florida, from pro- in the State of dissent right in lieu thereof to take dower visions of the will and elect estate? so, the election of dower by at what time “(b) does — If take the widow effect? hereby the does Question (a), to court response

“In widow, Mur- Theresa Genetive and decree the declare death, was, at the time his husband’s domicile whose phy, Florida, to dissent from the right the has County,, Dade thereof dower lieu to take will elect in of the and provisions in his estate. response

“In to Question (b), hereby the court does that, take the widow elected to declare and decree when 25, dower, 1933, election took effect the said January husband, Mur- the Albert date death of her said Charles phy. to prayer The second

“(2) question-presented bill is as follows: amended

“2.—There no children nor lineal descendants being any deceased, of the what estate is widow en- portion his to, distribution, of her pursuant titled upon filing ? election take dower

“In Question response to the court hereby does declare that, decree as there were no no children lineal de- deceased, scendants of the as the evidence shows his estate consisted of personal the widow entirely property, her election to take is entitled dower to one-half estate it gross existed at the date death of deceased, her portion with mesne on dower together profits estate date of assignment delivery to the up) It appears of her dower to her. from evidence that Florida, the will in Dade probate prior County, had the widow an to elect opportunity against and before

863' State, the will in this the executors sold certain personal used on the property yacht ‘Shogun,’ owned the testator death, at the time of his and delivered the proceeds of is, therefore, sale to the widow. She ordered directed to account time proceeds for said at the assignment of her dower. The Court does not consider or declare that she estopped will against to elect said by having accepted before she an proceeds had elect in this opportunity State.

“(3) The third question presented to the- prayer amended bill is as follows:

“(3) herein, the election widow take by the —Does' dower in the have over the specific priority bequests thereto, contained in will said and codicil and the residuary, ? legatees

“In response 3, Question to the court does declare hereby and decree the dower of the widow in said estate has over priority any specific general or bequests contained in thereto, said will and codicil the and over legacies. residuary The fourth “(4) the question presented in to the prayer amended bill is as follows:

“4—Does the election by the widow take make to dower inoperative provisions the of said will made for her benefit? 4,

“In response Question to the court does declare hereby and decree the the by widow to election take dower inoperative provisions makes the of the will made her benefit. The fifth

“(5) question presented in the prayer to the amended bill is follows: case, the

“5—In this widow herein has elected to take dower in lieu of provisions made for her benefit said will; portion is such of the estate to which she is entitled election, of such subject virtue to:

“(a) Claims of creditors? expenses'? and

“(b) Administration costs federal? Estate or “(c) taxes—state response (a), “In to court question (b), (c), of the widow hereby does declare and decree that the dower creditors, costs subject the claims of administration to taxes, taxes, suc- expenses, or estate inheritance federal, Such taxes, or the estate. against cession state claims, costs, paid shall be out of the expenses, and taxes remaining custody half of estate gross to apart dower been set the widow’s has executors after her. prayer in the presented The sixth

“(6) question bill follows: amended is as herein “(6) Upon the exercise of election widow — provisions dower does such action all the take nullify will; not, remain effective? remaining provisions if what the court declare response question hereby “In does that the election of the widow to take dower decree that, will, of said provisions all nullify does not to the made for the widow exception provisions with will, portion remains effective as it in said dower been set apart. left after widow’s has estate prayer question presented seventh The “(7) follows: bill is as amended the election of dower the effect does (a)

“7 —What have, the of estate apart portion setting widow after entitled, distribution the division and which she is to the estate? of remaining portion of the or is the order the “(b) among other priority —What distribution of the portion in the remaining beneficiaries of the estate? court does

“In the response question (a) (b), to to of dower the hereby assignment declare and decree that except the will widow no on the provisions has effect widow, which for the as to the in the will legacies provided elects after she concerned become a so far as she is nullity decreed further the will. It is declared against named the other beneficiaries' the order of priority among of will, remaining portion in the the distribution the had estate, widow though the remains the same as case, legacies the residuary elected take dower. In to costs, administra- of in the payment will be consumed first creditors, or federal and state and expenses', tion claims the estate. taxes, charges against other legal succession residuum, the in the funds sufficient there If should not leg- specific general abatement of of law to the as rules then apply. acies shall the prayer the to question presented The

“(8) eighth follows; amended bill is effect, widow’s election to take does any,

“8—What if ex- for as' compensation acting on her right dower have estate? administration ecutor declare hereby the court does question “In response of her hus- the widow renunciation and decree that deprive does not dower to take election and her band’s' will executrix in acting compensation right her of her the estate. the administration in the propounded were questions The foregoing

“(9) The of complaint. bill the amended special prayers complaint bill amended amendment prayers following question; in effect propound to one-half right widow have “9—Does the' Canada, Equipment Transportation Company stock in right require Ltd., the same time and at one-half, the out of has' been set remaining after her dower apart, to estate pay Transporta- the debt due by Canada, tion Ltd.? Equipment Company “The in evidence that the Transporta- case discloses Limited, Canada, tion Equipment char- Company was 1924; tered in Canada on that it has never been February dissolved; it company’s required by that tax the Do- minion of has been regularly by corpo- Canada said paid ration both before after of the said the death Albert original Charles that its charter authorized Murphy; stock, issuance of five hundred par shares of no capital value; 1928 the charter of the was amended company the capital so as to increase stock of the one company to shares, value; par thousand no all the shares author- issued, by original charter ized were and eighty-two hundred shares of the five shares authorized amend- charter; ment to the that there were four hundred eighteen issued; shares which were never at time of the death of Albert Charles he said owned five Murphy hundred s'eventy-eight shares of said issued stock which been had stockholders, him assigned previous duly and which been his under had reissued name resolutions of the directors, board of the charter and required by by-laws other four (cid:127)of the that the shares is- company; said stock in company sued said were in the names outstanding persons, of'four other four had shares never been transferred to said four anyone by shareholders in the man- ner charter of required.by company the by- The finds corporation laws. court that said was a separate and that it entity was intention of corporate the testa- such, it which intention tor to treat never The changed. widow, and decrees that dower, declares Court taking entitled to one-half of the five hundred eighty- will two shares' but to one-half of the five outstanding, only hundred shares the seventy-eight name of the standing deceased at the his time of death.

“The court further declares and decrees that the evidence discloses that there deceased, was due the by Albert Charles Murphy, to the Transportation Equipment Company Canada, Limited, death, at the time $245,- of his the sum of 647.08 on a note or signed bond by company, him to said which had been secured aby mortgage signed by him on his ‘Shogun’; yacht that the by indebtedness represented said note and mortgage has never yet paid, been and that 1, the interest thereon inis default from at January cent, the rate of per per three annum. The further Court declares and that out decrees gross one-half of assets of said estate has remaining after the dower widow’s her, been apart Transportation set the said claim of the Canada, Limited, Equipment Company must paid. be It further appears yacht has been sold the ex- ecutors, that, as a result economic depression, $72,600.00, or only amount, approximately that ob- was tained the executors for said which proceeds yacht, were and are an asset of the entire gross estate and which widow, has the benefit. estate received As the under dower, her claim for is' interested only in the assets of the liabilities, estate and it is declared and decreed she nor of the dower part that neither to her any assigned for the responsible payment part be of the said any shall Transportation Equipment Company due to indebtedness Limited, shall Canada, paid and that same out of the the estate the ex- remaining custody one-half set has apart. ecutors after her dower been as follows “(10) question One other was at argued length court: before will, should against

“10—-Since has elected widow the sixth $500,000.00 her benefit in made for bequest will, remaindermen the benefit of the item of and for in trust for the therein, up general named be set legacy her elec- at the time being benefit of the remaindermen effective? tion to take dower became $500,- item six the bequeathed “Under of will the testator will, to held 000.00 to the trustees named in the same be the the to purpose proceeds in trust for of investment and the is It named in item six. be to the as said paid beneficiaries that shall be to wife paid the income his provided first installments, item also life, and said annually, quarterly $200,000.00 said trust of dispose authorizes the of wife to remainder, the to as to the or whole fund in her will. As not of said dispose the should event widow amount trust fund should $200,000.00, it said provided that was mother the in the event of the estate the residuary added wife, estate residuary that said the testator survived the the benefit of the trustees' for managed by should be entire the consideration of Upon testator. mother of the thereof, de- the court will, hereby item six does well as as the elected against when the widow decree that clare and of operative became as dower, election her taking bywill 25, 1933; husband, her January of the death the date of election her at equivalent that her was death legal husband, her far as the terms moment as of so same the concerned; that it disclosed evidence will are is the testator, Baldwin, that the mother of the Elizabeth Jennie 1933, 25, to live on and continued until living January was 1933, June, first for this reason estate day entitled, Elizabeth Baldwin is as a resid- of the said Jennie from estate from residuary to the income legatee, said uary 1933, testator, of the death of date January 1, 1933, Eliza- the date the death of the said Jennie June further declares and decrees beth Baldwin. The court item the will were con- remainders in said six of created been de- tingent have remainders that the same would dower, thereby stroyed the election of the widow take estate a depriving contingent precedent remainders of them, fact that under our support if it were for the termination such law are accelerated by remainders to take of the widow estate. the election precedent By dower, accel- was of said remainder interests vesting testator erated to the date of the death became date; and, above, as inoperative as of stated the estate Baldwin, represented Elizabeth in this case by Jennie executor, defendant, entitled, Dwight Murphy, $500,000.00 income from legatee, to the the said residuary she time lived after trust fund for the the death period deceased, her Albert Charles Murphy; of said $500,000.00 fund, her remainder in said trust death interest testator, of Albert terms of the will Charles under deceased, the other remaindermen in and named Murphy, became to said trust fund as six of the will entitled item far as be consumed as bemay necessary residuary legacy in the residuum for the pur- with other assets rata pro any creditors, of expenses and of costs of claims pose paying inheritance, taxes, administration, estate, succession and federal, legal charges against other and state and both estate. testator, declares that the further and decrees-

“The court domiciled was in of Murphy, County Charles Albert death; Florida at the time of his the State of Dade and estate assets of his is the of Dade County the situs Florida, and that the same shall of be admin- and the State istered accordance with the of applicable laws the State of; Florida force at the time death of the testator. “The court cause jurisdiction retains of this to settle all other court questions jurisdiction this has to settle amended, under complaint, the amended bill and the thereunder, decree, not settled this as to the proceedings by court seem just shall proper. and Chambers, Miami, Florida,

“Done and Ordered in 5th April, 1935. day

“Uly O. Thompson, “Judge.” The Will Testament Last of Albert Charles Murphy, codicil, together as probated with its in Dade County, as above construed the decree of the Circuit Court Dade County light surrounding circumstances been, facts, to which reference has or will hereafter be opinion, made in this reads as follows: “I, a resident Beach, Murphy, Miami Albert Charles Florida, make, Dade State of County, do publish hereby Testament, to be Will declare this Last my re- hereby all Wills dispositions and other voking Testamentary at any time heretofore made me. n I my debts, direct that just all funeral and tes- “First. as soon as expenses' be paid practicable

tamentary my after decease. 'Shogun’ I direct Diesel that my yacht shall

“Second. Executors, and proceeds that the by my be sold sale and disposed part thereof shall be added to a of my estate. residuary I give and all bequeath furniture, my household

“Third. silver, books, automobiles, jewelry, paintings, clothing, and and household personal all other belongings any nature of which I die possessed referred (excluding yacht only to wife, in Paragraph Second), to my Theresa Genetive Murphy. wife, If said my Murphy, Theresa Genetive me, does not survive I give personal and bequeath prop- erty Brother, referred to in this Will to paragraph my of my Dwight Murphy. Dwight brother, If said my Murphy, me, does not survive I and give bequeath personal prop- erty referred to in of mine brothers paragraph me, who survive and alike. share share If she is in of my at the time my employ “Fourth. death, I Dol- give and the sum of Two Thousand bequeath Munsey. lars ($2,000.00) to my secretary, Miss Grace death, If at my my he is the time employ “Fifth. I give ($2,- and the sum Two Thousand Dollars bequeath chauffeur, my William Norton. 000.00) wife, If my sur- Murphy, “Sixth. Theresa Genetive me, I bequeath vives the sum of give Five' Hundred ($500,000.00) Dollars herein- Thousand Trustees my after named the following Nevertheless, In Trust To purposes: uses and invest reinvest hold wife, trust the lifetime of single during same as fund my Tpieresa collect the in- and receive Murphy, Genetive and, therefrom, after all lawful paying charges come over the net in connection therewith to pay commissions wife, Theresa Gene- to my income derived therefrom said installments, annually, during quarterly Murphy, tive wife; my lifetime said that, principal trust fund However, “Provided, to, the sum Two Hundred Thou- hereinbefore referred of such shall sub- principal sand ($200,000.00) Dollars Will, wife, Theresa Gene- disposition by by my ject and without of any restrictions absolutely Murphy, tive whatsoever, I direct the Trustees here- nature kind or sum over said oí assign pay fnafter named convey, the Ex- ($200,000.00) Hundred Thousand Dollars Two wife, of said in Will my ecutors or Trustees named for Murphy, at the time of her death Theresa Genetive thereof. distribution mother, “If survives Baldwin, Elizabeth my my Jennie then, wife, Ti-ieresa Genetive Murphy,

said wife, I principal death of said direct my remaining shall be added to and become a of part fund of said trust residuary trust fund entire consisting my are purposes specified uses and shall be held for the same Will, shall disposed be Ninth of this Paragraph my of said provisions Paragraph with the in accordance mother, Ninth. If does Baldwin, my Elizabeth Jennie wife, not survive said Murphy, my Theresa Genetive then, wife, upon the death my Theresa Genetive Murpi-iy, I direct that the fund remaining principal of trust Paragraph referred to Sixth Will shall be dis- my posed of as follows:

“One-half (1/2) remaining principal of said trust shall fund be conveyed, assigned paid over to my Dwight brother, if he Murphy, wife, survives my said absolutely and forever:

“The other one-half (1/2) principal remaining Dwight fund, said trust or brother, if my said Murphy, wife, does survive my said Theresa Genetive Mur- phy, then all of the principal fund, of the said shall trust be assigned conveyed, paid over to Cornell Univer- Ithaca, York, sity, New the same added to Murphy Fund, Albert C. and to be used by said Cornell University purposes specified B sub-paragraph Ninth hereof. Paragraph Sylvia wife, If former my Murphy, “Seventh. Ford me, survives I the sum Hundred give bequeath of One Thousand my Dollars hereinafter ($100,000.00) to Trustees named, Trust, Nevertheless, for the uses following In and purposes:

“To invest and reinvest and hold the same a single as Sylvia trust fund wife, during lifetime of former my therefrom, to collect and receive the income Murphy, Ford and, after all paying lawful in charges and commissions therewith, connection net pay over the income derived Sylvia wife, therefrom to said former my Murphy, Ford installments, in annually, lifetime of quarterly during my said former wife. Upon the of former my death said wife, I direct that the shall principal of said trust be fund added to and become a of trust of part consisting fund entire my residuary and shall be held for the same as purposes uses and are Ninth specified of Paragraph Will, shall with this of in accordance my disposed be provisions of said Ninth. Paragraph “Eighth. Harry brother, If my sur- Murphy, Paul me, vives I give bequeath the sum of One Hundred Dollars Thousand ($100,000.00) to herein- my Trustees named, In Trust after Nevertheless, for the following purposes: uses and

“To invest reinvest and hold the same a single Harry brother, trust fund the lifetime of during my Paul therefrom, and, collect and receive the Murphy, income lawful all paying charges after commissions in con- therewith, to over the net pay nection income derived there- Harry brother, from to said my Paul Murphy, annually, installments, during lifetime of quarterly said my mother, sur- If my Baldwin, Elizabeth brother. Jennie Harry brother, then, upon said Murphy, vives my Paul brother, I principal the death said direct that my part said trust shall be fund added to and become estate, and shall trust fund entire consisting residuary my specified are purposes be held for the same uses and Will, disposed Ninth and shall Paragraph my Ninth. Paragraph provisions in accordance with mother, sur- Baldwin, does not If my Elizabeth Jennie Harry then, brother, Murphy, Paul vive said my Harry brother, I di- Murphy, the death of Paul said my in this trust referred fund to' rect that principal fol- disposed shall of as of be Eighth my Will Paragraph lows :

“One-half of said trust fund shall principal (1/2) Dwight brother, and conveyed, assigned be over to paid my Harry brother, Murphy, if he survives said Paul my forever; one-half Murphy, remaining and absolutely fund, or if said principal of of said trust my (1/2) Dwight Murphy, brother, said does not survive my Harry brother, principal then Murphy, all of Paul fund, and over conveyed, assigned paid trust be said shall York, Ithaca, University, same New to Cornell Murphy Fund, be added and to Albert be C. University purposes speci- for the said used Cornell B Ninth hereof. Paragraph sub-paragraph fied rest, bequeath all residue I devise and give, “Ninth. real, mixed, and personal property, remainder of my and or wheresoever situated and description kind and of every named, In located, hereinafter Trust Nev- Trustees my uses and purposes: ertheless, following for the reinvest separate invest and hold the same as a “To mother, the lifetime of during my fund Eliz- trust Jennie and receive to collect there- Baldwin, income abeth and, from, all lawful charges after commissions paying therewith, in connection over pay the net income derived mother, therefrom to my said annually, monthly install- ments, during the lifetime said mother. my mother,

“Upon the death of my said or death upon my me, if mother my said does not survive I direct that the fund, principal of said trust or entire my residuary be, as the case shall be may conveyed, assigned paid over as follows:

“A. One-half thereof shall be (1/2) conveyed, assigned Dwight brother, and paid over to my if he Murphy, forever; then living absolutely brother, or if my Dwight Murphy, is not then living, then said one-half shall conveyed, (1/2) paid assigned and over to Ithaca, York, New University, and shall be- Cornell Murphy come part and shall be' Albert C. Fund, University held and used by said uses Cornell and purposes, and conditions, terms more fully set forth in of this sub-paragraph Paragraph Ninth.

“B. The one-half remaining my said (1/2) residuary conveyed, assigned paid estate shall be over to Cornell Ithaca, York, of New for the uses University, following and purposes:

“The property money hereby given to Cornell Uni- versity shall be maintained a permanent fund scholarship Murpi-iy designated to be known Albert C. The income from this is fund to be year used each Fund.’ of a payment scholarship or scholarships to male University. attending students It wish my Cornell scholarships granted from this fund shall be sufficient to permit in amount thereof to holders secure an edu- University at Cornell without the necessity cation of work outside the curriculum doing University during for support, their the.amount for year necessary academic in the Trustees determined each case purpose to be n however, Trustees that said provided, of the University; discretion, which scholarships in create partial their may, income who receive paid may be students may deserving sources, who outside may, by or or assistance from other expenses. their pay part work year, the school during “In scholarships, of these it is wish granting my be students preference given to entering Univer- Cornell sity Louis, Illinois, it is from the St. when City East from do so. In case there are no possible applicants who, in in of the year City given any judgment of Cornell are receive qualified, Trustees University, award such scholarships, University such scholar- may discretion, other scholarships, applicants. their or ship scholarship, it is applicants my In wish that selecting their education completed preparatory students who have be given preference; shall records high scholarship with however, University may also take other the Trustees whether, their determining consideration factors into deserving the assist- applicant is opinion, particular any might my afford. It is scholarship such any ance which Scotch, Irish, English. students wish furthermore descent German, given may or Scandinavian French rules, regulations in accordance with such preference, time, from time to be established as may, conditions University. If Trustees Trustees Cornell should, time, to use consider it desirable at any University fund for the purpose income from said portion would permit which scholarships or more one establishing University take work graduate of Cornell graduates University of learning or at other institutions at'Cornell abroad, States, they shall study travel or or to United scholarships It is wish that my do so. right have 877 shall each be awarded that a awarded year, scholarship and student for one any shall be during continued year other of his education if such student years University only is, in the opinion of authorities of Uni- governing it While deserving of the same continue. versity, having is income fund established wish that the from the my hereby it is be the purpose furnishing scholarships, used for if, future, change understood that conditions so scholarships of the income the fund to application University undesirable, shall be the trustees of Cornell will best judgment free to utilize such income in their serve the of the students of University. welfare said inheritance, and direct that all Federal State

“Tenth. transfer, succession, death other taxes and legacy, of my and in connection with administration expense estate. out of paid residuary estate be my nominate, wife, I appoint constitute and my “Eleventh. Dwight brother, Murphy, and my Theresa Genetive Guaranty Company York, Murphy, Trust New which an office for at No. has transaction of business Avenue, Trus- New as Executors of and City, Fifth York Testament, I direct Last Will and my tees under Guaranty wife, brother said said my Trust Com- pany both said York to serve in permitted of New If, for or other capacities security. without bond giving Dwight Murphy, brother, fail reason, said should any my act, act, or either as cease Executor or qualify Testament, I nomi- under this Last Will and my Trustee brother, Walter P. nate, appoint constitute my Mur- Executor of Trustee under Last this my phy, and/or Testament, brother, my P. Murphy, Will and said Walter capacities one or place in either both of said to act Dwight brother, my with my Murphy, and stead wife, said and the said Murphy, Theresa Guar- Genetive anty event York, Company.of Trust New brother, Ex- as my qualifies Murphy, said P. Walter Trustee, ecutor permitted as I he be direct and/or or capacities giving serve either both of without said brother, bond or security. my other In the event .that said act, cease Murphy, qualify Walter P. should fail to or act, my Trustee under 'this either as Executor or said my Last Will and stead of place and Testament in Dwight brother, Guaranty that said I direct Murphy, act shall Co-Executor Trust of New York as Company wife, Co-Trustee, with said my Theresa Genetive and/or wife, in the event that said my Murphy, Theresa Gene- act, should fail to Murphy, or to act qualify cease tive either Executor Trustee or under this Last my Will Guaranty Testament, then, I direct that said Com- Trust pany sole shall act Executor sole York, New and/or Trustee, without the need of other Co-Executor or any being appointed place my Co-Trustee and stead wife, said brothers my the event and/or Guaranty Company Said shall, at Trust York, New time, any acting Trustee, be as sole Executor or sole it shall have authority, rights the same and powers, as herein are given Executors and Trustees. my I authorize Executors

“Twelfth. my any to retain or other which I property shall own securities. at date death, of my and to. turn all or part any over same Trustees, cash, to themselves as in lieu of and I authorize and empower my Trustees to retain and hold such securities or other so over to property turned them as aforesaid as all created, or a part any trust herein even though such securities or other property may of the character the investment required for of trust funds. I direect that my Trustees, and Executors in or re- making investments created, investments for or estate trust my any for herein shall use their discretion, own shall and not to be limited securities of character in- authorized law for the by vestment of trust funds. final Upon the distribution any part all or I authorize and property my empower my Executors Trustees to and to divide and/or convey, transfer and prop- deliver securities or other any erty them, then kind, held be persons who may to entitled thereto. All stock and all extraordinary dividends

“Thirteenth. stock, bonds, realized appreciation the value of securities or other from sale resulting or other property disposition income, thereof shall be considered but principal and not stock ordinary paid dividends aby corporation in regularly lieu of or in addition to cash shall be regular dividends however, considered income and not principal; provided, that the Trustees’ determination as to whether stock any dividend is or and their determi- ordinary extraordinary, nation stock any as to whether dividend should be appor- aside, in whole in- part, tioned or set or in to or principal come, all binding upon shall be conclusive and now persons or or hereafter interested estate my hereby trust any at a created. In the case of the purchase premium any created, it not be necessary bonds for trust shall any hereby to set sum out aside any principal the Trustees premium. amortize to In respect any to at investments any

“Fourteenth. a portion time estate or the constituting my principal of created, any trust shall hereby my Trustees have the right to join in or become a agreement party reorgani- or any zation, readjustment, merger, consolidation exchange, or securities, deposit such and any and pay charge prin- re- may which with sums any such trusts cipal any securities hold new any to receive quired thereby, thereof, be au- not the same whether or issued as' a result trust funds. investment of law for the thorized are hereby My Executors and Trustees “Fifteenth. though required, retain empowered, authorized seized, or un- real of which I die an any property and all therein, interest part principal divided same from set lease release the herein and to up, trusts therefrom, time, with full to collect the time rents or any of such dispose property, authority and power thereof, sale, or and such part upon at terms public private otherwise, cash, and as as or said Executors my credit execute, advisable, and to proper deem and may Trustees deed proper and acknowledge, necessary and deliver thereof; purchasers or for transfer to the purchaser or deeds and power shall have the Executors Trustees also and my or and mortgages, existing mortgage to extend authority such any or security a loan loans negotiate advisable, necessary real loans and estate if deem such they make, mortgages or mortgage and execute deliver a and nec- therefor, as papers may other and such security therewith. essary in connection Whereof, (each have this Will “In I page Witness of which for the of identifi- signature, purpose contains my cation, thereof), in the affixed seal margin my hand and 19th One Nine Hundred on the Thousand day January, Thirty-one. and Murphy

“Albert Charles (Seal). Bastain. “H. S. P.

“A. Forcum. Dunn.

“Wm. J. “Signed, Sealed, Pi/blished and Declared by the afore- Testator, Albert Murphy, Charles sight presence us, of us and each of and for his Last Will and Testament, 19th, executed January One Nine Thousand we, Hundred Thirty-one, at his request his and in sight and presence, and in the sight presence of each other, have hereunto subscribed our names as wit- attesting nesses, Beach, Florida, at Miami Dade and State of County on the 19th One day Thousand Nine Hundred January, this attestation clause Thirty-one, having first been read over to us.

“Names. Addresses. Road, Beach, “H. S. Bastain. 833 Lincoln Miami Fla. Road, Beach, “A. P. Miami Lincoln Fla. Forcum. Road, Beach, 835 Lincoln Miami Fla. “Wm. Dunn. J. “Codicil

“to “Last Will and Testament Murphy.

“Albert Charles “I, Murphy, Albert Charles a resident of Miami Beach, Florida, Dade State of County, being sound and duress, menace, mind and disposing under acting fraud make, or the undue influence of any person, do hereby pub- lish and declare this to a Codicil be Last and my Will Testament made on heretofore the 19th of January, day One Nine Hundred Thousand and which Thirty-one, instrument, Bastain, H. A. P. Forcum said S. and Wm. J. witnesses, Dunn were and subscribing direct it thereto added and be taken thereof : part as : I hereby give “First bequeath and of sum One friend, Hundred Thousand Dollars unto ($100,000.00) my Taylor, present me, at Stevenson Peirce with residing absolutely and forever. confirm, re- I ratify do and hereby expressly

“Second: Last Will Testament publish my and redeclare said and modified, and extended. and herein amended hereby “In I this Codicil to have 'my Whereof, Witness my contains Last Testament of which (each page Will and identification, margin for the of signature, purpose De- this 11th of day affixed and seal thereof) hand my cember, at Thirty-two, One Thousand Nine Hundred and Hills, Cali- Angeles, Los County the City Beverly fornia. Murphy'(Seal).

“Albert Charles (cid:127) L. Erb. “Arthur Haugen.

“Bertha I. Wolfe.

“Doris and Declared “Signed, Sealed, Published Testator, sight Murphy, aforesaid Albert Charles Codicil, us, for a presence and of us and each and December, Nine Thousand executed the 11th One day on Testament, Will Last and Hundred and Thirty-two, his Nine One the 19th Thousand January, executed on day we, his his request at Hundred and Thirty-one, of each presence sight and in the sight presence, other, names as wit- attesting our hereunto subscribed have Hills, nesses, County Los Angeles of Beverly at City December, California, 11th One day on and State attestation Thirty-two, Nine Hundred Thousand us. over to clause been read first having Addresses. “Names. Drive, Beverly 1445 N. L. Erb. “Arthur Hills, Calif. Beverly St., Haugen. Rampart So. “Bertha Angeles, Los Calif. St., 525 No. Detroit I. Wolfe. “Doris Angeles, Los Calif.” 883 A will it has has no effect other than until potentially been will non-resident probated. Probate of a affects effect jurisdiction, within the and has no only property on the will itself purpose the limited validity beyond the State power possessed respecting plenary by case within its will involved in domain. The property first in York will of was State of New as the probated of the involved probata non-resident. So New York of Florida will did not establish in the State its validity stat Florida purpose administering applying are law made operation effectiveness and utes whose right as widow’s contingent upon probate, the fact of such a. pro time after specified to take dower within a election from which dissents. In bate of her husband’s will she re 298; Will, 200, 296, Petitt 243 Rep. 120 Kan. Pac. Witt’s 627; 227, Rep. Scripps 162 E. Morton, 28 N. App. v. Ohio Dunfee, 1061. 90 N. W. v. Mich.

Under Florida law applicable to this controversy L., (Section C. G. 3629 R. Albert S.),G. the widow of a resident C. who was the time of Murphy, Florida at decease, one after the probate his had of her husband’s year which will in Dade to make her final election to County from the will. time dissenting take dower The specified has reference the principal, origi- statute primary, nal, of the will in the domiciliary probate or -State domestic Florida, will of a deceased dom- inasmuch as the testate true, This fact despite in Florida involved. is iciled in which some other State was situ- property testator’s of time, acted first and theretofore point ated- have may original probate testator husband’s will to admitted the such State. cases,

And in where the such original will has been de- court, a by foreign tained so that the proponent cannot pro- 884 domi- testator’s State original probate

duce it original cile, purpose for the evidence thereof secondary if it a lost admissible, much were so as becomes probate (3rd Administration Law of American will. Woerner on 551, et seq. Ed.) pages hold, below, that the the Chancellor

We therefore as did prior of the State of died will of a citizen Florida who' 1933, original probate was admissible to the Probate Act of of Florida of the will accord- proof in the State only 18, statutes; August therefore that the Florida ing our 1934, of Dade Judge granting order of the County County probate exemplified photostatic of the will on an original therewith, accompanied record filed copy exemplified and an will, was' of witness to the oath a supplementary entered, attempt defective notwithstanding prior lawfully with compliance will in foreign will as a probate L., That Section 5475 3610 R. G. S. last cited C. G. statute accomplish or domestic original probate is ineffective to an is essential. probate where domestic widow, follows from what It has been said that the The- was, resa Genetive Murphy, whose husband at the time death, Florida, his domiciled State of right had the to dissent provisions from will and elect to take in thereof dower lieu a widow’s in her hsuband’s estate 20, 1934, on which August within one from year was 18, probate so, 1934. August we This hold to be the fact that after a notwithstanding probate first had, York, 3, will in 1934, New the widow on in- February dicated an intention on her part dower, not to elect to take which inchoate election was receded from specifically 1934, 11, prior her on a date August County Judge’s 1934,- 18, order of August revoking probate of January 9, 1934, original an awarding domiciliary'probate the will as of 1934. August held that 1 Circuit Court

In-response question (b) 1934, 20, on August when the widow to take dower elected 1933, 25, the date January election took effect as of That husband, Albert Charles Murphy. of the death of her our on authority correct affirmed conclusion was and is Hen Affleck Frazier Marjorie decision in the case recent Usher, al., 170 al., et derson, et v. A. Fla. Harry Rep. 846. Sou. of Albert the widow Charles now decided that

Having will, Her was entitled dissent from husband’s Murphy estate, a in her to take widow’s dower husband’s and to elect in- what dower consideration of that pass we next to a thereof to liability shall consist with reference terest estate, inheritance (1) part a proportionate bear Federal; administration costs taxes, (2) or succession State creditors. claims of expenses; (3) decree, In final the Chancellor held the dower his that creditors, subject widow to the claims of of the was estate, expenses, inheri- nor costs and nor administration taxes, Federal, State or against or succession tance cost, claims, estate, expenses and taxes that all involved but that re- portion gross out of estate be paid should of the executors after in the the widow’s custody maining apart to her. been set had dower Usher,

In the Henderson case of v. decided at supra, term, this that present Court held there a con- although is flict in the decisions whether as to dower sub- widow’s is taxes, “death” the better view that is ject to is such dower estate, subject proportionate to the its share of payment succession against inheritance and taxes assessable the de- should be there- accordingly charged cedent’s main It cost of

with. held in case was also death estate after decedent’s taining preserving from the prior paid profits to distribution should during period from the of the estate arising assets obtain the same rule should time. On same principle prior of the estate expenses of administration as to the such are expenses necessarily allotment of dower because estate in and should gross incurred interest decedent, rule out debts of the come of it. But toas otherwise, (Sec of the statute plain language because the L., R. the effect that dower S.) tion 5494 3630 G. is to C. G. decedent” debts of the “shall be free from all liability as such. L., S., 5494 3630 R. provides C. G. G. simply

Section case, children, if in the there be the widow present no shall be one-half of the estate free from all lia- entitled to It bilities “of the decedent.” will be observed for the debts from the statute does “free all debts of say the not decedent,” for the of the but “free from all liabilities debts fine, an in exemption In the statute statute decedent.” is of her de- exempts the widow’s share particular this certain burdens that would estate from husband’s ceased for attach, exemption, for statutory such otherwise but Wilmarth, in Benedict v. instance out example, pointed 84, such ex- where no Rep. 35 Sou. statutory 46 Fla. to the widow when she with reference was stated emption elects to take a child’s part. administration, inheritance, estate and suc-

Costs of to cession several classes of liabilities which the taxes are decedent, subject but not becomes decedent’-s eo The instanti death of testator.* dower statute terms widow’s share her absolutely exempted has estate one of the several husband’s from class stated only liabilities, “of the” There could namely, debts decedent. decedent, estate, for be no or liability upon his death, “death” until the decedent’s ob taxes after been vious reason that “death” could have such taxes such collected the decedent’s lifetime. Therefore during statutory within charges are of” the decedent not “debts L.,G. term as in Section 5494 C. employed use supra. de-

We Chancellor’s therefore hold that the extent to the presented prayer cree in question answer to out with fore- complaint harmony amended bill law, erroneous such final decree is statement of the going to the Chancellor be reversed with directions and should conform to the ruling to make it amend his decree as so it be incon- insofar as may opinion, of this Court the same. sistent with

The be whether certain in- question next considered is the Transportation Equipment debtedness decedent Limited, Canada, should Company recognized the said indebtedness should be wholly ig- or whether paid, as a debt owed the decedent disregarded, both nored and and as an Transportation Equipment Company asset Company. The lower Equipment Transportation the fiction of the corporate corporation, held the court paragraph requirement “Tenth” the to the effect of the *The will transfer, inheritance, succes- State Federal all expenses sion, legacy, connected with and other taxes death residuary paid estate be out the es- the administration the rendered ineffective to the widow because of her tate was against paragraph In the take the will. 4 of de- election to properly clamatory Chancellor so held. decree the 888

Transportation Equipment Company, should not dis- be the and that regarded decree court should declaratory view, be entered in with accord which was done. During his lifetime the completely decedent owned corporation name, a dominated organized him under the by Canada, Transportation Equipment Limited. Company The corporation directors of the were mere The dummies. stock, company issued shares of which shares were all at times All registered name of decedent. him, dividends were received other by holders of the qualifying shares their checks over endorsing dividend the decedent a matter of course. At the time of testa- tor’s death he had in his four possession the qualifying held by shares directors from time time. These shares were endorsed in blank the record thereof. by owners

Several years prior death to his testator purchased $245,647.08, or built the yacht sum “Shogun” which amount was by furnished Transportation Com- Canada, Limited. The testator pany of executed his note Transportation to the for this amount Company and secured it “Shogun.” a on the yacht by mortgage

After the decedent’s death the yacht ap- was sold for $72,000.00. In proximately order to transfer the title the ¡its Transportation Company executed satisfaction of mortgage written guaranty executors to save Transportation Equipment Company harmless reason satisfaction, written guaranty that the reciting paid, indebtedness had been although full payment was satisfaction, recited of mortgage.

In view of the fact that the decedent’s indebtedness was him, corporation to a owned wholly question pre- whether the indebtedness of sented the decedent Equipment Transportation Company should recognized paid or whether the said indebtedness should he wholly ignored disregarded, both as a debt owed the de- by Transportation cedent to the Equipment and as Company an of Transportation asset Equipment Company.

It is the contention of appellants that the said indebted- is, fact, ness truth in an indebtedness of the decedent to himself and that the corporate fiction should be ignored. The corporation was owned solely by the decedent for the purposes of convenience in the transaction of his business.

The indebtedness deceased in $245,- the sum of 647.08, for which testator note, had executed his secured by a on the mortgage yacht “Shogun,” to Transportation Canada, Limited, of not Equipment was a purchase money sense, nor in a had the obligation legal joined widow mortgage so to be claim estopped as her dower with re- spect to that transaction.

The evidence this case discloses that one of the execu- tors took charge and sold encum- yacht “Shogun” said therefor, bered by mortgage, receiving result a $72,000.00 the depression, but price the sales of same. If fiction corporate is to be is disregarded, the yacht $245,747.08 an of the estate asset while the ais mortgage liability the estate. At time same the widow is large stockholder in the corporation reason of her dower hand, claim. On if the corporate ig- the other fiction is nored a different will prevail. situation radically

Under the statutes Florida the widow became interested assets but not in its liabilities. There- $72,000.00 fore the consideration of brought from the sale asset an in which the yacht interest, widow has an while liability $245,- decedent’s estate for the 647.08 indebtedness secured a on mortgage yacht

890 the a residue and not which the of the

is for liability dower, responsible. of it is portion constituting the widow’s star guide the to polar intention of the testator is The proceeding of The of purpose a will. this the construction to Murphy the of Albert construe will Charles was to testator was satisfied The accordingly. order distribution Limited, Canada, Transportation of to with Company deal of death. It would do the time his corporation up a as intention of the to the obvious testator violence separate entity a which he maintained corporation, mere lifetime, a now declared be as such in his dealt with dower the statutory defeating fiction for purpose mentioned was not corporation The rights of the widow. it that would presume right in the will and testator had the it corporate purported entity be recognized separate as the con- will is as construction of testator’s to be insofar cerned. conduit, a or corporation,

The rule that business has person may disregarded ego when used his altert in a like where the intention of the no case application issue no proposition is the application testator required in that the rule is order ends essentially such met, purposes or defeated. may be fraudulent justice Co., & Ins. Co. v. Ostend Biscayne Realty Realty Compare: 1, 560; 109 Fla. Keely, 148 Sou. Co. Rep. Third Avenue v. 46, 30; 111 Rep. Fla. 146 Lincoln Sou. Hirsch v. Securities Co., 12. Rep. Fla. 160 Sou. of the Chancellor set holding forth in paragraph

So (9) decree is declaratory affirmed. next to be proposition

The discussed holding (10) declaratory decree paragraph relating principal $500,000.00 disposition ultimate spe- trust (cid:127)cial set in the sixth fund up clause of the will for benefit of primary testator’s widow during her lifetime.

The sixth clause $500,000.00 of the will bequeathed trustees to be held trust for purpose of investment paid proceeds to the beneficiaries as named It clause. that the income provided from said trust fund life, the paid should be to widow for and that the principal of the said trust fund after the of remaining enjoyment therein, the rights widow’s should be added and become part a of trust the fund the consisting of entire residuary estate, to managed trustees and the income there- by the tlje from mother paid to testator’s for life in the the event mother survived widow. the mother,

The widow did not die before the testator’s but elect the against did to take will. The widow thereby about her death brought pro constructive of the nunc tunc as prior mother, date the natural of death testator’s had who died before the widow’s election the against finally will was declared, in contemplation but of law who is the widow’s the survivor under will.

The Chancellor decided when the widow elected to take became dower she dead* as of constructively January 25, 1933, death, date the of testator’s therefore the mother, Baldwin, testator’s Elizabeth who was Jennie 1933, 25, the on living January date of the con widow’s death, and 1, structive who to live continued until June 1933, became entitled to the income from the es residuary 25, 1933, from January death, tate the date testator’s 1933, until date the mother’s death. With June part Chancellor’s there is holding little contro- constructively only having *But dead after survived the testator for length time make sufficient an election accordance with against law take the will date of the testator’s death. dis- to the further appeal, between so

versy parties, unnecessary. of it is cussion however, Will, mother, Item Six of the that if provided widow, Baldwin, Elizabeth then the survived Jennie $500,000.00 of said fund be added principal trust should become a of the trust fund part consisting entire should be residuary testator’s held will, specified in Ninth of the to be purposes paragraph disposed of in accordance with said paragraph ultimately provided also that if Ninth. But said Item Six of the Will then, upon the testator’s mother the wife did survive wife, the said remaining principal death of brother, one-half to go: (1) trust fund should testator’s forever the event said Dwight Murphy, absolutely widow; (2) have that the other brother should survived the one-half said trust fund should remaining principal to Cornell be added assigned to conveyed University Fund.” likewise to “Albert C. Said Item Six Murphy the the the to that if the intention of testator effect disclosed brother, the Murphy, did survive Dwight the testator’s re- widow, then Genetive that all of the Murphy, Theresa $500,000.00 fund, trust up as set said principal of maining Will, be- reason thereof by Six the should in Item of said University, thereby giv- said Cornell come property the the whole of said in event the fund ing University Cornell brother, the testator’s survive said lived to the widow Murphy. Dwight of the Will provided upon

Item Ninth that the death of mother, she testator (which did) if survived she testator’s fund, that trust or the residuary the of said entire principal he, might conveyed, as the case should be one-half to brother, Dwight living if at the time of Murphy, testator’s not, death, such or if then one-half the mother’s to Cornell fund to be added other one-half of such University to the that in event. had been said Cornell given any to University

The Chancellor the decided that bequest income $500,000.00 mother, trust fund to testator’s that bequest principal fund to testator’s brother, Dwight and to Murphy, University, Cornell were contingent were remainders and accelerated they widow’s election take dower because such ter- election matter, minated her precedent subject estate in the thereof, mother, reason that the estate of the Eliz- Jennie Baldwin, entitled, abeth became legatee, as a residuary $500,000.00 the income from for trust fund the period death, of time mother lived after the testator’s but death, remaindermen, Dwight said mother’s that the Murphy and Cornell named Item Nine as University Will, well as in Item Six became entitled the prin- $500,000’.00 cipal general residuary trust fund Will, subject under- Item Ninth of the con- legatees if rata as sumption legacy, necessary, pro such or be, the estate. legal charges against case might pay appellants, Both the Dwight and Cornell Uni- Murphy that since the versity, contend widow elected against the will, $500,000.00 made bequest that the to the trustees will, Item the her benefit in Sixth up should be set trust for the benefit of the general remainder- legacy at the time the widow’s election being men to take dower effective, disagree but as to the nature they became and ex- respective of said remaindermen tent of the interests so set up.

The of acceleration in principle of a vesting remain- premature der termination of the preceding life estate upon presumed testamentary rests intentions of the tes- tator. will be applied only It extent that it promotes resorted it. It is it defeats intention and never when

that and uniform have a settled must because law only cases, nevertheless in most but rule be applicable will intent when testamentary not defeat the a rule as will such terms to the contrary such intent discernible clearly is of the will itself. the scheme intention evident from plainly

The manifest University set in the testator’s will is that Cornell up should, Fund the Trust if take Dwight Murphy possible, will, unless Six of the general bequest paragraph a under mother, her, after the testator’s the testator’s wife and Baldwin, capable be alive and Elizabeth should Jennie not be arbi- intention should it. Such enjoying manifest application trarily completely destroyed thwarted nor re- to acceleration of relating of law technical rules clear, estates, is it as it life where following mainders follow result to here, intended no such the testator as distinguished constructive death mere the widow’s upon 1933, 1, occurring prior from her natural death June mother, Elizabeth Bald- testator’s date which upon Jennie interest, the wife’s volun- win, died. while So the next pre- resulted tunc pro death nunc constructive tary under paragraph life estate own her mature destruction vigore not ex proprio it should defeat of the will Six her that still may follow interests of the others ex- originally with the testator’s effect in accordance given law rights at widow’s subject only intention pressed the will. See: against to take election out of her arising 373. Rep. 93 Atl. Moore, 28 Del. Scotten v. So of death is not in fact death. equivalent The law’s in mind natural death and testator has clearly where death, legal not death’s natural legal equivalent, death’s which deemed contingency should be equivalent,

895 the testator intended his will when natural death operate, is indicated. so contingency

The Circuit holding predi- Court was evidently $500,000.00 cated passed view trust fund mother, into the residuum of the estate because the Jennie Baldwin, Elizabeth the constructive death of the survived will, widow occasioned her election to dissent from the and that therefore a life estate rested in Elizabeth Jennie (the Baldwin from 1933 date of the testator’s January, actual death and of the constructive until death) widow’s 1933, June, the date testator’s actual death of the mother, Elizabeth Baldwin. Jennie

The rule that the election of a widow take against her deceased will husband’s has the effect of accelerating interests, of remainder vesting is a rule to be ob- primarily served in the of effecting interest early settlements es- tates. But all like other rules relating to the construction wills, it not it an rule arbitrary of construction must be followed in case without every exception. On the con- it, trary, like all other accepted rules the con- generally wills, struction of yields to the manifest intention of the testator when such intention discernible plainly is from the will to contrary application the rule’s in a particular Redfearn, instance. Wills and Administration of Estates Florida, 222; Wallace, page 844, Wallace v. 118 Fla. 377; Rep. 160 Sorrels 657, Sou. v. McNally, 89 Fla. 105 Sou. 106. Rep. Compare: Lowrimore v. First & Savings Co., 740, Trust 102 140 887, Fla. Sou. Rep. 891. Sell also: Estate, 503, In re Portuondo’s 185 Pa. St. 39 Atl. Rep. 1105; Estate, In Pa. St. Vance’s re: 141. Rep. Atl. 643.

Neither the rule is election of the- widow to take the will to her death equivalent an against inflexible one applied purposes.

to be for all The principle:is well settled that the law is when are different there other trusts in a widow, will the to, besides those for it is de- necessary part from the rule of presumptive death of the widow by reason will,-in of her election against to take order to out superior or manifest intent carry of the testator that would otherwise be The defeated. object case every where rules of construction are resorted to will cases is not to a distribution produce which the court think may n or more equal equitable, approximate but to as as closely possible to scheme of the testator which has failed by reason rights or circumstances. intervening Hence the regular order will departed never be from except neces- sity and then to extent only requires. that necessity

Thus, while the testator’s disposition intended of his es tate bemay with interfered anby election of the widow that in its result is to be treated equivalent as to her death for purposes, most the Court is nevertheless under a duty carry out the testator’s will as as possible in nearly all other respects not h>treat the widow as dead naturally when with a dealing bequest was obviously intended to com death, prehend natural rather than death, constructive widow, a predicate for its alternative disposition in short, In the will. the widow may be considered for all purposes to have died at the moment death of the testator when she elects to take dower against will, if the intention of the testator as discernible from the will itself is that other up trusts set in the will besides those for are contingent widow for their ultimate disposition only contingency of the natural death of the widow with reference to the testator’s intended disposition as made will. In Portuondo’s re: Estate (supra), 39 Atl. 1105. Rep. will itself think it evidence from is

We $500,000.00 for Fund of aside a Trust meant set testator life, dispose right with a wife for beneficial use of his elected, other- but if she so $200,000.00 it her will death, tes- to the at the wife’s go, sum to the entire wise life, Baldwin, mother, living, if Elizabeth tator’s Jennie Dwight Murphy. to Cornell University remainder with the will here involved respect Our conclusion with $500,000.00 specified trust fund will the under the despite the up been set having Item Six regarded must be will, the which against take dower as widow’s election to be subserved trust required the initial election defeats trust fund. by said the that the from said opinion further of income

We are the executor of the estate of trust became payable fund Baldwin, mother, from the Elizabeth the testator’s Jennie date of tes- the death to the of death up testator’s date 1933; date of mother on tator’s June mother, of the the principal death testator’s said of Item $500,000.00 terms specific trust fund passed by of said Paragraph the Ninth the Will and under Six of Will; general bequest it did it as a passed that when pass Nine Item described to the trust fund residuary amount, $500,000.00 (less principal and that said Will general other it with ratably contribute if as must any, widow’s'dower) thereupon should toward the legacies divided; has not died (who Dwight Murphy one-half to life) termination widow’s natural of the before in accordance testator’s with University to Cornell one-half enjoy beneficiaries should these two intent that manifest part it on the interest in the cessation of fund after such mother, this disregarding the testator’s wife and rules of con- technical merely of any application purpose an predicated upon struction of the hypothesis presumed, natural, but not death of the widow occasioned her declaration of an election take dower made her after the circumstance of the testator’s death had oc- mother’s curred.

Paragraph (1) of the Circuit Court’s decree declaratory reversed with accordingly directions to reform same with accord the law of this case as opinion decided this and to decree distribution to be made accordingly.

The Circuit Court held that where an decreed estate widow, personal consists entirely property, upon her election to will, take dower as her against husband’s is en- titled to óne-half of gross estate existed at the as it date deceased, death of the together with mesne profits on her dower portion of estate to date up of the assign- her, ment and of her dower there delivery no chil- being dren and lineal no descendants of the deceased. That hold- we ing affirm on authority statute law of State.

We likewise affirm same, without detailed discussion the decree holdings and of the Chancellor to the effect that widow, (1) dower, the having elected to take the dower of estate, in her' the widow husband’s has priority over any specified or general bequests contained in her husband’s will; (2) the election of widow to take dower as against her will husband’s inoperative makes the provisions of benefit, the will for the widow’s but does not all nullify will, of provisions the of the nor otherwise affect pro- the of the visions will as the portion the of testator’s estate left after the widow’s dower has been set apart; (3) that the order priority among other beneficiaries in will remain as though the widow not had elected to take dower; that the (4) legacies will residuary be consumed against of the legal charges first in the payment residuum, sufficient funds in the but if there should law abatement and general as to the rules shall then that the renunciation specific (5) legacies apply; her will and her to take widow of husband’s election her deprive right compensation her of dower does not executrix administration her hus- for in the acting testator, Albert Mur- band’s estate and that Charles (6) Florida, in time Dade at the phy, County, was domiciled in his estate shall be January, death and his applicable in accordance laws administered with time of Florida in at the death. State of force testator’s mentioned, particulars And in ail other not herein specifically decree, final modified accord with being after forth, is opinion of this as hereinbefore set holdings also affirmed. re- appealed reversed in and part

The decree from is with and appropriate manded for amendment directions modification said decree not inconsistent with the opinion o£ of the Supreme premises Court in the herein considered opinion, as set in of this decided forth this the costs whole appeal apportioned cause to be in the final in manner shall decree such as the Chancellor deem equitable involved parties to the several interests proportion raised deter- required of record to be questions benefit of such respective mined controversy parties. with part

Reversed and remanded directions. Whitfield, Terrell, Buford, J.,C. Brown J., concur. J.

Ellis, P. J., participating.

900 will has been interpreted Curiam. —The so as

Per the intent of the testator ascertained (as by effectuate provisions will), of all due consideration court can as the ascertained intent be made insofar testamentary rights effective without dower violating statutory provisions law. or the controlling widow provides The defines dower in personalty and statute others, that “claim have all precedence dower shall over such shall be free from all said share for liability 5494 debts of the decedent.” Sec. C. G. Thus (3630) L. a “claim” the statute refers to dower as as a “share.” estate tax or share in the upon “any legacy The distribution estate,” L., in- (19) Supp. Sec. C. G. her “the dower of a widow who has dissented from cludes Usher, deceased husband’s will.” See Henderson v. decided at term.

The holding expense this case of administration decedent’s after estate death to the prior his allotment be paid of dower should from the gross not warrant an assumption suggested petition does rehearing, expenses that all may be incurred in litigation unduly executors hinders or delays widow, allotment of dower to the should paid from assets estate before dower is allotted. denied.

Rehearing J., Whitfield, J., C. Davis, and Brown and concur. J. J., ,concur Ellis, P. Terrell, Buford, J. J. the opinion and judgment.

Case Details

Case Name: Murphy v. Murphy

Court Name: Supreme Court of Florida

Date Published: Oct 26, 1936

Citation: 170 So. 856

Court Abbreviation: Fla.