Stephens v. Gibbes (14 Fla. 331, 1873)

WESTCOTT, J.,

delivered the opinion of the Court.

The methods of assignment and admeasurement of dower,, the means by which it was barred, and the remedies for its recovery, as they existed in England at the time of the establishment of the independence of the American Colonies, like the rules of descent, law of primogeniture, and system of entails, were inconsistent with the views of the fathers of the Republic upon these subjects, and but poorly adapted to the wants and requirements of the new society. As there was no place for entails and the law of primogeniture, in a community where a general distribution of property was-desired rather than its concentration in the hands of an aristocratic class, so in a community where it was desirable that the wife might speedily come into the possession of her dower interests, and the estate be settled, there was no place for' the recovery of • possession through the tedious process of an. assignment under a writ of dower unde nihil habetr and a subsequent tedious action of ejectment to recover possession.

Not only was the method of assigning dower, and obtaining possession of the estate so assigned, secured by a more speedy process under these statutes, but other statutes regulating the matter of election between dower and testamentary bequests and devises, both as to the circumstances under which an election was required to be made and the time in which it was to be made, were adopted. These changes, affecting the estate of dower in its various aspects, were co-temporary in many of the earlier States with the more elementary changes in the matter of descents, and they constitute but parts of a new system, each several part being so eonceived as to make a consistent whole.

At the common law no time was fixed within which an election was to be made. Hence, the determination of this question depended very little upon the space of time which had elapsed after the death of the testator. There was really little safety in winding up an estate. Parties having beneficial interests under the will were delayed, and even when they did get possession the tenure by which it was held was very uncertain, as it might at any time be brought in conflict with a claim for dower, a claim which was paramount to the will, to their claims, to the claims of creditors, which would prevail even against the alienee of the heir, and as to which there was no controlling statute of limitations as in ordinary civil actions. Indeed, so highly favored was the estate of dower at the common law, that it occasioned Lord Bacon’s remark that “ it was a common by-word in the law that it favored three things — life, liberty, and dower.” The statute in this State, which changed the rule of election, is as follows:

“ When any person shall die intestate, or shall make his last will and testament, and not therein make any express provision for his wife, by giving and devising unto her such part or parcel of real and personal estate as shall be fully. satisfactory to her, such widow may signify her dissent thereto in the Circuit or Probate Courts of the county wherein she resides (and if there be no court in the county, then to either of said courts in the next adjoining county,) at any time within one year after the probate of such will, and then,, and in that case, she shall be entitled to dower in the following manner, to-wit,” &e.

Following this section is another, which defines what shall be the interest of the widow in the personalty in .testate estates where she dissents, as well as in intestate estates, but its insertion is not material.

This statute may be divided into two. parts : First, It defines the extent and nature of the estate of dower, whether the husband dies testate or intestate. Second. In case the husband died testate, and makes express provision for his wife in his will, it fixes a time within which she must dissent thereto, and assert her claim to dower.

While we do not. express an opinion as to whether any the most minute provision in a will for the wife would be within the meaning and intent, of the statute, yet there can be no question in this case that the.“ provision ” is of such charac, ierasbrings.it within the statute. The will directs that the planting interest shall be kept up for seven years for the purpose of paying the debts of the testator, and after payment of debts it directs the whole estate to be divided between the wife and two children, share and share alike.

• Independent of the statute, the widow in such a case as this would have been put to an election whether she would accept the provisions of the will or take dower, because the claim of dower is here inconsistent with the will. 6 Ala., 24; 2 V. & B., 222; 2 Rop. on Leg., 414.

The will was admitted to probate on the 14th of May, A. D. 1860,, and the widow signified her dissent .to its .provisions by filing a bill in the Circuit Court of Gadsden county-on the 3d day of February, A. D. 1869. Instead of signifying her dissent,, therefore, within one year, as required by the statute, she failed to do so until after nearly