The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1882-06-27

Ine St1Lute OF 0eSCent6 ana tne law Oh DOVER In
the same manner as If NO homestead exemption
existed. This, as to an intestate estatel Whether
Ia such case testameutary disposition would be
effective, we examine hereafter.
AS the matter has been argued, however, in
the light of debts existing at the death of the
homestead owner, and as we think in view of the
conclusion we reach, that it is not improper to
state our conclusions in that aspect of the case,
We do so. We think the rule controlling the
disposition of the homestead property in that
event is the same as that which controls in the
event OF no Indebtedness, except perhaps, as to
the extent and degree of the estate which would
pass to the heir. This it is unnecessary to deter
mine here
There is no provision in our constitution giving
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 home
stead 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 deceased
husband, she has no homestead right simply be-
cause 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, be-
cause such laws are not inconsistent" with the
exemption which accrues 10 the heirs Without
this constitutional provision the widow alone is
protected in her right of dover in the husbands
real estate, while the heirs interest is subordinate
to the debt of the decedent. With this pro-
vision both are alike protected from the assault
of the creditor, the one by virtue of the consti-
tutiOnal homestead exemption accruIng to him.
the other by virtue of her right under the gen.
eral law controlling the rights of the widow in
the real estate of her deceased husband
But there is here a testamentary disposition of
the whole estate of the decedent embracing the
homestead in general terms. 1t certainly will
not be cOntended that the exemption of the
homestead repeals the statute authorizing and
regulating testamentary dispositions OF property.
1t might as well be contended that the statute Civ
ing DOVER in the real estate of the husband freed
from his debts, had the same effect We have
already stated that the widows right here is
that of dover, and that she has no constitutional
homestead right
Under the will the testator directs that she
" shall be paid quarterly until his youngest child
becomes twenty-one years of age, such a sum as
shall be necessary 10 support her in the style
in which we have lived for the five years next
previous to my death, and when my youngest
living child attains the age of twenty-O years,
my estate, both real and personal shall be d.
vlded equally between my wife and living child
or children, share and share alike"
We have here a testate estate wherein the tes-
tator, who is the husband, makes express pro-
vision considerable in amount for his wife, and
where such provision is of a character inconsst-
ent with the claim or right of dover of the wife.
Ii presents case where, under our statute, the
widow is put to an election whether she will ac
cept the provisions of the will or take DOVER
IA Fla, 354 Ala, 236; 2V. &B, 222; 2 Rop
on Leg, 414.) At the common law no time W as
fixed in which an election should be made Un-
der our statute, (McC.'s Dig, 475) the time is
fixed at within one year after the probate of the
will. Now, under the terms of the WILL the in
terest of the widow il is very apparent is of
different character from that which is incident
to her claim or right of dover. The fact of dis
sent or acquiescence is in no manner alluded to
in the proceedings before the Circuit Court or in
the record here. How then, can either admins
ter the law of the case except upon a presump-
tion, which, whatever its nature, may be con-
trary to the fact? In other words, the pleadings
arc framed with reference TO a homestead right
of the widow which never had any existence land
whether her right is as dowress or as the benefi-
cial object OF testamentary trust, one or the
other of which it must be, it is impossible to say
The appellee here maintains, if we understand
the matter, that the husband could devise the
homestead for the benefit of his wife and chill
dren, and that such an act is not an alienation
but is still effective to make the homestead right
subject 10 the provisions of the will for the rea
son that the persons who are protected by the
constitution suffer no loss of rights or interests
but are properly and completely cared for and
the executrix, the wife, the homestead is bound.
One case from Wisconsin is cited to sustain the
proposition: % Wis, 49, This was not the case
OF testameniary disposition of the homestead.
The husband there conveyed to trustee for the
benefit of his wife and children a part of his
homestead. The court held that the statute
providing that mortgage or other alienation of
homestead by the owner thereof, if q married
man, would not be valid without the signature
OF the wife. rendered the trust which was thus
attempted to be created void, held that the legal
estate passed to the cesfttis que trust that con-
yeyance directly by the husband to the wife
would have been void at law, but that such a
conveyance of the homestead to the wife, or to
the wife and children with the cO5ssent and dp-
prOodl Of the wJe, was not prohibited by the
statute
Thus we see that the deed here, while not
signed by the wife, was aSsented to by her, and
its effect was held to be to pass the present legal
title to her and her children.
testamentary disposition, such as we have in
this case, admitting for the sake of argument
that a will by general terms embraces the home
stead, has no such effect for the reason that the
wife and children take in subordination to the
creditor of the husband if the constitutional pro-
lection does not intervene, and the idea, as we
understand it. is that this is not an alienation for
the reason that the wife and children are pro-
tected, con1n7tttere Ggnuna lupO!
We do not understand any such result fol-
lowed the doctrine in the case from Wisconsin.
On the contrary, il was because no such result
followed that the deed, although not "signed" by
the wife, was made effective as not being an
alienation OF the homestead property prohibited
by the statute. The homestead interest was not
alienated from its intended purpose the good OF
the family Ii remained subordinate to it. But
however this may be, the authorities in point are
/ that the husband cannot devise the homestead.
The existence of such a right in the wife and
children, in this case in the children "s clearly
incompatible with the exercise of such power
over it by him. 100 Mass, 234; 81 Won't, 419
25 Texas, 72 Thomp on HON., S544.
From what has been said, our views as TO the
rights of the widow and the heirs, in this case
the children, under the constitution, we think
are disclosed so far as they are necessary 10 be
stated
An application of the law to the pleadings, as
we understand 1t and them, results in the con-
clusion, that the plea 10 a complete reply to the
case made by the bill. The case made by the
bill is that of mortgage executed by the wife
and executrix under the powers of the will of
the husband under the authority of the court
upon certain parcel of land and improvements
thereon. The relief sought is foreclosure of
mortgage and sale Of the land and improve
ments The plea is that the land sought to be
sold was the homestead fthe testator and family,
that he died leaving surviving him his widow
and three minor children, who have since his
death resided thereon. This plea sets up that
there was no such interest in the mortgagor in
the premises sought to be sold as was prayed for
by the bill, and accepting every fact stated in
the bill, and net denied by the averments of the
plea IS true, and the facts set up in the plea IS
true the result Is that the entire interest ia the
property mortgaged was in the infant children.
Il is insisted. however, that whatever interest