19 Fla. 778 | Fla. | 1883
delivered the opinion of the court:
On the 20th day of April, 1882, John P.. Matherson, as executor of the last will and testament of Mary Hinson, deceased, filed his bill in chancery against Jonah Woodberry as executor of the last will and testament of A. W. Hin
To this bill the defendant by his counsel demurred upon the ground that the said complainant “ has not by his said bill made such a case as entitles him in a court of equity to any discovery from this defendant, or to any relief against him.”
The Chancellor overruled the demurrer on the 8th day of September, A. D. 1882, and the defendant brings the case into this court by appeal.
The petition of appeal assigns for error that the decree overruling the demurrer is erroneous in holding that under the statutes of this State, in such cases made and provided, the widow of A. W. Hinson on his death became entitled to one-third part in fee simple of his personal estate, and that she had the right to dispose of the same by will or otherwise, although the proceedings instituted by her to have it set aside and allotted to her were not consummated before her death.
There is no objection to the forum in which this action is brought, and the only question presented for adjudication is, whether, when the wife survives the husband, and becomes entitled to dower in his real and personal estate, but dies before it is allotted and set apart to her, her personal representative can sustain an action against the personal representative of her husband, to have the dower in such husband’s personal estate set apart to him. Dower in its technical and popular acceptation refers exclusively to real estate, and according to Blackstone has reference to that portion of the lands or tenements of a man which his
The second section of the same act provides, “ that when a husband shall die intestate, or shall make his last will and testament, and not make provision for his wife as expressed in the first section of this act, she shall be entitled to a share in the personal estate in the following manner, to-wit: If there be no children, or if there be but one child, in that case she shall be entitled to one half, but if there be more than one child, in that case she shall be entitled to one-third part in fee simple, except slaves, in which she shall have a life estate, and such claim shall have preference over all other's.”
The act of February 8, 1838, amending an act “ concerning dower,” isas follows: Section 1. Be it enacted, &c., “ That in all cases in which the widow of a deceased person may be entitled to dower, under the statute of which this is an amendment, she shall make her election either of dower or of a child’s part, within twelve months after the probate of the will or granting letters of administration, or shall be confined to her dower.”
In the case at bar the dissent from the provisions of the will was filed in pursuance of the statute and the widow elected to have and take dower in the real and personal estate, her husband having two living children at the time of his death by a former wife. This court in the case of Smith and Wife vs. Hines, Adm’r, 10 Fla., 258, have determined that the widow can take dower under the above cited-laws in the personal property left by her deceased husband. In that case the court says: “A right to dower is an interest contingent during the life of the husband, but rendered absolute by his death. How, our statute having extended dower to personal estate, she has the same inchoate estate in personal property that she has in real, excepting in personal estate it is not pi’ovided that she shall have it in that which he had before conveyed, as in lands; but, in the third section, providing the manner of proceeding to have dower set apart, it is stated that the sheriff and commissioners “ shall also at the same time gllot and set off to such widow her portion of the personal estate of which her husband died possessed. Erom this view it follows that the right of' dower in personal property in this State is an inchoate interest, contingent during the life of the husband, but rendered absolute by his death. The right is of double contingency, viz: he may before death sell or give it away, and she may not survive him.” Again the court says: “ The late Court of Appeals, in the case of Ellis and Wife
The right to dower in the husband’s real estate contemplates that one-third part of such real estate of which the husband died seised and possessed, &c., should be allotted and set off to the widow, such third part to inure to the widow, such third part to inure to her proper use and be-hoof in and during the term of her natm-al life. The right of dower in the personal property of the husband, if there be more than one child, contemplates that one-third part of such personal property as her husband shall have died possessed of shall be allotted and set off to such widow, and shall “ inure to such widow, her heirs, executors, administrators and assigns forever.”
It is argued by the counsel for the appellant that the widow’s right to dower in the personalty is extinguished by her death, as no allotment of the lands could be made to her, our statute requiring that the personal property shall be set off to her, when the allotment of the real estate is made. This can hardly be the true interpretation of the statute, as it, in Section 2 of the Law of 1828, provides in reference to personal estate, “ if there be no children, or if there be but one child, in that case she shall be entitled to one-half, but if there be more than one child in that case she shall be entitled to one-third in fee simple.” In Section 2, Laws 1838, it is provided that “ if she takes a child’s part she shall have, in the property set apart to her, a fee simple in the real property, and an absolute title to the personal property, including slaves, with power to control or dis
The fact, that by her death, her right of dower in the real estate of which her husband died seised and possessed is abated, in no way affects her right to her interest in the personal property; and although the law provides that the commissioners who allotted and set off the real estate to her (in case the same had been done) should also set off to her her portion of the personal estate, yet, the fact that no such allotment was made does not deprive her of her interest in, or right to such property.
Section first, of the law of 1828, provides that the widow shall be entitled to dower in the following manner, to-wit: “ One-third part of all the lands, tenements and hereditaments of which her husband died seised and possessed, or had before conveyed, whereof said widow had not relinquished her right of dower as heretofore provided for by
The second section provides: “ If there be more than one child, she shall be entitled to one-third part of the personal estate in fee simple.”
The law of 1838 makes the distinction between the widow’s dower and a child’s part. If she elects under that law to take a child’s part, “ she shall have in the property set apart to her a fee simple in the real property and an absolute title to the personal property.”
Under the law and the previous decisions of this court, holding that the right of dower extends to title in personal property, the decree of the chancellor is affirmed.