Godwin v. King

• Decision Date: 08 May 1893
• Citation: 13 So. 108,31 Fla. 525
• Parties: GODWIN v. KING et al.
• Court: Florida Supreme Court

13 So. 108

31 Fla. 525

GODWIN v. KING et al.

Florida Supreme Court

May 8, 1893

Appeal from circuit court, Jackson county.

Petition by Sarah J. Godwin against Emma King and Henry D. King for assignment of dower. Decree, from which petitioner appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. The widow is entitled under the statute to dower of one-third part of all the lands, tenements, and hereditaments of which her husband died seised and possessed, or had before conveyed, whereof she had not relinquished her right of dower as provided by law; and article 10 of the constitution of 1885, providing that the exemptions therein contained shall inure to the widow and heirs of the party entitled to such exemption, does not take away her right to dower in that portion of the real estate exempt as a homestead.

2. The constitution of 1885 does not undertake, any more than did the constitution of 1868, to regulate the descent of property, but it simply exempts a certain portion of the estate of the head of a family residing in this state from forced sale under process of any court for the debts of such head of the family, and to continue this exemption, after his death, to his widow and heirs. The respective shares of the widow and heirs are not determined by the homestead article in the constitution, but are ascertained under the law regulating dower and the descent of property in force in this state.

3. The widow's right of dower under the statute is entirely distinct and separate from the estate descending to the heir and is superior both to the claims of creditors and the inheritance of the heir.

4. In case of an intestate estate, where the decedent leaves more than one child, the widow is entitled under the statute to one-third part in fee of the personal property, and the fact that, under the homestead article in the constitution of 1885, $1,000 worth of personal property is exempt, together with the homestead real estate, and this exemption also inures to the widow and heirs, does not repeal the statute in reference to, or take away her right to, the one-third part of the personal property in the estate of her deceased husband.

5. Where the head of a family residing in this state, and entitled to the benefit of the homestead exemptions, is residing at the time of his death upon real estate containing more than 160 acres, not in an incorporated city or town, the heirs are interested in any question looking to the segregation or setting apart of the homestead exempt property. The assignment of dower and the setting apart of the widow's part in the personal property under the statute does not, however, involve the segregation or separation of the homestead exempt property.

6. The statutory proceeding is a summary method for the simple admeasurement of dower, and no other relief than that specially authorized by the statute can be granted; and should the powers of a court of equity be required to completely adjust the rights and interests of parties in such a case, resort must be had to such a court. But the mere fact that a portion of the property in which dower is asked to be assigned to the widow was the homestead of the deceased husband in his lifetime does not of itself necessitate a resort to the court of equity.

COUNSEL B. S. Liddon, for appellant.

F. B Carter, for appellees.

OPINION

MABRY J.

Alexander R. Godwin departed this life intestate on the 27th day of January, A. D. 1889, leaving appellant as his widow, and seven living children, and an heir of a deceased child. Decedent dwelt, before his death, in Jackson county, Fla and letters of administration were granted in said county to his widow. In April, 1889, she filed a petition in the circuit court for Jackson county to have set apart her dower in the estate of her deceased husband, and, in addition to the foregoing facts, alleged in her petition that said decedent at the time of his death owned a large amount of personal property and the following real estate, in which she had not relinquished her right of dower, viz.: N. 1/2 of S.W. 1/4, N.E. 1/4, E. 1/2 of N.W. 1/4, N.W. 1/4 of S.E. 1/4, of section 16, all in township 5, range 11; the S.E. 1/4 and W. 1/2 of N.E. 1/4 of section 25, township 5, range 12; two lots of land in the town of Cottondale, with certain boundaries given; also an undivided three-fourths interest in S.W. 1/4 of section 10, S.E. 1/4 of section 9, S. 1/2 of section 5, and N.W. 1/4 of section 8, all in township 5, range 11; and an undivided one-half interest in S.W. 1/4 of section 8; N.W. 1/4 of section 17, and W. 1/2 of S.E. 1/4; N.E. 1/4 of S.W. 1/4 of section 17, township 5, range 11. The prayer of the petition is that an order be made that petitioner have set off and allotted to her one-third part of all the said lands, tenements, and hereditaments as her dower, and also that the portion of the personal property of which her husband died possessed be set off to her.

Emma King and her husband, Henry D. King, filed an answer to said petition, and therein alleged that decedent, Alexander R. Godwin, at the time of his death, was the head of a family, residing upon and enjoying as a homestead under the constitution and laws of Florida the following portion of the real estate described in said petition, viz. N. 1/2 of S.W. 1/4, N.W. 1/4 of S.E. 1/4, and S.E. 1/4 of N.W. 1/4, of section 16, township 5, range 11, containing 160 acres, not situated within the corporate limits of any city or town. That, in addition to his said homestead, decedent was entitled to and enjoyed an exemption of $1,000 worth of personal property under the constitution and laws of this state; and the personal property of said estate was appraised at $5,470.50. That said administratrix has sold $1,943.50 of said personal property, and this amount, less some small sums paid to the heirs of decedent, and for costs and expenses of administration, is now in her hands. The appraised value of $559.50 of the personal estate she has reserved unsold with the intention of having her dower assigned in it, and she has selected $347.15 worth at its appraised value, to be credited on the shares of the minor children in said personal property. That the family of decedent at the time of his death consisted of his said widow and six minor children by a former marriage, residing in said county; and, in addition to said children, decedent left surviving him as heirs at law respondent Emma King, wife of Henry D. King, and Floie Knapp, minor and only child of Sarah R. Knapp, deceased, who was a child of deceased, A. R. Godwin.

It is then then alleged that the homestead and personal property exemptions of said decedent, Alexander R. Godwin, upon his death inured to said petitioner and said children as heirs, and that petitioner had no right of dower, or a third part, in said exempt property, but the same inured to her and said children in equal portions, under the constitution of this state.

A notice of the intention of petitioner to apply to the circuit judge for an order to have dower in said estate assigned to her, and for her part of the personal property to be allotted, was published for five consecutive weeks in the Times-Courier, a newspaper published in Jackson county, nearest the residence of said widow, Sarah J. Godwin, before the date of application.

Upon a hearing on said petition and answer the court granted the prayer of the petition as to all the property of said estate, real and personal, except the real estate alleged to be the homestead of decedent Godwin and $1,000 worth of the personal property, and as to this the petition was denied, on the ground that such property was the exemption of said decedent.

That the wife was entitled to dower in the homestead real estate exemption of her deceased husband under the constitution of 1868 has been settled by adjudications in this court. Wilson v. Fridenberg, 19 Fla. 461; Brokaw v McDougall, 20 Fla. 212; Wilson v. Fridenberg, 21 Fla. 386; Barco v. Fennell, 24 Fla. 378, 5 South. Rep. 9; Miller v. Finegan, 26 Fla. 29, 7 South. Rep. 140. Her right to dower in the homestead exempt property was not derived from the homestead article in that instrument, nor did the fact that the exemptions therein provided for accrued to the heirs of the party having enjoyed or taken the benefit of such exemptions have the effect to deprive her of her dower right in the homestead. The widow is entitled, under the statute of 1828, in force long prior to the adoption of the constitution of 1868, to dower of one-third part of all the lands, tenements, and hereditaments of which her husband died seised and possessed, or had before conveyed, whereof she had not relinquished her right of dower, as provided by law; and this right is superior to the claims of creditors. Neither was the heir's title to the homestead exempt property derived from the constitution of 1868, but came to him under the statute of descents, and the effect of the constitutional exemption was to relieve the homestead portion of the estate from the debts of the homesteader during his lifetime, and, after his death, in the hands of his heir. The language used in the first Wilson-Fridenberg Case, supra, is that 'the exemption here provided for is clearly exemption from sale for the debts of the owner of the property who is the head of a family residing in this state, and it is also as clear as language can make it that this exemption as a homestead from the debts of such owner is all that inures to his heirs upon his death, by virtue of the constitution.' This construction of the constitution of 1868 has been reiterated, and ever after, in subsequent decisions of this court, adhered to, as sound and correct. Upon the death of the ancestor his real estate descends...