47 Fla. 200 | Fla. | 1904
(after stating the facts). On rehearing. — Various errors are assigned relative to the admission and rejection of evidence, but we deem them unimportant, and will proceed at once to a discussion of the merits of the real question at issue between the parties, basing the discussion upon the propriety of the affirmative charge given by the court to the jury, instructing them under the facts in the case, as stated above, to find the right of possession and property in the plaintiff.
To sustain this charge and the judgment consequent thereon it is earnestly contended here for the defendant in error that the whole question is irrevocably settled by the decision of this'court in the case of Wilson v. Fridenburg, reported in 19 Fla. 461, 20 Fla. 359 and 21 Fla. 386. That case in its several appearances before this court involved a construction of, and was planted upon a construction of, the homestead provisions of the constitution of 1868, and in the opinion, 19 Fla. 461, text 466, it is expressly said that “there is no provision in our constitution giving a widow any right of homestead. Her right is as wife, and is confined to a power to prevent any alienation by the husband without the joint consent of his wife, and the exemption as homestead in the language of the constitution accrues to the heirs of the party having enjoyed or taken the benefit of such exemption. As against such heirs, or as against any creditor of a deceased husband, she has no homestead right simply because the constitution does not in any way give it, unless she is an heir, and in this case she is not an heir under the statute, which in certain events makes her so. Her right here is confined to the general laws giving rights to widows, because such laws are not inconsistent with the exemption which accrues to the heirs. * * * But there is here a testamentary disposition of the whole estate of the
By virtue of what provision in the homestead article of the constitution of 1868 was this conclusion arrived at, that it was beyond the power of the testator to dispose of his ■homestead by will in so far as the heirs at law were concerned? It was by virtue of section 3 of that Article IX which provided that “the exemptions provided for in sections 1 and 2 of this Article shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption.”
Within a few months after the Wilson v. Fridenburg case was last decided in this court in March, 1885, as reported in 21 Fla. 386, the constitutional convention of 1885 assembled, and in revising the homestead article of the former constitution of 1868 it made several material changes jn the former instrument. Instead of making the exemptions provided for accrue alone to the heirs of the party entitled to such exemption, as did the constitution of 1868, the constitution of 1885 in section 2 of Article X provides that “the exemptions provided for in section one shall inure to the widow and heirs of the party entitled to such exemp
It follows from what has been said that the court below erred in giving the affirmative charge in the plaintiff’s favor, and in permitting the judgment entered for the defendant’s ejectment from the premises and for mesne profits. Section 1834-, Revised Statutes, entitles the widow to retain full possession of the dwelling house in which her husband most usually dwelt next before his death free from molestation or rent- until she shall have her dower assigned her, and the statute furnishes ample remedy for the heir to initiate proceedings for the allotment to her of her dower.
For the reasons stated the judgment of the court below is reversed and the cause remanded for such proceedings as shall not be inconsistent with this opinion, the defendant in error to be taxed with the costs of this appellate proceeding.
Carter, Shackleford, Hocker, Maxwell and Cockrell, JJ-, concur.