First Nat. Bank v. Macdonald

• Decision Date: 10 October 1930
• Parties: FIRST NAT. BANK OF ST. PETERSBURG et al. v. MacDONALD et al.
• Court: Florida Supreme Court

130 So. 596

100 Fla. 675

FIRST NAT. BANK OF ST. PETERSBURG et al. v. MacDONALD et al.

Florida Supreme Court, Division A.

October 10, 1930

On petition for rehearing.

Petition denied.

For former opinion, see 129 So. 911.

Appeal from Circuit Court, Pinellas County; John U. Bird, Judge.

COUNSEL

Booth & Dickinson, of St. Petersburg, and Mabry Reaves & White, of Tampa, for appellants.

Bilger & Grazier, of St. Petersburg, and Lodge & Brown, of Detroit Mich., for appellees.

OPINION

TERRELL C.J.

William H. Hill of St. Petersburg, Fla. died testate in July, 1929 leaving a large and valuable estate. Soon after the testator's death his wife became insane, and the appellant was duly appointed as guardian of her person and estate. Mr. and Mrs. Hill had no children, and, except a sister of Mr. Hill, no relations nearer than nephews and nieces. After making liberal provision for his wife and bequests to some relatives and friends, the testator bequeathed the remainder of his estate to educational and charitable institutions. The guardian of Mrs. Hill elected for her to dissent from the provisions of the will in her behalf and to take dower as provided by statute. Petition was then submitted to the probate judge to confirm such election when the executors of the will intervened; but, on hearing testimony from both sides, the probate judge confirmed and approved said election. On appeal to the circuit court, the order of the probate judge was reversed, and appeal was taken to this court, which by per curiam order filed August 6, 1930, affirmed the decision of the circuit court.

Three questions are brought here for our adjudication, viz.: (1) Can the guardian of an insane widow or the court for her elect to dissent from the terms of her husband's will and to take dower as authorized by section 3629, Revised General Statutes of 1920 (section 5493, Compiled General Laws of 1927), or is such election personal to the widow? (2) If such election can be made by the guardian or the court for the insane widow, must it be done through the probate judge's court or must it be made through a court of chancery? (3) Under the facts in this case, was the guardian or the court for the insane widow warranted in dissenting from the terms of the will for the purpose of taking dower under the statute?

We will treat questions 1 and 2 together. That part of section 3629, Revised General Statutes of 1920 (section 5493, Compiled General Laws of 1927), which authorizes the widow under the circumstances therein named to dissent from the terms of her husband's will, in effect provides that, if the husband shall die testate and not make provision in his will satisfactory to his widow, she 'may signify her dissent thereto in the circuit court 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 in that case she will be entitled to dower.'

It is also provided under our law that in all cases where the widow of a deceased person shall be entitled to dower she may take in lieu thereof a child's part. Section 3632, Revised General Statutes of 1920 (section 5496, Compiled General Laws of 1927). The right accorded the widow under both these statutes is personal and absolute to her, and, if exercised as the statute provides, is incontestible by devisees, legatees, heirs, or creditors. Bowers v. McGavock, 114 Tenn. 438, 85 S.W. 893; Donald v. Portis, 42 Ala. 29; Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539; Clark v. Boston Safe Deposit & Trust Co., 116 Me. 450, 102 A. 289, L. R. A. 1918B, 384; Flynn v. McDermott, 183 N.Y. 62, 75 N.E. 931, 2 L. R. A. (N. S.) 959, 111 Am. St. Rep. 687, 5 Ann. Cas. 81. A sheaf of other decisions support this view.

If the statute in terms extended the right to renounce to the guardian or other representative of the insane widow, the same rule might apply, but our statute does not in words or by fair implication extend the right to renounce the provisions of the husband's will to his insane widow or to her guardian for her. When the right of renunciation is not thus extended, a court of equity may on proper showing made elect to renounce for her. Pomeroy's Equity Jurisprudence (4th Ed.) vol. 1, par. 510, and cases cited; Van Steenwyck v. Washburn, 59 Wis. 483, 17 N.W. 289, 48 Am. Rep. 532; In re Connor's Estate, 254 Mo. 65, 162 S.W. 252, 49 L. R. A. (N. S.) 1108; In re Reeves' Estate, 10 Del. Ch. 324, 92 A. 246; Miller v. Keown, 176 Ky. 117, 195 S.W. 430.

But appellant contends that under the law of this state jurisdiction to dissent from the provisions of the husband's will for the benefit of the insane widow rests in the probate courts. We do not think this contention is well grounded. We find no constitutional or statutory provision supporting it; the probate court is a court of limited jurisdiction, and has no chancery jurisdiction, unless the power vested in it is a chancery as well as a probate power. Mott v. First National Bank of St. Petersburg (Fla.) 124 So. 36. It is quite true that county judges' courts exercise general powers as judges of probate, have jurisdiction of the estates of infants, and may appoint and control guardians of idiots and lunatics ( Fiehe v. Householder Co. (Fla.) 125 So. 2; section 17, article 5, Constitution of Florida, sections 3968 and 3991, Revised General Statutes of 1920 [section 5888 and 5913, Compiled General Laws of 1927]), but, as we shall later show, these are essentially different matters from exercising the election to dissent from the provisions of the husband's will in behalf of the insane widow. In the absence of statute providing for election in the probate court, the decisions are practically unanimous in holding that it must be exercised in a court of general equity jurisdiction. In re Connor's Estate, supra; Davis v. Mather, 309 Ill. 284, 141 N.E. 209; Van Steenwyck v. Washburn, supra; In re Brooke's Estate, 279 Pa. 341, 123 A. 786.

Under the common law, equity had the care of the persons and estates of idiots and insane persons. Our Constitution contemplates both common-law and equity jurisdiction. Under our scheme of jurisprudence, circuit courts which are also courts of chancery are clothed with 'supervision and appellate jurisdiction of matters arising before county judges, pertaining to their probate jurisdiction, or to the estates and interests of minors.' Our circuit courts also have 'exclusive original jurisdiction in all cases of equity,' and, as was said in a splendid opinion by the chancellor below, the questions involved in this case require the application of the nicest principles of equity jurisprudence.

An insane widow or one acting for her does not come into a court of equity for the purpose of renouncing her husband's will on like terms and in the same legal status as if she were sane. As to the sane widow, we have shown that the act of renunciation is personal,...