Wax v. Wilson

• Decision Date: 06 March 1958
• Docket Number: No. 57-312,57-312
• Citation: 101 So.2d 54
• Parties: Rose WAX and Minnie Rosenberg, Joseph Bergman and Betty M. Bergman, Appellants, v. Minnie Viola WILSON, also known as Minnie V. Wilson, a single woman, Victoria Crawford Wilson, a single woman, individually and as Administratrix de bonis non of the Estate of Fred Douglas Wilson, also known as Fred Wilson, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 54

101 So.2d 54

Rose WAX and Minnie Rosenberg, Joseph Bergman and Betty M. Bergman, Appellants, v. Minnie Viola WILSON, also known as Minnie V. Wilson, a single woman, Victoria Crawford Wilson, a single woman, individually and as Administratrix de bonis non of the Estate of Fred Douglas Wilson, also known as Fred Wilson, Deceased, Appellees.

No. 57-312.

District Court of Appeal of Florida, Third District.

March 6, 1958.

Rehearing Denied April 14, 1958.

Irving F. Kalback and Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, and Richard J. Thornton, miami, for appellants Rose Wax and Minnie Rosenberg.

Mervyn L. Ames, Miami, for appellants Joseph Bergman and Betty Bergman.

Marshall N. Feuer and Carr & Warren, Miami, for appellee Victoria Crawford Wilson.

PEARSON, Judge.

This is an appeal from a final decree of foreclosure. The appellants Rose Wax and Minnie Rosenberg were plaintiffs and holders of a first mortgage. Joseph Bergman and Betty M. Bergman have joined in the appeal. They are the holders of a second mortgage. The appellee, Victoria Crawford, is the widow, and administratrix of the estate, of Fred Wilson, decased, and she has filed cross assignments of error.

The paragraphs of the decree which are necessary to an understanding of the points raised upon appeal are as follows:

'2. That the defendant, Victoria Crawford Wilson, was the wife of Fred Douglas Wilson, also known as Fred Wilson, at the time of his death, and is entitled to a dower interest in his estate; that such dower interest is superior to the right of the plaintiffs herein and superior to the right of the other defendants herein; that such dower interest is not encumbered by the mortgage being foreclosed in this suit.

'10. (a) It is further the opinion and ruling of this court that the only interest claimed by Victoria Crawford Wilson, individually, in the property being foreclosed is her dower interest and that, therefore, her maximum interest in the said property is one-third (1/3) of the purchase price realized upon foreclosure sale. Accordingly, it is hereby ordered that her dower interest in transferred from the real estate to the proceeds realized upon foreclosure sale thereof. Moore v. Price, 1929, 98 Fla. 276, 123 So. 768. Victoria Crawford Wilson shall deliver possession of said premises to the purchaser thereof. (b) However, this court intentionally refrains from deciding whether or not Victoria Crawford Wilson is entitled to have her dower interest set apart or applied to the proceeds from the sale of this property. It is my opinion that this matter is within the concurrent jurisdiction of the County Judge's Court and that it should be determined with regard to the entire estate of Fred Douglas Wilson, of which that court has jurisdiction, rather than On the Basis of Individual Parts Thereof. There is admitted into evidence in this case a copy of Victoria Crawford Wilson's application to the County Judge to set aside dower in numerous parcels of real estate of which this parcel is one. In the event that the County Judge decides that her dower should be assigned to other property and not to the proceeds received from the sale of the real estate here involved, then the amounts retained by the Clerk in the Registry of the Court to satisfy her dower interest will not inure to her benefit. Under such circumstances the retained portion of the sale proceeds will be applied to the interests of the other parties hereto, including both the first and second mortgagees, and the estate of the decedent Fred Douglas Wilson as to any excess above the first and second mortgage.

'11. In the event plaintiffs are not the purchasers of said property upon the sale, the Clerk shall retain in the registry of the court one-third (1/3) of the purchase price (less costs and plaintiffs' attorneys' fees) subject to further order of this Court as aforesaid, and shall disburse the remaining two-thirds (2/3) as hereafter ordered by this Court.

'12. Plaintiffs and the defendants Bergman as second mortgagees have claimed that defendant, Victoria Crawford Wilson, individually, is not entitled to dower in the subject property, on the grounds of estoppel. It is claimed that she has forfeited her right of dower under Statute of West-minster II, 13 Edward I, Chapter 34, said statute having been adopted as the law of Florida by § 2.01, Florida Statutes (F.S.A.), and second, that she is estopped upon equitable grounds. It is the ruling of the Court that the Statute of Westminster II does not apply in the State of Florida because it has been impliedly repealed by § 65.04 of the Florida Statutes (F.S.A.) which makes adultery grounds for divorce. It is conceded that Victoria and Fred were never divorced on any grounds. As to estoppel on equitable principles, it was proved beyond question that Fred Wilson and Minnie Wilson lived as man and wife, and so represented themselves to the public, for a period of approximately seventeen years, and that defendant, Victoria Wilson, had full knowledge of the situation. Victoria left Fred in 1932, went to New York, and never again lived with him as husband and wife. However, she made a trip to Florida every other year and saw Fred Wilson upon each occasion. Therefore, her conduct was not such to create an equitable estoppel.'

Appellants contended, first, that 13 Edward I, c. 34 (Statute of Westminster, II, 1285) being applicable, it was a bar to Victoria Crawford Wilson's claim of dower, second, that Victoria Crawford Wilson was barred by equitable estoppel against her claim of dower. Appellee urged that the chancellor erred by providing that the clerk of the circuit court should retain in the registry of the court one-third of the purchase price (less costs and plaintiff's attorney's fees) subject to further order of the court. We have examined other assignments of error argued by appellant and by appellee as cross-appellant and find that only the points enumerated require discussion. Such remaining assignments of error are denied except as affected by the points discussed.

That portion of the final decree holding that the Statute of Westminster II, supra, is not applicable in the State of Florida...