Catlett v. Chesnut

• Decision Date: 05 November 1930
• Citation: 131 So. 120,100 Fla. 1146
• Parties: CATLETT v. CHESNUT.
• Court: Florida Supreme Court

131 So. 120

100 Fla. 1146

CATLETT v. CHESNUT.

Florida Supreme Court, Division A.

November 5, 1930

Error to Circuit Court, Duval County; DeWitt T. Gray, Judge.

Proceeding by Addie Irene Catlett against Charles H. Chesnut, as executor of the estate of B. S. Catlett, deceased, for admeasurement of dower and dissent of widow from provisions of the will. To review an adverse judgment, plaintiff brings error.

Reversed with directions.

COUNSEL W. M. Toomer and Charles A. Powers, both of Jacksonville, and George P. Garrett, of Orlando, for plaintiff in error.

Knight & Frazier and Knight, Adair, Cooper & Osborne, all of Jacksonville, for defendant in error.

OPINION

ELLIS J.

This case presents one principal question and several subsidiary questions. They are duly presented by this record, which is that of a cause under the statute for the admeasurement of dower and dissent of the widow from the provisions of her alleged husband's will.

The main question is: Has a widow, upon dissenting from the provisions of her husband's will and petition for the allotment of dower in his estate, the right to a trial by jury on the fact of the existence of the marriage relation when in the proceeding the executor of the will denies the existence of the marriage relation between the petitioner and the testate?

The circuit judge before whom the cause was tried denied the right to the petitioner, Mrs. Addie Irene Catlett, and she took a writ of error from this court.

The subsidiary questions are: May the petitioning widow testify to the fact of marriage as part of her case in the main; may after the executor has offered testimony in contradiction of that offered by the widow to show the circumstance of marriage, she testify in rebuttal as to the fact; does the evidence in the case establish the existence between the petitioner and the deceased testator of a common-law marriage; were certain other rulings of the circuit court as to the admission of evidence erroneous?

Incidentally another question was injected into the case involving the validity of the petitioner's divorce from a former husband prior to her alleged marriage with the deceased testator.

If the principal question is decided in the affirmative, the cause will have to be remanded to the trial court, with directions to submit the issue of fact to trial by jury, and the court's opinion upon the subsidiary questions would be merely obiter dictum, even if such opinion might be treated as advisory to the trial court in the jury trial.

The right of the wife to dower is not derived through the husband, but by provision of law. It is an interest which the law casts upon her. See Smith v. Hines, 10 Fla. 258; Finlayson v. Love, 44 Fla. 551, text 556, 33 So. 306.

The right of dower is superior to the husband's will. See Godwin v. King, 31 Fla. 525, 13 So. 108; Herzog v. Trust Co. of Easton, 67 Fla. 54, 64 So. 426, Ann. Cas. 1917A, 201 note.

The jurisdiction of the circuit or county judge's court to allot dower, and the proceedings by or through which the power is exercised has existed in this state since 1828. The jurisdiction as conferred upon the circuit courts by the Constitution of 1868 was not so narrowed as to exclude cases under the statute of 1828. The extent of the jurisdiction covers the power to determine the title to dower. See Henderson and Chaires v. Chaires, 25 Fla. 26, 6 So. 164.

In Ponder v. Graham, 4 Fla. 23, this court, quoting from an authority not now available to us, announced the conclusion that upon principle and authority it is competent for the executor, representing as he does the interest of distributees and creditors of the estate of a decedent, to impeach the validity of the latter's marriage to the petitioner seeking an allotment of dower as his widow. In that case the petition was filed in the circuit court. The executor filed his plea of 'ne unques accouple en loyal matrimonie,' which is a plea denying the validity of the marriage of the demandant with the person of whose lands she claims to be endowed and was available to a tenant in an action of dower. 2 Abbott's Law Dictionary.

In the Ponder Case, supra, the plea was recognized as a valid one to be interposed by the executor of the will of a deceased person of whose lands and personal property the claimant alleged herself to be endowed. In the Ponder Case the practice followed was a trial by jury. Neither the constitutions nor statutes since the year 1851 when the Ponder Case was tried have altered or modified the dower rights of a widow or the process by which dower is allotted.

In 1889, when the Henderson-Chaires Case, supra, was decided, this court, speaking through Mr. Chief Justice Maxwell, said:

'This summary proceeding is a substitute for the common-law writ to obtain dower, and was intended to relieve the widow of the delay and cumbrous machinery of that law. It is a proceeding at law, and therefore appropriate to a court of law, as distinguished from a court of chancery. The supreme court of the United States so held in Parish v. Ellis, 16 Pet. 451 , where it refused to entertain an appeal growing out of a case founded on this statute, because writ of error, and not appeal, according to the practice of that court, was the proper mode of bringing before it a case at law. Looking to the constitution of 1868 it will be found that circuit courts were invested with original jurisdiction 'in all cases at law

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