Bailey v. Smith

• Decision Date: 27 March 1925
• Citation: 89 Fla. 303,103 So. 833
• Parties: BAILEY v. SMITH et al.
• Court: Florida Supreme Court

103 So. 833

89 Fla. 303

BAILEY v. SMITH et al.

Florida Supreme Court

March 27, 1925

En Banc.

Suit by Thyra Mae Smith, as executrix of the last will and testament of Jennie McLean Bailey, and others, against Paul W. Bailey. From an order overruling a demurrer to the complaint defendant appeals.

Reversed.

(Syllabus by the Court.)

Appeal from Circuit Court, Polk County; John S Edwards, judge.

COUNSEL

Don Register, of Winter Haven, for appellant.

W. J. Touchton, of Winter Haven, and Olliphant &amp Olliphant, of Bartow, for appellees.

OPINION

WHITFIELD J.

This appeal was taken from an order overruling a demurrer to a bill of complaint brought for the partition of personal property, viz. a savings bank deposit and several mortgages, all payable to 'Paul W. Bailey and Jennie M. Bailey,' who, it appears, were husband and wife, it also appears that Jennie M. Bailey died leaving a will in which she bequeathed to her husband Paul W. Bailey $100 and to others 'all of the rest, residue, or remainder' of the testator's property. Partition is sought on the theory that the wife could bequeath her interest in the property that stood in the joint names of husband and wife.

The points presented for adjudication are whether under the laws of Florida, an estate by the entireties in personal property, may exist so that the husband may take all of the property by right of survivorship, and whether the allegation of the bill of complaint that Jennie M. Bailey, the testatrix, 'was seized and possessed of an undivided one-half interest in common with the said Paul W. Bailey,' is sufficient to show a tenancy in common of the property by the husband and wife. As the bill alleges and the exhbits show, the choses in action were the property of 'Paul W. Bailey and Jennie M. Bailey,' the allegation that the testatrix owned 'an undivided one-half interest in common' with her husband in the choses in action is insufficient to show a severable interest of the testatrix, if tenancies by the entireties in choses in action may exist in this state.

An estate by the entireties is an estate held by husband and wife together so long as both live, and after the death of either by the survivor so long as the estate lasts. 13 R. C. L. 1096. It is an estate held by husband and wife by virtue of title acquired by them jointly after marriage. It is a peculiar and anomalous estate. It is a sui generis species of tenancy. The essential characteristic of an estate by the entirety is that each spouse is seized of the whole or the entirety, and not of a share, moiety, or divisible part. Each is seized per tout et non per my. There is but one estate, and, in contemplation of law, it is held by but one person. 30 C.J. 564, 565. Marble v. Jackson, 245 Mass. 504, 139 N.E. 442.

Where property is acquired specifically in the name of both husband and wife, they become seized of the estate thus granted per tout et non per my, and not as joint tenants or tenants in common. The estate thus created is, however, essentially a joint tenancy, modified by the common-law doctrine that the husband and wife are one person. Upon the death of one spouse the entire estate goes to the survivor, but the survivor takes no new estate, since there is a mere change in the person holding, and not an alteration in the estate held. Neither spouse can alien or forfeit any part of the estate without the assent of the other so as to defeat the right of the survivor. There can be no severance of the estate by the act of either, and no partition of the lands during their joint lives. This is the common-law doctrine established in England and in the United States, with the exception of one or two jurisdictions. English v. English, 66 Fla. 427, text 430, 63 So. 822; Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376. See McGhee v. Henry, 114 Tenn. 548, 234 S.W. 509, 18 A. L. R. 103.

This character of estate exists at common law in personal property as well as in realty. Christ's Hospital v. Budgin, 2 Vern. 683; Coppin v. --------, 2 P. Wms. 496; George v. Dutton, 94 Vt. 76, 108 A. 515, 8 A. L. R. 1014, and notes; 30 C.J. 574; 21 Cyc. 1197. And particularly, as to choses in action payable to husband and wife jointly, see 13 R. C. L. p. 1106; West v. McCullough, 123 App.Div. 846, 108 N.Y.S. 493; In re Blumenthal's Estate, 119 Misc. 588, 196 N.Y.S. 764; Patton v. Rawlins, 68 Ind. 245, 34 Am. Rep. 254.

The common and statute laws of England which are of a general and not a local nature are in force in this state when not inconsistent with organic or statutory laws. Section 71, Rev. Gen. Stats. 1920; English v. English, supra.

The Constitution of Florida provides that:

'All property, real and personal of a wife owned by her before marriage, or lawfully acquired afterwards by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women.' Section 1, art. 11.

This organic provision protects a married woman's...