Virginia-carolina Chemical Co. v. Ward

• Decision Date: 19 March 1921
• Citation: 88 So. 125,81 Fla. 358
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. et al. v. WARD.
• Court: Florida Supreme Court

88 So. 125

81 Fla. 358

VIRGINIA-CAROLINA CHEMICAL CO. et al. v. WARD.

Florida Supreme Court

March 19, 1921

Action by M. J. Ward against the Virginia-Carolina Chemical Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Widow's election repudiates will, but not authority of executors to sell. When a widow elects to take a child's part in her deceased husband's testate estate, such election repudiates the special provisions in such will for her benefit, but does not annul or repudiate the provisions of such will specially authorizing, empowering, or directing the executors named in such will to sell and convey specific property, though such election may entitle her to her child's part in the proceeds of such sale.

Widow electing to take child's part takes subject to valid provisions authorizing sale. Where it is alleged that a sale of decedent's land was duly made by his executors and trustees under his will, and this is not denied, the chancellor will not be held in error for sustaining exceptions to portions of an answer averring to the widow's claim of a child's part, subject to the widow's claim of a child's part, since, if the widow elected to take a child's part, she takes subject to the valid provision of the will authorizing the sale of property in the proceeds from which sale she may have the interest of a child's part.

Appeal from Circuit Court, Alachua County; James T Wills, judge.

COUNSEL

E. G. Baxter and W. S. Broome, both of Gainesville, for appellants.

Hampton & Hampton, of Gainesville, for appellee.

OPINION

WHITFIELD J.

In a bill of complaint brought April 1, 1919, by Ward, it is in substance alleged that he is the owner of described lands by purchase from the executors and trustees under the will of F H. Clyatt; that Ward paid $1500 for the said property and received a deed from the said executors and trustees, duly executed and acknowledged according to law on said 2d day of November, 1910, the same made under and by the power and authority given to the said executors and trustees under and by the terms and conditions of the last will and testament of the said F. H. Clyatt, deceased, which was duly admitted to probate in the county judge's court of Alachua county, Fla., the said court having jurisdiction thereof; that said deed was duly recorded upon the records of Alachua county, Fla., being filed on the 7th of November, 1910, and recorded on the 11th of November, 1910, in Book of Deeds No. 80, at page 396; that the said grantors, being then and there in the actual possession of the said property, placed your orator in the possession thereof, and your orator took immediate possession of the said property and has used and occupied the same, cultivated and improved the same, and has had the same enclosed, he having used and occupied the property continuously to the present time, and is now in the actual use and occupation of the said property, being open, notorious, adverse, and continuous; that the defendant corporation obtained judgments against Mrs. G. T. Jarrell upon which executions have been issued and levied upon an alleged undivided one-third interest in the described lands, and the property is being advertised for sale; that the said...