Milam v. Davis

• Decision Date: 28 May 1929
• Citation: 123 So. 668,97 Fla. 916
• Parties: MILAM et al. v. DAVIS et al.
• Court: Florida Supreme Court

123 So. 668

97 Fla. 916

MILAM et al. v. DAVIS et al.

Florida Supreme Court

May 28, 1929

Rehearing Denied July 19, 1929.

En Banc.

Suit by George Davis and others against Arthur Y. Milam and others. From the decree, defendants appeal. Cause remanded, with directions.

Ellis and Buford, JJ., dissenting.

(Syllabus by Whitfield, J.)

(Syllabus by Brown, J., concurring.)

(Syllabus by the Court.)

On Petition for Rehearing.

Appeal from Circuit Court, Hillsborough County; L L. Parks, judge.

COUNSEL

John B Sutton, of Tampa, Robert H. Anderson, of Jacksonville Bussey, Mann & Barton, of St. Petersburg, and McKay, Withers & Ramsey, Caraballo, Moran & Graham, and Taliaferro & Morris, all of Tampa, for appellants.

Mabry, Reaves & Carlton, of Tampa, for appellees.

OPINION

WHITFIELD J.

In a suit brought by the appellees as complainants to have determined the rights of the parties under a will, it appears that D. P. Davis, having two minor children, on May 25, 1925, made a will, after which he married, and in 1926 died leaving his wife and the two minor children surviving. The will (1) directed that the testator's debts be paid; (2) made a bequest of $25,000 to the Children's Home Society of Florida; (3) designated a guardian of the persons and estates of the two minor children; and (4) devised and bequeathed to named trustees 'all the rest and residue of the property of every kind and nature whatsoever, and wheresoever situated, belonging to me at the time of my death, or in which I have any interest including policies of insurance on my life,' with directions as to the disposition and uses of such residuary bequest, the testator's two minor children being among the chief beneficiares. No mention of a wife or a widow or of the dower or other rights or interests of a wife or widow of the testator is made in the will. The testator was unmarried when he executed the will, but subsequently married. The real contest is as to the proceeds of the policies of insurance on the testator's life, amounting to $201,135.39. The life insurance policies were severally made payable 'to the insured,' 'to the estate of the insured,' and 'to the executors, administrators and assigns of the insured,' and had not been assigned or the beneficiaries changed prior to the testator's death, except as provided in the will.

The decree adjudicated that the proceeds of the life insurance policies were not subject to the debts of the testator, or to the dower or other rights of the widow, or to the legacy to the Children's Home Society of Florida, and that the proceeds of the life insurance policies should be used by the trustees as provided in the will. The executors and trustees, the widow, the Children's Home Society of Florida, the creditors, and the testator's father, who is a beneficiary under the residuary bequest, appealed; the minor children of the testator and their guardian being the appellees.

In the absence of a statute providing otherwise, the proceeds of life insurance policies payable to the insured or to his executors, administrators, or assigns are subject to dower rights like other personal estate of the insured. See Act November 7, 1828; section 3630, Revised General Statutes 1920; Woodberry v. Matherson, 19 Fla. 778; Smith v. Hines, 10 Fla. 258. See, also, Burdett v. Burdett, 26 Okl. 416, 109 P. 922, 35 L. R. A. (N. S.) 964; section 5494, Compiled General Laws 1927.

The following statutory provisions are to be considered:

'Every person of the age of twenty-one years, being of sound mind, shall have power by last will and testament in writing, to devise and dispose of his lands, testaments and hereditaments, and of his estate, right, title and interests in the same in possession, remainder or reversion, and of personal property.' Act November 20, 1828; section 1792, Rev. Stats. 1892; section 3592, Rev. Gen. Stats. 1920; section 5457, Comp. Gen. Laws 1927; section 2269, General Statutes 1906.

'When a husband shall die intestate, or shall make his last will and testament and not make provisions therein for his wife, as expressed in section 5493, she shall be entitled to a share in the personal estate in the following manner, to wit: If there be no children, or if there be but one child, she shall be entitled to one-half; but if there be more than one child, she shall be entitled to one-third part in fee simple, and such claim shall have preference over all others, and the said share shall be free from all liability for the debts of the decedent.' Act November 7, 1828. The last 16 words of the statute were added by the enactment of section 1831, Revised Statutes 1892.

'In all cases in which the widow of a deceased person shall be entitled to dower, she may elect to take in lieu thereof a child's part. * * *

'Such election shall be made within twelve months after the probate of the will or granting letters of administration or she shall be confined to her dower. * * *

'If a widow take dower she shall be entitled only to a life estate in the real property, to return at her death to the estate of her deceased husband for distribution; if she takes a child's part, she shall have in the property set apart to her a fee simple estate in the real property, and an absolute right to the personal property set apart to her, with power to control or dispose of the same by will, deed or otherwise.' Act February 8, 1838.

See section 2, p. 86, sections 1 and 2, p. 87, Duval's Compilation; sections 2, 3, and 4, p. 185, Thompson's Digest, and notes on Territorial Decisions; sections 2, 3, and 4, p. 476, McClellan's Digest; sections 1831, 1833, Revised Statutes 1892; sections 2307, 2309, General Statutes 1906; sections 2307, 2309, Florida Compiled Laws 1914; sections 3630, 3632, Revised General Statutes 1920; sections 5494, 5496, Compiled General Laws 1927.

'Whenever any person shall die in this State leaving insurance upon his or her life, the said insurance shall inure exclusively to the benefit of his or her child or children, husband or wife, in equal portions, or to any other person or persons for whose use and benefit said insurance is declared in the policy; and the proceeds thereof shall in no case be liable to attachment, garnishment, or any legal process by any creditor or creditors of the person whose life was so insured, unless said policy declares that said insurance was effected for the benefit of such creditor or creditors.' Chapter 1864, Acts 1872. See section 22, p. 534, McClellan's Digest; section 2347, Revised Statutes 1892.

The amendment added in 1897 is as follows:

'Provided, That when the insurance is for the benefit of the estate of the insured, or payable to said estate, the proceeds of the insurance may be bequeathed and devised by the insured to any person or persons, or for any uses, in like manner as he may devise any other property or effects of which he may be possessed, other than his homestead.' Chapter 4555, Acts 1897.

The proviso to the section was amended in 1903 so as to read as follows:

'Provided, however, That whenever the insurance is for the benefit of the estate of the insured, or is payable to the estate or to the insured, his or her executors, administrators or assigns, the proceeds of the insurance may be bequeathed by the insured to any person or persons whatsoever or for any uses in like manner as he or she may bequeath or devise any other property or effects of which he or she may be possessed, and which shall be subject to disposition by last will and testament.' Chapter 5165, Acts 1903.

See section 3154, General Statutes 1906; section 3154, Florida Compiled Laws 1914; section 4977, Revised General Statutes 1920; section 7065, Compiled General Laws 1927.

A proviso in a statute may contain additional legislation and not merely limit the scope of preceding provisions. See Burlingham v. Crouse, 228 U.S. 459, 33 S.Ct. 564, 57 L.Ed. 920, 46 L. R. A. (N. S.) 148.

The Act of 1872 and the amendments of 1897 and 1903 afford alternative provisions for the disposition of the proceeds of life insurance policies that are made payable to the insured or to his estate. One provision of the statute operates if the policies are not bequeathed, and the other provision operates if the policies are bequeathed. In either case the policies are not subject to the debts of the insured.

Under the Act of 1872, being the first part of the present statute, insurance policies made payable to the insured or to his estate, if left so payable at the death of the insured, would inure to his wife and children in equal portions, but under the amendments of 1897 and 1903, policies of insurance payable to the insured or to his estate may be bequeathed as 'other property or effects,' that are subject to testamentary disposition, and, if so bequeathed, the first part of the statute, or the original Act of 1872, has no application because policies payable as here, when bequeathed as permitted by the statute, pass under the will and not under the statute. If they pass under the will, they are, like 'other property or effects' of a married man, subject to the dower rights of his wife even as against his last will and testament if she duly asserts her dower rights.

Under the Act of 1872, which is the first part of the present statute, policies of insurance that are made payable to the insured or to his estate, if left so payable at his death would inure to his wife and children in equal portions, and such policies so payable could not be bequeathed by the insured if he be a married man with a child or children. The manifest and only purpose of the amendments to the statute which constitute the proviso is to authorize life insurance policies payable to the insured or to his estate to be...