Serkissian v. Newman
| Citation | 85 Fla. 388,96 So. 378 |
| Parties | SERKISSIAN v. NEWMAN. |
| Decision Date | 10 April 1923 |
| Court | United States State Supreme Court of Florida |
Suit by Benjamin B. Newman against Amy M. and Fred P. Serkissian. From a decree for complainant against defendant Fred P Serkissian, the latter appeals.
Reversed.
Syllabus by the Court
Available to cotenants, tenants in common, or coparceners against all parties interested in lands to be divided. Joint tenants tenants in common, or coparceners may have partition against their cotenants, coparceners, or others interested in lands to be divided.
Widow having dower in real estate of deceased husband not joint tenant, tenant in common, or in coparcenary with deceased's children; if widow having dower exercises statutory privilege to take child's part, she becomes tenant in coparcenary with children of husband. A widow who has a dower interest in real estate of her deceased husband is not a joint tenant, tenant in common, nor in coparcenary with the children of the deceased. The statute gives her the privilege of taking a child's part in the estate, in which case she is counted as a child and takes an interest in fee. She becomes in such case a tenant in coparcenary with the children of her husband.
Election of widow to take child's part in husband's real estate must be exercised within one year from the date of letters of administration or executorship, and cannot be recalled and dower set aside; widow failing to elect to take child's part in husband's estate bound by her nonaction. An election on the part of a widow to take a child's part in the estate of her deceased husband must be done by some method which does not leave the election uncertain or subject to dispute, and must be done within one year from the date letters of administration or executorship are issued. When once exercised, the election cannot be recalled and dower set aside. It she fails to act, she is bound by her nonaction.
Unnecessary for widow to take action to secure dower which becomes vested by statute upon husband's death. It is unnecessary to take any action to secure her dower, the statute confers it upon her, and it becomes vested in the widow upon the husband's death.
Includes personalty of deceased husband's estate. Dower under the laws of Florida includes personalty of the deceased husband's estate.
Appeal from Circuit Court, Manatee County; George W. Whitehurst, judge.
John B. Singeltary, of Bradentown, for appellant.
Dewey A. Dye, of Bradentown, for appellee.
This is a suit for partition of 40 acres of land. The bill was brought by Benjamin B. Newman against Amy M. Serkissian and Fred P. Serkissian, who was her husband. The bill was filed in October, 1919. Mrs. Serkissian was adjudicated an insane person in November, 1919, and died in December of the same year. The suit proceeded against her husband, who was her sole heir at law, she having died without children.
The case as presented by the bill and answer, briefly stated, is as follows: George W. Newman died in February, 1904, seized in fee of the land involved in this suit. He left surviving him a widow, Laura W. Newman, who some years afterwards married John S. Andress. Newman also left surviving him six children and two grandchildren. They were the children of a son who had predeceased his father.
After the death of Newman his widow, with the consent of the other heirs, resided at the 'home on the land' for several years, and agreed verbally with the complainant, B. B Newman, representing his brothers and sisters, and in his own behalf, to elect a child's part in the estate of her husband in consideration of the transfer to her of certain articles belonging to the estate.
In December, 1908, the widow obtained letters of administration upon her deceased husband's estate. B. B. Newman obtained fro his brothers and sisters and from the children of a deceased brother all their interest in the land, which, with his one-eighth interest vesting in him by descent, gave him the ownership of an undivided seven- eighths interest, assuming that the widow had a child's part. Some time after the death of G. W. Newman, the time is not material, Amy Serkissian and her husband moved upon the land as tenants of Mrs. Laura Newman, and in November, 1910, obtained a conveyance from her and her husband of her interest in the land which she described as one-eighth undivided interest.
The conveyance was made to Amy Serkissian and executed by Mrs. Laura West Andress and her husband. In January, 1913, they executed to Mrs. Serkissian a quitclaim of all the right, title, and interest of Mrs. Andress.
From 1910 up to the removal of Mrs. Serkissian to the hospital, which occurred about November 19, 1919, the Serkissians occupied the lands, received the rent and profits, and in 1918 received the sum of $812.50 from the Tampa Southern Railroad Company in condemnation proceedings for a right of way through the land. Taxes on the land for the years 1912 to 1916, inclusive, were paid by B. B. Newman.
F. P. Serkissian still resides upon the land.
The prayer of the bill is for an accounting for the 'moneys received from the proceeds of said land' during the occupancy of it by the defendants, that the interests of the parties be determined and the defendants be decreed to be trustees for the complainant of seven-eighths of the money received from the railroad company, for a receiver to take charge of the fruit upon the place and other incomes, and other relief.
The decree rendered by the chancellor adjudged the land to belong to the complainant B. B. Newman, and F. P. Serkissian, that they were tenants in common, the complainant owing an undivided seven-eighths interest, and Serkissian an undivided one-eighth that the latter inherited from his wife, who took the one-eighth interest from the widow of G. W. Newman, who elected to take a child's part in the estate of her husband.
It was also decreed that the defendant, F. P. Serkissian, pay to the complainant the sum of $894.67, the same being seven-eighths of the amount with interest which was awarded to the owners of the real estate for a right of way, and the further sum of $29.49, being one-eighth of the amount of taxes with interest paid by the complainant upon the property, making a total sum of $924.16 to be paid by the defendant, F. P. Serkissian, to the complainant, who should have a lien upon the defendant's interest for the amount. It was ordered that partition be made of the property if it could be done without prejudice to the owners. The commissioners were directed to----
An attorney's fee of $500 was allowed complainant's solicitor, $100 for the master, and $10 to the guardian of Mrs. Serkissian.
The defendant did not pay the complainant the sum decreed which was $924.16 within 10 days; so the court appointed a special master to make...
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