Jones v. Shomaker

• Decision Date: 16 March 1899
• Citation: 41 Fla. 232,26 So. 191
• Parties: JONES et al. v. SHOMAKER.
• Court: Florida Supreme Court

26 So. 191

41 Fla. 232

JONES et al. v. SHOMAKER.

Florida Supreme Court

March 16, 1899

Error to circuit court, Jackson county; D. L. McKinnon, Referee.

Action by J. R. Shomaker against Violet Jones and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a devisee accepts the provisions of the will, and goes into the possession of the land devised to her, by permission of the executor, and upon the understanding that the land will be surrendered when needed to pay debts, and such relation is never repudiated, such possession is not adverse in point of fact.

2. The title of a devisee is derived from the will, and does not vest until the testator's death.

3. A creditor who elects to accept a devise of real estate in a will in satisfaction of his claim, and thereby comes in under the will, has no rights superior to creditors of the estate. By accepting the devise in satisfaction of his debt, he must be regarded as doing so unser the rule that all just demands against the estate must be paid as directed by statute before he can have any distribution under the will.

4. This court has ruled that, if the parties go to trial on an immaterial issue tendered by plea, the defendant has the right to have the trial court charge the jury and submit to them such issue; but it had not held that final judgment should be entered upon the finding on such issue. Where a trial is had upon an entirely immaterial issue, not determining the rights of the parties, the court cannot know for whom to give judgment. In such a case, judgment non obstante veredicto, or repleader, should be awarded; amd if this is not done, and judgment be entered upon the verdict the appellate court will reverse the judgment, though it may not direct a judgment of repleader.

COUNSEL

Kehoe & Wilson, for plaintiffs in error.

Francis B. Carter, for defendant in error.

OPINION

MABRY J.

Defendant in error sued plaintiffs in error in ejectment for the possession of certain described lands situated in Jackson county, and obtained judgment. The trial was before a referee.

Defendants below filed the general issue, and a plea on equitable grounds, alleging, in substance, that the lands sued for belonged in his lifetime to one Cullen Curl, who died in February, 1880; that, for many years prior to Curl's death, defendant Violet Jones had been a domestic servant in his house, and rendered services for him, commencing in 1865 and continuing until his death, in 1880, and that Curl had never compensated her for said services, but it had always been the agreement and understanding between them that he would make provision for her in his last will and testament for said services, and she agreed to accept the same in satisfaction thereof; that before the death of Curl they had a reckoning and computation of what was due for said services, when the amount of $500 was agreed on, and also that the value of the lands sued for, and certain personal property, was about $60 less than the amount agreed on as due for said services, and thereupon it was mutually agreed between them that Curl should devise by his will said lands and personal property, and $60 in money, to Violet for her lifetime, and remainder in fee to her two children, Sherman and Florence; that Curl afterwards made his will, and therein bequeathed to defendants the property as agreed upon, the lands bequeathed being the same as described in the declaration, and after the death of Curl the executor and executrix of his will turned over and delivered to defendant Violet Jones the said lands, and she accepted the same, in full satisfaction of the amount due for her services aforesaid, and has ever since been in possession thereof claiming her life estate and the remainder in fee for said children, and has made no claim against the estate for said services.

It is further alleged that the estate of Curl owned more than 1,200 acres of land desides those involved in the suit, and personal property of more than $5,000 in value, and that a legacy of $500 had been paid by the executor of the estate that plaintiff was the purchaser of the lands sued for at execution sale against the estate of Cullen Curl, deceased, and is also an execution creditor upon an execution obtained after the death of Curl against his executors on a contract made by him in his lifetime.

A demurrer to the plea on equitable grounds was overruled, and issue joined on both pleas.

Defendant in error (plaintiff below) purchased the lands in question at sheriff's sale under an execution against the executor and executrix of the will of Cullen Curl, deceased. Curl died in 1880, and the judgment under which the lands were sold was rendered in May, 1885, upon an obligation assumed by the testator in his lifetime. The principal of the judgment was something in excess of $3,400, and a considerable body of land in addition to that sued for was sold under the execution as the property of Curl's estate. It appears from the proof that a legacy of $500 was paid by the executor, but nothing further is shown as to the extent or value of the estate, real or personal. By statute in this state, real estate in the hands of an executor or administrator is made liable, with personal property, to levy and sale under execution upon any judgment against the executor or administrator, and no question is presented in this case as to the regularity of the sale proceedings under which defendant in error purchased the lands in dispute.

The first and third paragraphs of Curl's will read of follows: 'First. It is my will that all my just debts be paid.' 'Third. I give and bequeath to my faithful servant, Violet Jones, sixty dollars in money, and the tract of land known as the 'Baker Place,' it being the same purchased by me from Beverly Baker (the metes and bounds of which the deed therefor will more specifically show), together with the cattle I have no that place, about nine or ten head, to have and to hold the same during her natural life, and at her death to go to her two children, Sherman and Florence, in fee simple, share and share alike.' The Baker place embraces the land purchased at the execution sale.

The chief contention for plaintiffs in error is that Violet Jones was more than an ordinary legatee under the will of Curl; that she was a purchaser for value, and as such is entitled to hold the lands bequeathed to her, as against the defendant in error, who was an execution creditor, and purchaser under a judgment against the executors named in Curl's will. In pursuance of this theory they interposed the plea on equitable grounds, and undertook to sustain it at the trial. Before we submit our conclusion on this phase of the case, we will dispose of the further contention that plaintiffs in error were entitled to judgment on the ground of an adverse possession of the lands for a period within the bar of the statute of limitations.

The referee was authorized to conclude from the evidence that Violet Jones went into possession of the land, by permission of the executor, soon after Curl's death, and that she continued to remain in possession until the trial of this action. Curl died in 1880; the judgment against the executors, under which the lands were sold, was obtained in 1885; and the sale under execution took place in June, 1893,--three months before the institution of the suit, and more than seven years after Violet Jones went into possession of the land. Whether adverse possession, if fully established by...