Benedict v. Wilmarth

• Decision Date: 21 July 1903
• Parties: BENEDICT v. WILMARTH et al.
• Court: Florida Supreme Court

35 So. 84

46 Fla. 535

BENEDICT v. WILMARTH et al.

Florida Supreme Court, Division A.

July 21, 1903

Appeal from Circuit Court, Duval County; Rhydon M. Call, Judge.

Bill by Mary E. Benedict against Thomas S. Wilmarth and others. Decree for defendants, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A widow, by qualifying as executrix of her husband's will and by uniting with her coexecutor in foreclosing mortgages of her husband's estate, and by buying in the property for the use of the estate, and who has done no other act as executrix which would make it impracticable for her to repudiate the will without prejudice to the rights of others is not thereby estopped from electing within 12 months to take dower, or a child's part, in the estate of the deceased husband.

2. If under the circumstances stated in the above headnote, a widow elects to take a child's part in her husband's estate, her statutory rights in the estate of her husband are superior to those of legatees under the will.

3. If under the circumstances stated in the first headnote, a widow elects to take a child's part in her husband's estate, she takes a child's part subject to the debts of the estate and the cost of administration up to and including the point of actual distribution.

4. If, under the circumstances stated in the first headnote, a widow elects to take a child's part in her deceased husband's estate, and there is one child and heir of such deceased husband, the widow is counted as a child, and she will be entitled to one-half of the estate, after the payment of the costs of administration, as stated in the foregoing headnote.

5. A bill by the widow, which sets up the fact of the marital relation, the decease of the husband; that he left surviving him one child; that he left a will; that the will contained various legacies and trusts; that the widow was named executrix in the will; that she qualified as such, and that within 12 months after the probate of the will she elected to take a child's part in the estate of her husband; and praying that she be decreed to be entitled to a child's part; that the same be set apart to her, and her share be delivered into her possession; that certain portions of the property cannot be partitioned, but will have to be sold for partition; that the surviving child and heir is a legatee under the will, and is of unsound mind, and has been so adjudicated to be; and that some of the legatees are minors--sets up a state of facts which calls for the ascertainment and adjudication of the rights and interest of the parties in a court of equity.

COUNSEL

Cooper & Cooper, for appellant.

R. H. Liggett, for appellee Thomas S. Wilmarth.

Duncan U. Fletcher, for other appellees. On the 25th day of August, 1899, Mary E. Benedict filed her bill in the circuit court of Duval county, Fla., against Thomas S. Wilmarth, as executor of the last will and testament of Charles B. Benedict, deceased; William H. Benedict, a person of unsound mind; William N. Benedict, as guardian of the person and property of William H. Benedict; Walter N. Benedict in his own right and person (all of Duval county, Fla.); Eugene F. Benedict, of Cleveland, Ohio; Gertrude H. Steele and Helen B. Steele, of Galesburg, Illinois (the last tow minors); and alleged, in substance: That Charles B. Benedict, late of Duval county, Fla., now deceased, was at the time of his death a citizen and resident of Duval county. That he died on the 26th day of June, 1898, leaving a will. That complainant, Mary E. Benedict, was married to Charles B. Benedict in his lifetime, was his wife at the time of his death, and is now his widow. That Charles B. Benedict left surviving him only one child, to wit, William H. Benedict, who is more than 21 years old, and unmarried, and left no other heir. That William H. Benedict, upon proper legal proceedings, has been adjudged insane and non compos mentis under the laws of Florida, and that Walter N. Benedict had been duly appointed guardian of the property, and also guardian and committee of the person, of William H. Benedict. That on the 18th day of November, 1898, Walter N. Benedict filed the bond required by the decree of the chancery court, and qualified as such guardian and committee. That on the 26th day of August, 1898, the last will and testament of Charles B. Benedict, including two codicils, was admitted to probate in the county judge's court for Duval county. That in said will the complainant, Mary E. Benedict, and Thomas S. Wilmarth and Eugene F. Benedict were named as executors. That on the 24th day of August, 1898, Eugene F. Benedict filed his declination or refusal in writing to qualify and serve as an executor of said will. That on the 26th day of August, 1898, Thomas S. Wilmarth qualified as executor, and that on the same day the complainant qualified conditionally as executrix, of said will, and expressly stipulated in writing in her qualification that she did not waive, but expressly reserved, all her rights as widow to dissent as to the provisions of the will, and to elect to take dower or a child's part in lieu thereof in the estate of Charles B. Benedict. That on the 17th day of September, 1898, letters testamentary issued to said Mary E. Benedict and Thomas S. Wilmarth as executrix and executor of said will. Certified copies of the will and codicils, of the refusal of Eugene F. Benedict to act as executor, of the order of the county judge admitting the will to probate, of the oath and qualification of the executrix and executor, and of the letters testamentary, marked as exhibits, are filed with the bill as parts thereof.

The bill alleges: That on the 23d day of February, A. D. 1899 said Mary E. Benedict, as widow of Charles B. Benedict deceased, did signify, declare, and file in writing in the county judge's court for Duval county her dissent to the said last will and testament of Charles B. Benedict and of the codicils thereto; that she was not satisfied with the provisions thereof; and that she did elect to take a child's part of the estate, real and personal property of every kind whatsoever, of Charles B. Benedict, at the time of his death, or which belongs to or may accrue to his estate, in lieu of the provisions of said will and codicils, and in lieu of dower in said estate; and a certified copy of such election and of the order of the county judge admitting the same to record, and a part of the proceedings in the said estate of Charles B. Benedict, made on the 23d day of February, 1899, are attached as exhibits to the bill, and made parts thereof. That complainant still signifies her dissent to the said last will and codicils thereto, and still elects to take a child's part of the real and personal estate of said Charles B. Benedict, which belongs or may accrue thereto, in lieu of the provisions of the will and codicils and in lieu of dower. That at the time of his death Charles B. Benedict was seised and possessed of divers lots, pieces, and parcels of lands and tenements, with the hereditaments and appurtenances belonging thereto, in Duval and other counties in Florida, and in North Carolina, and was possessed and owned personal property. That a list thereof was filed in the county judge's court of Duval county, and a certified copy thereof, marked as an exhibit, is filed with the bill as a part thereof, and that the valuations thereof are approximations, and it is prayed that for the purposes of this suit the values be ascertained under the directions of the court. That several mortgages particularly described have been foreclosed by the executor and executrix, the property involved sold, and bought in by the executor and executrix for the use and benefit of the estate. That the devises and bequests of the will and codicils to Mary E. Benedict, complainant, and William H. Benedict are shown by the copies thereof attached to the bill as parts thereof. That by said will and codicils it is provided Walter N. Benedict, Eugene F. Benedict, Gertrude H. Steele, and Helen B. Steele have certain contingent or residuary interests in the property left to William H. Benedict; and Walter N. Benedict, Gertrude H. Steele, and Helen B. Steele are attempted to be given some residuary or contingent interest in the property devised and bequeathed to complainant, Mary E. Benedict, the particulars of all which appears by the will and codicils made a part of the bill. That by said will and codicils a legacy of $1,000 was left to Caroline A. Whitcomb, of Leominster, Mass., a legacy of $1,000 to Eugene F. Benedict, a legacy of $2,000 to Gertrude H. Steele, a legacy of $2,000 to Helen B. Steele, and a legacy of $2,000 to Walter N. Benedict. That the indebtedness of the estate will probably not exceed $3,000. That complainant is advised and alleges that under the laws of Florida, and under her election to take a child's part of the property of said estate, she is entitled to one-half of the real and personal property belonging to the estate of Charles B. Benedict. That the same is not subject to the provisions of the will and codicils, nor to the legacies thereof, nor to the debts of Charles B. Benedict or of his estate. That by the terms of the will and codicils large portions of the property are left to the executors as trustees upon specified trusts, and for the proper execution thereof it is necessary that the executrix and executor have the advice and determination of the court as to what are the rights and interests of the said complainant in said estate, as distinguished from the right, powers, and duties and interests of said trustees. That the said William H. Benedict, for whose benefit during his natural life large portions of the property are bequeathed to the executors, is of unsound...