Bushnell v. Dennison , 13 Fla. 77 ( 1869 )

RAEDALL, C. J.,

delivered the opinion of the Court.

The facts are briefly thus : Joseph Forsyth died leaving a widow and three children, to-wit: Isabella, Josephine and Mary. The widow, (mother of the three children,) afterwards married one Dennison, and had one child, William Dennison, the appellee. The mother died, and afterwards Isabella, leaving her two sisters of the whole blood and her brother of the half blood surviving. The bill in this case was filed by the said William Dennison per pro ami, to recover one-fifth of the personal estate of Isabella, which had been derived from her father, Joseph Forsyth. The administrator of Isabella filed a demurrer to the bill which was overruled by the Circuit Court, and from this ruling an appeal was taken by the administrator.

The question presented involves the determination of the rule for the distribution of the personal estate derived from the father of an infant dying without issue.

The history of the legislation affecting the question, is given in the opinion of the Court in Jones vs. Dexter, 8 Fla., 276.

In 1822, at the first session of the Territorial legislature, an act was passed known as the act regulating descents.— This act continued in force until the year 1828, when it was re-enacted by the statute known as the “ condensation' act.” That condensation act expressly repealed, all acts theretofore passed, which should not be enumerated in it, and expressly re-enacted all such as should Ide so enumerated by their respective titles. Amongst the acts so enumerated was this act of 1822. At the same session in 1828, an act was passed directing the mode in which personal property should be distributed. The provision of that act is as follows : “ That after all debts and legacies have been paid, the property remaining in the hands of the executor or administrator shall be distributed according to the law regulating descents.”

At the next session of the Legislature, in 1829,-a new act to regulate descents was ^passed and the old act on that subject was repealed. The new act embodied substantially the provisions of the old act, but contained as provisos two additional sections.

The provisos enacted, “ 10th, That whenever an infant shall die without issue, having title to any real estate of inheritance derived by gift, devise or descent from the father, and there be living at the time of his death his father, or any brother or sister of such infant on the part of the father or paternal grand-father or grand-mother of the infant,” &c., then such estate shall pass to the paternal kindred, without regard to the mother or other maternal kindred, “ saving, however, to such mother any right of dower which she may have in such real estate of inheritance.”

The 11th subdivision being the second proviso, declares that the real estate of an infant derived from its mother, in case of its dying without issue, shall descend and pass to the mother and maternal kindred without regard to the father or other paternal kindred, “ saving, however, to such father the right which he may have as tenant by the courtesy in the said estate of inheritance.”

These statutes are, as to their legal effect, substantially the same as those of Virginia, which received a construction by the Virginia Court of Appeals in 1801, and again in 1810. That construction was that the statute of distribution, requiring the personal estate of deceased persons to be distributed according to the law regulating descents, gave the personal estate of an infant deceased without issue, to the paternal kindred, if the estate was derived from the father to the exclusion of the mother and the maternal kindred ; and to the maternal kindred if the estate was derived from the mother, to the exclusion of the paternal kindred; in fact giving the personal estate the same direction as the real. 1 am unable to discover on examination of the statute of Virginia any such substantial difference as to its effect in this case, or in the case of Jones vs. Dexter, as was perceived by the majority of the Court in that case. Our statute, if not borrowed from that of Virginia, must have been copied or derived from the same source.

The Court of Appeals of that State in 1801, when the case of Tomlinson vs. Dilliard (3 Call, 105,) was first considered, was composed of five judges, four of whom concurred in the construction stated, and one, (Judge Roane,) dissented, holding that the personal estate of an infant should be distributed under the statute according to the general law of descents, and that the proviso controlled only the course of the real estate.

In 1810 the same case came again before the same court, then composed of three judges, two of whom were members of the court in 1801. The opinion of Judge Roane upon the last argument (in 1810) was very able and elaborate, reiterating his former conclusions. (1 Munford, 183.) While his associate, Fleming, then become president of the court, and Judge Tucker, who had not participated in the former decision, re-affirmed the judgment first given, considering “ that the words of the law are too plain and positive to admit of doubt or construction,” and “ too clear and explicit to admit of a doubtful meaning.” (See also Tarpleman vs. Steptoe, 2 Munf. 389.) The statute of Virginia provided that the personalty should “ be distributed in the same proportion and to the same persons as lands are directed to descend in and by an act of the General Assembly, entitled an act to reduce into one the several acts directing the course of descents.” The statute of Florida says “ the property remaining in the hands of the executor or administrator shall be distributed according to the provisions of the law regulating descents.” The law “ regulating descents ” in both States being, substantially alike, I can discover no difference in the application of the law of distribution. The words, “ distributed in the same proportion and to the same persons,” in the one case, and the words “ according to the provisions of” the same law, are so nearly alike in their evident intent, that I have been unable-to discover any reason for applying them to diverse provisions.

The Virginia Judges were evidently desirous of giving a different construction to their statute, and would have done so if they could have discovered any “ manifest intention” of the Legislature to justify a departure from a plain and positive provision of the law; for it seems they were so thoroughly opposed to the law, as they felt obliged to construe and apply it, that they besought the legislature to change it, and it was changed in accordance with their suggestion.

Very many of the prominent men who were the pioneers and early settlers in this portion of the country came from Virginia, and it was natural that they should bring with them a partiality for many of the laws of their native State, and that the laws relating to the descent of property were among those to which they attached great importance is beyond question. It is equally certain that the Legislature, composed of intelligent gentlemen, in adopting a statute of another State, are presumed to know the effect and the interpretation given to such law by the courts of the State from which the law was borrowed, and particularly of this important law which had been construed by the Court of Appeals, and whose decision must have been known quite familiarly to gentlemen of the legal profession, many of whom came to Florida from the “ Old Dominion.” These circumstances have more or less bearing in finding the intent of a statute, and are frequently considered by the highest courts in their constant endeavors to carry out the purposes of law makers. “ Oontemporcmea exjpositio est fortissimo m lege? ■

It is therefore quite probable that it was intended that the language of a Virginia law enacted, here, should have the same force and meaning in Florida as in Virginia, and that the interpretation it had received in Virginia would be given to it in this State. Such seems to have been the ease. Judge Thompson has this note on p. 191 of the Digest : “ In the case of Marr et al. vs. Keenan, before the Hon. Thomas Douglass, in Gadsden county, Fall Term, 1845, it was ruled that the ‘ law regulating descents’ referred to (in the section providing for distribution of personalty,) was such law regulating descents as might be in force when the contingency happened. That the Legislature intended that real and personal estate should be distributed according to the same rule.” Judge Douglass afterward in 1854, as a Judge of the Supreme Court, in the case of Young’s adm’r vs. KcKinnie’s adm’r, 5 Fla., 542, giving the opinion of the Court, held that the surviving brother of an infant took all the personal estate of the deceased which was derived from the father, the mother not being entitled to inherit. It ife true it does not appear that the question was argued in reference to the question now before us, but the court in that ease affirmed the decree in that respect, which decree treated the property as that of the surviving brother “ without regard to the mother” who survived.

It may be said that this decision was not entitled to much weight as authority, but it was a solemn adjudication of the rights of property upon principles of law which appear to have been treated as settled and unquestioned, so far as can be judged by the published report of the case, (and it is remarked, by the way, that one of the counsel for the appellant in that case is of counsel in this case, and the Justice who-delivered the opinion in Jones vs. Dexter was of counsel on the other side.)

It is stated in the dissenting opinion of Baltzell, C. J., in Jones vs. Dexter, that for thirty years before (1859,) “ by common consent of lawyers, judges and people, this had been the settled construction, and estates during all this time had been settled and adjusted and rights derived and acquired under it. Our digests and compilations have been on this understanding. These same objections, scarcely varying in language or form of expression,' were stated by •one of the justices of the court of Appeals of Yirginia, and •earnestly insisted on, but overruled by four, of his associates, .and again urged on other occasions and overruled upon statutes almost identical with ours.” And he quotes Eeeves on Descents, 26 : “ Where a statute is in the terms of the law of another State, or of an English statute, the construe-' tion of their courts is to be regarded as much so as if it had been detailed at length in the statute.”

In the case at bar, the circuit judge decided, in overruling the demurrer, in accordance with the judgment in Jones vs. Dexter, that the provisos (numbered 10 and 11,) applied only to the real, and that the personal estate was distributable according to the law, excluding the provisos. The appellants ask that the doctrine of the decision in that case be overruled. The appellees insist that that decision was correct, and that the rule in that case has been the law of the State for eleven years, as a rule of property, and has controlled the settlement of estates. That in construing statutes, the office of the court is to give-certainty and precision to arbitrary rules, and hence the rarity of conflicting decisions upon statutes. “ That after a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration of the law and to regulate their actions and contracts by it.” “ When a rule has been once deliberately adopted and declared, it ought not to be disturbed unless by a court of appeals, and never by the same court, except for very cogent reasons and upon a clear manifestation of error.”

“ But even in such cases, (says Broom’s Legal Maxims, 62,) the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. Eor, if it be found that the former decision is manifestly absurd or tmjtisf, it is declared, not that such sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.”

In the opinion in Jones vs. Dexter, the court was not unmindful of the great importance of adhering to former decisions in cases of this character, and of the cautions suggested as to the unsettling of estates, “ but we are yet to be satisfied (say the court) that such would be the effect of this ruling; for considering the brevity of our political existence and the extreme rarity of estates thus derived, there cannot, in the nature of things, be much cause for misapprehension on that score. At any rate, it is the imperative duty of this court to announce the law as it .is, and not to be deterred from its duty by considerations so remote and uncertain.”

Impressed with the importance of abstaining from an unwarrantable departure from the unbroken current of decisions of the courts in respect to those rules of property and common rights under which and .upon the strength of which rest the security of all the business transactions of life, we hesitate upon the threshhold of inquiry and first determine whether, whatever our private notions and individual judgment may be, we shall entertain the inquiry which is presented in this appeal; for, if it be apparent that wrongs may be inflicted upon the community by the unsettling of the tenures of property and the rules for the settlement of estates by the judicial abrogation of a rule which we may conceive to be against law, and which more than counterbalance the justice of the application of what we conceive to be a correct and true application of the law, it may be considered our duty to adhere to the error. It was once said that it were better to adhere to an old error than to promulgate the truth, but we cannot understand that we are instructed by the sages that this is good law or sound philosophy. If one be deprived-of that which he is plainly entitled to by an adhesion to arbitrary rules of convenience, based upon sage precepts which have become venerable without pretence of having foundation in justice or correct expositions of written law, we do but sacrifice the rights of the innocent for the sake of maintaining an error and protecting a right of a third person which has no foundation but in wrong and in the perversion of the law. If a party establish a right to the satisfaction of our judgment and conscience, and has not lost that right by his own conduct -or laches, must we deny its enjoyment to him because it has been an uniform practice of courts, in this or some other age, to deny such rights to others ?

Eeferring to the case before this court, we are not driven even to the resort of announcing new doctrines or upsetting the long current of judicial dicta, if we shall come to a con■clusion other than that found in Jones vs. Dexter; for against that decision we find this question otherwise determined seventy years ago in that State, which, at the time mentioned, had produced statesmen and legal philosophers •second to none in any country. Next, for thirty years, down to 1859, the same rule was observed and the words of the law were given the same meaning in Florida that they had borne elsewhere. And we may feel that we are guilty of no serious innovation upon a rule of property or propriety if we declare our convictions that a rule of ten years’ standing may be revoked, and that a contrary rule should prevail which we are satisfied is correct and which has been .approved for seventy years by the judicial mind of the .country, without apprehending that a long train of 'serious .consequences will follow the declaration.

It is an established rule of construction that an act of Parliament shall be read according to the ordinary and grammatical sense of the words, unless, being so read, it would be absurd or inconsistent with the declared intention to be collected from the rest of the act, or unless an uniform series of decisions have already established a particular construction. (Broom’s Maxims, 248.)

The law regulating descents, as it stood in 1828, (when the act providing for the distribution of personal estate was passed,) provided that whenever any person, having title to real estate of inheritance, shall- die intestate as to such estate, it shall descend in parcenary to the male and female kindred in the following course, that is to say : 1, to his children or their descendants, if any; 2, if there be no children nor their descendants, then to his father; 3, if there be no father, then to his mother, brothers and sisters and their descendants ; 4, if there be no brother nor sister nor their descendants, the inheritance shall be divided into moieties, one of which shall go to the paternal, the other to the maternal kindred, &c.

The act of 1829 embraced and re-enacted these provisions, and the provisos, being paragraphs 10 and 11, were added to and incorporated in it as a part of the law regulating descents, and all laws not coming within the purview of this act were repealed. It is conceded that the “ law regulating descents,” mentioned in the act for distribution, is such law as may be in force when the contingency occurs, and such was the view of the court in Jones vs. Dexter.

' The rules for construing statutes, quoted in that case, are the true guides in endeavoring to ascertain the intent of the Legislature, and to solve questions of doubt, and we shall be guided by them. It is upon the application of those rules to the matter in question that we are forced to differ, with all deference, with the majority of the court in that case.

There is also a primary rule very proper to be observed in reference to legislative acts, which is, that the true meaning of a statute is generally to be sought from the body of' the act itself; that the intention of the law-maker is to be deduced from the whole and every part of a statute. And-when the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view-Several acts' or provisions in pari materia, and relating to the same subject, are to be taken together and compared in the construction of them, because they are considered as having one object in vew.

Before the enactment of tl^e provisos, the property, real and personal, of every person, whether an adult or an infant, dying intestate, was, by the statute, distributable according to the course last above quoted, that is: first, to children; second, if there be no children to the father; third, if there be no father then to the mother, brothers and sisters; fourth, for want of these, the inheritance to be divided into moieties, and one-half to go to the paternal and other half to the maternal kindred, &c. The rule was changed by the law of 1829, so that the real estate of a class of persons, viz: infants, should go to the paternal or maternal kindred, according to the source from which it was derived, saving the rights of dower and tenancy by the courtesy, as the ease might be. The presumption is, that the Legislature which enacted this proviso was cognizant of the law as it stood before, and of the effect of the remedy they then proposed; that they knew that the law already provided that the personalty should be “distributed according to the provisions of the law regulating descentsand it is certain that the “ law regulating the descent ” of the real property of an infant was, by the proviso, to go in a direction other than the property of an adult. With the statutes before them, and with the construction and application that had been given by the courts of the State whence the law was .derived also before them, it is not to be doubted that if they had intended that the personal property of infants should not.go to the same persons as the real property, they would have said so in plain words, instead of leaving the plain words, already written, to stand against such intention.

But it is urged that' “ the nature of the property, and the title by which-it is held, to say nothing of the inapplicability of the saving clauses in those provisos, show that it could not have been the design of the Legislature that they should apply to personal property.”

It seems to us not difficult to imagine that personal estate, whether in specific property or in dollars, may be bequeathed or directed in general terms to be distributed according to the rule provided in a will for the disposition of real estate, whether according to the proportions or the persons to whom it may be devised. What is there in the nature of personal property that is repugnant to such a disposition of it ? What is there in the origin of the title of personal property which prevents its distribution by the same rule ? Is it impracticable to bequeath (and to execute the bequest,) that certain personal property derived from John Doe shall go to one person, and that derived from Richard Roe shall go to another person ? And if an executor or a guardian shall have suffered such property to be intermingled with other property, so that its identity cannot be easily ascertained, should that defeat the wish of the testator ? Is there no means by which the value in such case may be ascertained? By what law may a guardian suffer the property of an infant derived from different sources, to be so lost in identity that a bequest by a testator of property to an infant and to a third person, in case of the death of the infant, may be defeated, and such third party thereby deprived of a remedy ? Or, if the guardian shall have properly performed his trust, and the property' may be distinguished, what will prevent the execution ' of the bequest ? If the identity of the personal property of an infant be lost by carelessness or by confusion, somebody should bé accountable for it. That personal estate derived from different sources may be so confused as that its subsequent identity may be difficult, it doe's not therefore follów.'that it' should be so.

But, it is said, that the “saving clauses” in the provisos are inapplicable, and therefore the provisos cannot apply to the personal estate. The real estate of the infant derived from the father, by the provisos, goes to the paternal kindred to the exclusion of the maternal kindred, saving the right of dower to the mother of the infant. This saving clause of course applies to real property, and does not apply to personal; and if it does not affect the personal estate, how can there be any difficulty in distributing the personalty to the same persons as are entitled to the realty, though the realty be encumbered by dower interests, or leases, or mortgages, or other determinable estates ? It is rather the inapplicability of the provision for dower in relation to personal estate that must be rejected in the distribution, rather than reject the provision for distribution, because of the provision for dower in real estate. The provision relating to dower was probably unnecessary, as the widow is entitled to dower at all events, and that provision might have been wholly omitted without affecting the widow’s right, as it was omitted in the law of descents generally. What becomes then, of the objection that the clause saving the dower because of its inapplicability in distributing personal estate, is incompatible with the distribution act, and that, therefore, the personal property cannot be distributed under the provisos ? As well may it be said it cannot be divided' at all in accordance with “ the law regulating descents,” because under that law the widow is entitled to dower in the property to which it refers, and the “ saving clauses ” are no more necessary in the one law than in the other for the protection of her interests.

Another objection to the application of the act of distribution is, that it may work unjustly, in that the property-derived by the infant “ by descent from the father,” may-have been derived by the father from the dowry of the wife by the marriage according to the common law, and therefore, the exclusion of the mother from taking such property is pernicious, and could not have been intended by the Legislature without presuming that they were ignorant of the canons of the common iaw, which ¡give all the wife’s personal property to the husband. Even if such objection might properly be urged against a legislative enactment, and the courts refuse to give it effect because oí' the apparent or possible injustice of its enforcement, and because it may not be il consonant with the best affections of the heart,” or commend itself to the general approval of mankind, it can have no force in this State at the present time, for since A. D. 1845, all the property oí a woman acquired before or after marriage is her separate estate, the husband having no interest in it during coverture, except in the character of a trustee or a tenant.

But this objection to the injustice of the law in the respect mentioned, was equally potent against the rule of the common law, which deprived a married woman of all her personal property and all control over her real estate; and if it be the province of the courts to nullity laws, because of the injustice and hardship of their application, there has been for centuries ample opportunity for the fulmination of the judicial thunder against ibis most, unnatural, unjust and oppressive law, handed down through the progress of civilization, almost intact, from the confines of barbarism.

This argument, however, we conceive to be appropriate to be addressed rather to the Legislature than to the judicial department. Tin1 court, of Virginia, after pronouncing its judgment in obedience to-a hard statute, eat mero moin, besought. the Legislature to change the law, and it was done. The argument springs from the kindliest affection, and ad_ dresses itself to our humanity. "We cannot conceive why the mother, who has spent her. youth and strength in a labor of love and devotion to her child, should, after burying it from her sight in its narrow house, he turned from her home beggared, “ according to. law,” with neither the consolation nor compensation of sharing in the property of her dead child, even though the property may have been brought home by ' herself, or earned by the joint labors of herself and her hus- ’ band. And there may be injustice in the other course of the ' law of descents. One of two children who have inherited a fortune in money and goods, oí plate and family pictures, and mementoes from their father, dies, leaving several brothers.' and sisters of the half blood, the children of the mother’s sec- ‘ ond marriage. By the law of descents, without the “proviso,” the surviving child most divide the patrimony with the children of a stranger to his father’s house and name, and ' surrender to them or purchase from thorn the property and family jewels earned and acquired by the labor of his owa. ancestors, and thus become impoverished and beggared upon principles of “ natural affection,” and according to the'^ statutes. And again, if the mother take by right oí inher-' itanco the personal estate of the child, which was derived" from Iris paternal ancestors, and the mother happen to be-- ¡ come the wife of another, by tlie rules of the common law ' the property inherited becomes, upon the marriage, the property of the second husband, and so, practically, the second husband becomes the heir of the child of another, through those same principles of natural affection which are invoked to control the application of this statute.

But the courts aro not responsible for the language of the ' written law, and are not accustomed to explore the fields of * romance in quest of rules for their guidance in construing ’ statutes or applying the law. Persons who become possessed . of considerable property generally dispose of it by will, and', if they neglect so to dispose of it, or if they are from infancy' or other causes incapable of disposing by will, the law, after . their death, regulates and directs the manner of its disposisition and distribution, and so the law makes a will for the' intestate. We do not think that a last will and testament directing the course of personal property according to the rule prescribed by the provisos in question, would he set aside because of the supposed inapplicability of the saving clauses or that it would be found impossible or impracticable to carry out the intention of the testator, and this being the case, we cannot allow a possible inconvenience to control, and so disregard the positive provisions of the statute.

In this case, the mother of Isabella Eorsvth died before the death of Isabella, so that with respect to the natural claims of the mother no argument can be attempted. The question is, whether the sisters Josephine and Mary are entitled to the property of Isabella, which came to her from her father, or whether they must divide it with the half brother, William Dennison. The common law of England would give the property to heirs of the whole blood, disregarding those of the half-blood. Many, and probably most of the States of this country give certain portions of the estate, if there be no direct heirs, to kindred of the half-blood, and this is the law here, but the provisos in question give the property of infants, derived from their father, to the kindred of the father only, and except that the mother ought not in justice to be excluded, we cannot say that the law so understood should be changed.

We think the property of Isabella derived from her father, descended, (under the statute of distribution and the provisos which are parcel of the law regulating descents,) to her sisters of the whole blood, and believing that upon the death of Isabella the property vested in the sisters, we cannot, with only the single and recent case of Jones vs. Dexter before us upon the one side, and the older adjudicated cases and the uniform rule of those cases adopted and followed in this State up to the time of the decision in Jones vs. Dexter, affirm a decree that the sisters shall be deprived of any portion of the property which we believe belongs under the law to them. Had the doctrine of the latter case been so long acquiesced in and followed as'to become such a rule of property, that any considerable mischiefs would follow the reversal of that rule, we should be inclined reluctantly to acquiesce in it and consent to the sacrifice of the strict rights of these appellants “ for the public good;” but as we do not feel obliged to adopt the rule in that case, we are not embarrassed in deciding that the order of the Circuit Judge overruling the demurrer should be reversed. .