Benedict v. Wilmarth , 46 Fla. 535 ( 1903 )

Hocker, J.

(after stating the facts). — We think that the following questions are presented to us by this record: 1st. Did Mary E. Benedict by qualifying as executrix of her husband’s will, and b}r uniting with the coexecutor in foreclosing several mortgages of the estate, and by buying in the property for the use of the estate, thereby elect the provisions made for her in the will, and was she thereby es-topped from afterwards dissenting from the will, and from electing to take a child’s part in lieu of the provisions of the will, and in lieu of dower?

2nd. If the answer to the above question iá in the negative and she had a right to elect a child’s part, is the claim thus asserted (a) superior to that of creditors? (b) should the widow contribute from the child’s part to the payment of the expense of administration? (c) is her claim superior to those of legacies?

3rd. Was the complainant chargeable with the fee of $25 allowed the guardian ad litem?

4th. Was there equity in the bill?

We will examine these propositions in the order stated. 1st. The following sections of the Revised Statutes, relating to the question to be examined, are quoted as follows :

“Section 1830. When any person shall die intestate, or shall make his last will and testament, and not therein make any express provision for his wife by giving and devising unto her such part or parcel of real and personal estate as shall be satisfactory to her, such widow may signify her dissent thereto in the Circuit or County Judge’s court of the county wherein she resides at any time within one year after the probate of such will, and then and in that case she shall be entitled to dower in the following manner * * * .”

“Section 1831. When a husband shall die intestate, or shall make his last will and testament, and not make provision therein for his wife, as expressed in section 1830, 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, she shall be entitled to one-half; but if there be more than one child, she shall be entitled to one-third part in fee simple, and such claim shall have preference over all others, and the said share shall be free from all liability for the debts of the decedent.”

“Section 1833. 1. In all cases in which the widow of a deceased person shall be entitled to dower, she may. elect to take in lieu thereof a child’s part. 2. Such election shall be made within twelve months after the probate of the will, or granting letters of administration, or she shall be confined to her dower. 3. If a widow take dower, she shall be entitled only to a life estate in the real property, to return at her death to the estate of the deceased husband for distribution; if she takes a child’s part, she shall have in the property set apart to her a fee simple estate in the real property, and an absolute right to the personal property set apart to her, with power to control or dispose of the same by will, deed or otherwise.”

There is no doubt of the force of the general rule invoked by appellees, that “a trustee must assume the validity of the trust under which he acts;” that a person can not accept and reject the same instrument, or having availed himself of it as to part, defeat its provisions in any other part, and that this rule applies to deeds, wills and all other instruments whatever. Saunders v. Richard, 35 Fla. 28, text 41, 16 South. Rep. 679. But it seems to us that it would be inconsistent with the policy of the statute law giving the right to a widow to elect within twelve months between the provisions of the will of her husband, and the statutory provisions of dower or child’s part, to apply this rule in its rigor, to the facts of this case. We have discovered one case in which the rule was rigorously applied, and in which it was held that where a widow qualified as executrix of her husband’s will she could not afterwards dissent from the will and claim dower. Mendenhall v. Mendenhall, 8 Jones’ Law (N. C.) 287. The contrary is held in California. In re Gwyn's Estate, 77 Cal. 313, 19 Pac. Rep. 527. The statutory provisions of Georgia are somewhat like our own, in respect that they give the widow the right of election between the will of her husband, and dower, or a child’s part (except that it is expressly provided that if she make the election in ignorance of the facts she will not be bound by it).- In the case of Churchill v. Bee & Co., 66 Ga. pp. 621-632, a widow qualified as executrix under the will of her husband, and it was held (p. 632) that “the mere fact that she executed the will, will not impair the exercise of her right of election, but if in executing it she does acts, and involves third persons in so acting, which do not at all consist with her claim of dower, if she sells and mortgages it, and' treats it as assets, such acts should be construed to manifest her election to take under the will.”

It is held in Hill v. Hill, 88 Ga. 612, 15 S. E. Rep. 674, that a widow might repudiate an election she had made, where it was practicable for her to do so without injury to the estate, or to the executor personally. See, also, Steele v. Steele’s Adm’r. 64 Ala. 438; Adams v. Adams, 39 Ala. 274; Stephens v. Gibbes, 14 Fla. 331, and especially pages 356 to 360 inclusive.

The statute gives the widow twelve months within which to ascertain the facts which will enable her to make a rational decision between the will and her statutory rights of dower or child’s part, and unless during that time she does some act or acts which clearly indicates her purpose to abide by the will, and which would make it impracticable for her to repudiate her election to take under the will without prejudice to the rights of others, we do not think she should be deprived of her right of election to take dower or a child’s part before the expiration of that time. The fact that she qualified as executrix, and joined with her co-executor in collecting claims due the estate are not in our opinion such acts as amounted to an irrevocable election, (a and b) The next proposition is, having elected to take a child’s part and being enabled to do so, is her claim superior to that of creditors, and is it liable to costs of administration? It is probable that our statute allowing a widow to elect “a child’s part” in her husband’s estate was taken, with modifications, either directly or indirectly from the statute of North Carolina passed in 1784 (Rev. Stats, of N. C., pp. 612-615) 14 Fla. 355. In 1801 the Supreme Court of North Carolina, in interpreting the statute, says: “The act of 1784 extends to the widow that principle of equality which was before confined to the children, and in all cases where there are two or more she is equally entitled to the personalty with them. This is evident from the law using the expression “a child’s part,” which ex vi termini, imports as large a share as any child has. Davis v. Duke, Cameron & Norwood (N. C.) 361.

In Georgia, where a widow is permitted by statute to elect to take a child’s part in lieu of dower, it was held by the Supreme Court, in an opinion by Judge Beeckeey, that where the widow sells the whole of her deceased husband’s estate, or an estate beyond her own life, her .election to take a child’s part is made, and the purchaser takes her distributive share and becomes a part owner with the children of the intestate. Brown v. Cantrell, 62 Ga. 257.

The sections of the Revised Statutes already quoted were substantially taken from the territorial acts of 1828 and 1838. In 1840 the appellate court of Florida, then a territory, in the case of Ellis v. Parish, in an opinion filed February 10th, 1840, explicated the phrase “a child’s part.” The court says the term “child’s part” evidently meant the part or share of the estate to be apportioned amongst the children by the existing laws of the territory, after the widow’s dower and debts of the estate were satisfied. This, from the nature of the provision, must be a varying share or proportion to be determined by the number of the children with the addition of the widow. The addition will have to be made by necessary intendment, otherwise the result would be absurd or might be destructive of the claim of a child. For instance, if one child only was left and a widow, both would be regarded as children to take an equal part. If two. children and a widow, a child’s part would be a third. It was further held that the “child’s part” of the widow was proportionately liable with that or those of a child or children for the debts of the estate, because there was no express exemption from such liability, and none by intendment, but rather the reverse, as to exempt the widow’s share and throw the debts upon the share or shares of a child' or children would be unjust to the latter.

In the case of Harrell v. Harrell, 8 Fla. 46, the widow elected to take a child’s part in her husband’s estate. The court held that she was entitled to a child’s part. In the latter part of this decision the court says: “Now, there is no question that the act of 1838 does, in a case where there is one or more children, give to the widow a prescribed portion of the fee in realty; and a like portion of absolute estate in the personalty. In such a case it has never been doubted that if she so elect she is to be counted as a child, and that the estate is to be equally divided between the widow, and the child or children, as the case might be.” The widow having elected to take a child’s part, it seems to us that like a child she would be obliged to contribute ratably from her share to the payment of debts, and the costs of administering the estate up to and including the point of actual distribution. In other words, that debts and costs of administering are to be first paid out of the estate before there is a distribution. Of course she would not be obliged to pay the costs of administering the trusts. Cox v. Dunn, 3 Mo. App. 348.

(c) Is the widow’s share of a “child’s part” superior to that of legacies? As the widow, when she is dissatisfied with the will of her husband, because no satisfactory provision for her is made therein, may in all cases dissent therefrom, and elect to take dower, and as in all cases in which she shall be entitled to dower she may elect to take in lieu thereof a child’s part, no reason appears why this share should be subject to the legacies of the will. The legacies themselves might embrace the larger proportion or all the estate, and might be the cause of the widow’s dissatisfaction and dissent. It appears to us that the exercise by her of the right of dissent makes the will a nullity, so far as she and her rights are concerned, and her rights thereby become statutory. No authority is shown in support of a contrary view. Lily v. Menke, 143 Mo. 137; Witherspoon v. Watts, 18 So. Car. 423; Dean v. Hart, 62 Ala. 308.

3rd. Was the complainant chargeable with the fee of twenty-five dollars allowed guardian ad litem? We think the decree making the complainant liable for this fee was erroneous. It was a proper charge against the estate, as an item of administration. Under the circumstances, as will hereafter appear, it was necessary that a court of equity should ascertain and determine the rights and interests of the parties to the suit, and it was proper that the minors should be represented by a guardian ad litem.

4th. Was there equity in the bill? What has been heretofore said is an answer to this question. The flexible powers of a court of equity render it the proper forum for ascertaining and determining the rights of William H. Benedict, who is of unsound mind; for ascertaining and determining the rights, interests and liability of the widow under her election, and other matters involved in the case. 2 Story’s Eq. Jur., secs. 1075 to 1088, and sec. 1364; Harrell v. Harrell, 8 Fla. 46; 3 Pomeroy’s Eq. Jur., secs. 1152, 1153 and 1155; 1 Pomeroy’s Eq. Jur., secs. 156 and 157. Besides, the statutes do not afford the widow any remedy in such a case.

The decrees appealed from are reversed at the cost of appellees, and the cause remanded for further proceedings in accordance with law and this opinion.