Moore v. Price

• Decision Date: 31 July 1929
• Citation: 98 Fla. 276,123 So. 768
• Parties: MOORE et al. v. PRICE et al.
• Court: Florida Supreme Court

123 So. 768

98 Fla. 276

MOORE et al. v. PRICE et al.

Florida Supreme Court, Division A.

July 31, 1929

Suit by Albert Price and another, minors, by Marie Price, their mother and next friend, against Delores Price Moore and husband. From the decree, defendants appeal.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

Homestead on husband's death passes to his heirs, subject to widow's dower, right to take child's part, and quarantine right (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, 5496, 5497). On death of husband homestead descends to his heirs at law subject to widow's dower and right to take child's part in lieu thereof and subject to her quarantine right, under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, 5496, 5497 and property ceases to be homestead except in so far as it is exempt from husband's debts.

Widow's acceptance of husband's will is not in lieu of assignment of dower in husband's homestead (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, 5496, 5497). Widow's acceptance of husband's will did not prevent assignment to widow of dower in property which constituted husband's homestead, since acceptance of will was not in lieu of dower, under Const. art. 10, §§ 1, 4, and Comp. Gen Laws 1927, §§ 5483, 5484, 5493, 5496, 5497.

Where there are children, husband's will, so far as it attempts to dispose of homestead, is void (Const. art. 10, §§ 1, 4). Where there is a child or children, will of husband attempting to dispose of homestead is void for any purpose in so far as the homestead is concerned, and widow is not deprived of dower right by failure to dissent from will, under Const. art. 10, §§ 1, 4.

Widow who fails to elect to take child's part of homestead within time prescribed is confined to dower (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5484, 5496). Where there are children, widow is accorded privilege of election to take child's part of homestead property in lieu of dower, under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927, §§ 5484, 5496, but, on failure to elect to take child's part within time prescribed, widow is confined to her right to dower.

Partition of deceased husband's homestead cannot generally be had until widow's dower has been assigned (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, 5496, 5497). Widow's right to dower in husband's homestead before assignment, under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, 5496, 5497, is not estate in joint tenancy or cotenancy or in coparcenary, and partition cannot ordinarily be compelled either by or against her until dower has been assigned.

Widow need not proceed to have dower in homestead assigned, but may await action of husband's heirs or personal representatives (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5493, 5496, 5497, 5499-5505). Widow is under no duty to proceed for assignment or allotment of dower in homestead of deceased husband under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927,§§ 5493, 5496, 5497, 5499-5505, but may await action of husband's heirs or personal representatives.

Widow, on allotment to her of portion of husband's lands as dower, has usual title, and is subject to usual burdens of estate for life (Comp. Gen. Laws 1927, §§ 5493, 5499-5506). After widow's dower has been assigned and allotted under Comp. Gen. Laws 1927, §§ 5493, 5499-5506, she is entitled to immediate possession of portion allotted her with title and burdens incident to estate for life, and dower rights cease altogether as to other lands of her husband.

Equity has concurrent jurisdiction to assign dower. Equity has concurrent jurisdiction for assignment of widow's dower.

Minor heirs of husband did not, by permitting several years to elapse, waive right to proceed to have widow's dower assigned (Comp. Gen. Laws 1927, § 5505). Under Comp. Gen. Laws 1927, § 5505, minor heirs of deceased husband were not required to take initiative in instituting statutory or equitable proceedings to assign widow's dower, and did not waive right to such assignment by several years' delay in asserting their rights.

Dower should be allotted in specie when such allotment is practicably possible (Comp. Gen. Laws 1927, § 5493). Widow's dower, under Comp. Gen. Laws 1927, § 5493, should be allotted in specie whenever it is practicably possible to do so.

Widow may be assigned her proportionate share of rents and profits arising from entire property, where property will not permit of allotment by metes and bounds (Comp. Gen. Laws 1927, § 5493). When property out of which dower is to be assigned is in its nature indivisible and cannot be allotted by metes and bounds, widow, under Comp. Gen. Laws 1927, § 5493, may be assigned her proportionate share of rents and profits arising from entire property.

Heirs of deceased husband held entitled in single suit to have dower in homestead assigned to widow and to compel partition among themselves of remaining property (Const. art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5483, 5484, 5493). Heirs of deceased husband held entitled in single suit to have dower in homestead assigned to widow and partition decreed among themselves as to remainder of such property, under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, especially where single piece of property was involved and widow not only had dower right in property, but was cotenant by assignment of interest by one of children of deceased husband.

Equity taking jurisdiction of property for one purpose will settle conflicting claims thereto. It is general rule that, where equity takes jurisdiction of property for one purpose, it will settle conflicting claims of several owners or claimants and adjust all equities of the parties growing out of subject-matter.

Court, on finding it impracticable to divide deceased husband's homestead in specie, should assign dower by awarding widow one-third of rental value for life to be charged against property (Const art. 10, §§ 1, 4; Comp. Gen. Laws 1927, §§ 5483, 5484, 5493). In suit by heirs at law of deceased husband against widow for assignment of dower in homestead, under Const. art. 10, §§ 1, 4, and Comp. Gen. Laws 1927, §§ 5483, 5484, 5493, court, on finding that division of property in specie without sale was impracticable, should award to widow one-third of rental value to be paid periodically during remainder of her natural life as charge against property, rather than to award gross sum over widow's objection.

Appeal from Circuit Court, Duval County; Daniel A. Simmons, judge.

COUNSEL

D. H. Doig and George C. Bedell, both of Jacksonville, for appellants.

Milam, McIlvaine & Milam, of Jacksonville, for appellees.

OPINION

BROWN J.

Alfred W. Price, a thrifty colored man, died in Duval county in November, 1918, leaving an estate appraised at $55,000. He left surviving him his widow, Delores Price, who subsequently married Arthur Moore, his adult son, Alfred W. Price, Jr., and the two minor complainants, Albert Price and Mabel Price, his grandchildren, the children of his deceased son, Curtis Price, who had died intestate before his father.

For several years before his death, Alfred W. Price had lived in a small two-storied dwelling house on the northeast corner of Julia and Carolina streets, Jacksonville, Fla., located upon the south half of lot 1, block 111, Hart's map of Jacksonville. This lot was 52 1/2 feet wide and 105 feet deep. There was also located on the lot, immediately north of Price's homestead, a small one-story dwelling which he had been renting out to tenants. Both of these buildings faced on Julia street, and stood about 3 feet apart. At the rear of said lot there were several sheds and outbuildings that were used by the deceased as a part of his homestead premises. This lot was appraised at $5,000.

Alfred W. Price left a will in which he bequeathed $100 to Alfred W. Price, Jr., and devised and bequeathed to his wife, Delores Price, all the rest and residue of his property of every kind in fee simple. The will appointed David H. Doig as executor without bond, and was duly probated.

The widow made no election to take a child's part in lieu of dower within one year after the probating of the will or granting of letters of administration; nor did she, for obvious reasons, dissent to the will. The will not being operative upon the property which had constituted the homestead of Alfred W. Price during his life, the widow at his death became entitled to dower therein, and she took all the remainder of the property left by the deceased in fee simple under the will.

Some five years later, the complainants, being the minor grandchildren above referred to, by Marie Price, their mother and next friend, filed this bill for partition against the widow, Delores Price Moore, and her husband, and Alfred W. Price, Jr., and Nettie Price, his wife. It being made to appear during the course of the proceeding that Alfred W. Price, Jr., and his wife had by warranty deed conveyed all their right, title, and interest in and to the property involved in this suit to the defendant Delores Price Moore, in 1922, the bill of complaint was dismissed as to them upon motion of the complainants.

The bill in this case, in addition to the facts above mentioned alleged that said widow, having made no election to take dower or a child's part, took under the will, and that the homestead premises descended as follows: To Delores Price Moore, the widow, an undivided one-third interest for life, to Alfred W. Price, Jr., an undivided one-half interest, subject to the widow's life estate, and to the complainants, each an undivided one-fourth interest subject to the widow's said...