Aron's Estate, In re, 59-741

• Decision Date: 10 March 1960
• Docket Number: No. 59-741,59-741
• Citation: 118 So.2d 546
• Parties: In re ESTATE of David ARON, Deceased.
• Court: Florida District Court of Appeals

Page 546

118 So.2d 546

In re ESTATE of David ARON, Deceased.

No. 59-741.

District Court of Appeal of Florida, Third District.

March 10, 1960.

Grady C. Harris, Miami, as guardian of the property of Anna L. Aron, Incompetent, in pro. per.

Leonard Rivkind, Miami Beach, for executrix of the Estate of David Aron, deceased.

PEARSON, Judge.

Incident to the probate of the estate of David Aron, deceased, in the County Judge's Court of Dade County, that court has certified to this court, under Rule 4.6 of Florida Appellate Rules, 31 F.S.A., the following questions:

'First Question: Where the facts in the pending cause are as above stated, do any of the provisions of Sec. 731.35 Florida Statutes 1957 [F.S.A.] bar the aforesaid election of Anna L. Aron, Incompetent, by said guardian of her property, and of said guardian of her property, to take dower in the properties and rights of property owned by her husband David Aron at the time of his death, because said election was not filed in said probate cause within nine months after said executrix's said notice to creditors was first published?

'Second Question: If the answer to the aforesaid first question of law is 'Yes', is said limitation of time for filing said election to take dower, as set forth in Sec. 731.35 Florida Statutes 1957 [F.S.A.], tolled or stayed for a period of one year next after the date (August 15, 1958) on which said guardian of the property of Anna L. Aron, Incompetent, was appointed by the County Judge's Court of Dade County, Florida, by reason of the provisions of Sec. 744.62 Florida Statutes 1957 [F.S.A.] which read as follows:

"Suspension of statutes of limitations in favor of guardian.--If a person entitled to bring an action is declared incompetent before the expiration of the time limited for the commencement thereof and the cause of the action survives, the action may be commenced by the guardian after such expiration and within twelve months from the date of the order appointing him.'?'

The county judge's court has furnished us with a complete statement of facts, an abstract of which follows.

Anna L. Aron, the wife of David Aron, was on the petition of her husband, adjudicated to be mentally incompetent by an order of the County Judge's Court of Dade County, Florida, dated April 19, 1954. She was committed to G. Pierce Wood Memorial Hospital, at Arcadia, Florida, and has remained in said hospital since June 12, 1954. Her disabilities have never been removed. Between April 19, 1954 and August 15, 1958, no guardian was appointed for the person or for the property of said incompetent.

Her husband, David Aron, died testate on December 3, 1956, leaving surviving him his said wife and two daughters.

On the petition of Dolores Bendiner, a daughter, the last will of David Aron dated August 1, 1956, was admitted to probate and record on April 15, 1957. Dolores Bendiner was appointed as executrix of said will and letters testamentary were issued to her on April 15, 1957. Said will devised and bequeathed all of David Aron's property in equal shares to his daughters (Dolores Bendiner and Marjorie Lois Aron) and his wife Anna L. Aron, and directed 'that upon the death of my said wife the corpus of her share of my estate will revert and be divided among any children.'

The sworn inventory of Dolores Bendiner, filed in said probate cause on August 7, 1957, showed that David Aron, at the time of his death, owned stocks, a checking account, an interest in a federal savings and loan association, cash money, a Plymouth automobile and personal effects valued at approximately $56,996.76.

The notice of said executrix to creditors to file their claims was first published on April 16, 1957.

Grady C. Harris was appointed as guardian of the property of Anna L. Aron, Incompetent, by an order of the County Judge's Court of Dade County, Florida, dated August 15, 1958. Letters of guardianship were issued to him on August 21, 1958.

On August 22, 1958, Anna L. Aron, incompetent, acting by Grady C. Harris as guardian of her property, elected to take dower by a written instrument to that effect which was verified and which was filed and recorded in said Probate Court on August 22, 1958.

Dolores Bendiner, as executrix of the last will of David Aron, deceased, objected to the allowance of said dower on the ground that said election was barred by section 731.35, Fla.Stat., F.S.A., in that it was not filed within nine months after the first publication of the notice to creditors.

As pointed out in Davies v. Davies, Fla.App.1959, 113 So.2d 250, and the subsequent case of Clar v. Dade County, Fla.App.1959, 116 So.2d 34, we will adhere to a strict interpretation of the rule for certification of questions to the appellate court. In our opinion the question certified here is within the purview of the rule.

The first certified question turns upon the proposition that dower of an incompetent widow is barred by the failure of the incompetent to file an election within the nine months provided by section 731.35, Fla.Stat., F.S.A. Although the origin of dower is very ancient, and existed at common law, the right referred to as dower in Florida springs wholly from the statutory law. Hill v. Morris, Fla.1956, 85 So.2d 847. At common law the widow's dower consisted of a life estate, for the term of her natural life, in one-third of all the lands of which her husband was seized in fee simple or in fee tail during the coverture by a title such as might pass by...