Palmer v. Palmer

• Decision Date: 19 January 1904
• Citation: 47 Fla. 200,35 So. 983
• Parties: PALMER v. PALMER.
• Court: Florida Supreme Court

35 So. 983

47 Fla. 200

PALMER v. PALMER.

Florida Supreme Court

January 19, 1904

In Banc. Error to Circuit Court, Duval County; Rhydon M. Call Judge.

On rehearing. See 26 So. 640.

Syllabus by the Court

SYLLABUS

1. The effect of the Constitution of 1885, in so far as the homestead is concerned, where the relation of husband and wife exists, and where there is a child or children, is to compel such homestead to inure to the widow, as widow, and to the heirs, unless the consent of the wife can be obtained to its alienation in the lifetime of the husband, and, where such alienation does not take place, compels intestacy, so far as such homestead is concerned, by prohibiting its alienation by will.

2. In a case where a will undertakes to dispose of the homestead, but is void as to such homestead under the prohibitions of the Constitution, the widow is not deprived of her right of dower in such homestead because of her failure to dissent from the will under the provisions of section 1830, Rev. St. 1892, nor is she deprived of such right of dower in the homestead by accepting the valid provisions of the will made in her favor where the will is not so framed as to render it inequitable for her to claim her dower right in the homestead and at the same time insist upon the valid provisions of the will made in her favor.

3. Section 1834, Rev. St. 1892, entitles the widow to retain full possession of the dwelling house, in which her husband most usually dwelt next before his death, free from molestation or rent until she shall have her dower assigned and the statute furnishes ample authority for the heirs at law to initiate proceedings for the allotment to her of such dower.

COUNSEL

J. W. Archibald and D. H. Doig, for plaintiff in error.

D. U Fletcher, for defendant in error. The defendant in error sued the plaintiff in error in ejectment in the circuit court of Duval county for recovery of several lots of land lying contiguously to each other in the village of South Jacksonville, an unincorporated community in said county, containing in the aggregate one acre of ground. The trial was had upon the plea of the general issue, and resulted, after an affirmative charge by the court in favor of the plaintiff, in a verdict and judgment for the plaintiff for the recovery of the entire property and for $340 for mesne profits, from which judgment the defendant below, Catherine L. Palmer, sued out writ of error from this court.

At the trial the following undisputed state of facts was developed: That the plaintiff, Paul Palmer, was the son, and the defendant, Catherine, was the widow, of Joseph Palmer, who owned the property for some time prior to his death, in May, 1895, and who resided upon it, making it his home, for some years prior to and at the time of his death, with his wife, the said Catherine; that the property consisted of about one acre of land, and was not located in an incorporated town, the improvements thereon being the dwelling house of the said Joseph Palmer, and an inclosing fence. Joseph Palmer, shortly prior to his death, executed a last will, in which he devised to his wife, the said Catherine, various other parcels of real estate and certain personal property, and in which he bequeathed to his son, the said Paul, certain choses in action, and by a general clause in the will be devised and bequeathed all the balance of his property, real, personal, or mixed, wheresoever situated, which he then owned or that he might thereafter acquire and of which he should die seised and possessed, to the said Catherine, his wife, and to the said Paul, his son, share and share alike, in fee.

This will appointed the widow and son as its executors. It was duly probated, and the widow, Catherine, interposed no dissent thereto within a year after its probate, thereby accepting the valid provisions thereof in her favor. The widow, Catherine, continued to occupy the homestead premises in dispute after her husband's death until the recovery against her in ejectment herein.

OPINION

TAYLOR, C.J. (after stating the facts).

Various errors are assigned relative to the admission and rejection of evidence, but we deem them unimportant, and will proceed at once to a discussion of the merits of the real question at issue between the parties, basing the discussion upon the propriety of the affirmative charge given by the court to the jury, instructing them under the facts in the case, as stated above, to find the right of possession and property in the plaintiff.

To sustain this charge and the judgment consequent thereon, it is earnestly contended here for the defendant in error that the whole question is irrevocably settled by the decisions of this court in the case of Wilson v. Fridenburg, reported in 19 Fla. 461, 20 Fla. 359, and 21 Fla. 386. That case, in its several appearances before this court, involved a construction of, and was planted upon a construction of, the homestead provisions of the Constitution of 1868, and in the opinion (19 Fla. 461, text 466) it is expressly said that 'There is no provision in our Constitution giving a widow any right of homestead. Her right is as wife, and is confined to a power to prevent any alienation by the husband without the joint consent of his wife, and the exemption as homestead, in the language of the Constitution, accrues to the heirs of the party having enjoyed or taken the benefit of such exemption. As against such heirs, or as against any creditor of a deceased husband, she has no homestead right, simply because the Constitution does not in any way give it, unless she is an heir, and in this case she is not an heir under the statute, which in certain events makes her so. Her right here is confined to the general laws giving rights to widows, because such laws are not inconsistent with the exemption which accrues to the heirs. * * * But there is here a testamentary disposition of the whole estate of the ...