Milam v. Davis (97 Fla. 916, 1929)

Whitfield, J.

In a suit brought by the appellees as complainants to have determined the rights of the parties under a will, it appears that D. P. Davis, having two minor children, on May 25, 1925, made a will, after which he married, and 1926 died leaving his wife and the two minor children surviving. The will (1) directed that the testator’s debts be paid; (2) made a bequest of $25,000.00 to the Children’s Home Society of Florida; (3) designated a guardian of the persons and estates of the two minor children; and (4) devised and bequeathed to named trustees, “all the rest and residue of the property of every kind and nature whatsoever, and wheresoever situated, belonging to me at the time of my death, or in which I have any interest, including policies of insurance on my life, ’ ’ with directions as to the disposition and uses of such residuary bequest, the testator’s two minor children^being among the chief beneficiaries. No mention of a wife or widow or of the dower or other rights or interests of the wife or widow of the testator is made in the will. The testator was unmarried when he executed the will, but subsequently married. The real contest is as to the proceeds of the policies of insurance on the testator’s life, amounting to $201,135.39. The life insurance policies were severally made payable “to the insured,” “to the estate of the insured” and “to the executors, administrators and assigns of the insured,” and had not been assigned or the beneficiaries changed prior to the testator’s death, except as provided in the will.

The decree adjudicated that the proceeds of the life insurance policies were not subject to the debts of the testator, or to the dower or other rights of the widow, or to the legacy to the Children’s Home Society of Florida, and that the proceeds of the life insurance policies should be used by the trustees as provided in the will. The executors and trustees, the widow, the Children’s Home Society of Florida, the creditors, and the testator’s father, who is a beneficiary under the residuary bequest, appealed, the minor children of the testator and their guardian being the appellees.

In the absence of a statute providing otherwise, the proceeds of life insurance policies payable to the insured or to his executors, administrators or assigns are subject to dower rights like other personal estate of the insured. See Act November 7, 1828; See. 3630, Rev. Gen. Stats. 1920; Woodberry v. Matherson, 19 Fla. 778; Smith v. Hines, 10 Fla. 258. See also Burdett v. Burdett, 26 Okla. 416, 109 Pac. R. 922; 35 L. R. A. 964; Sec. 5494, Comp. Gen. Laws 1927.

The following statutory provisions are to be considered:

“Every person of the age of twenty-one years, being of sound mind, shall have power by last will and testament in writing, to devise and dispose of his lands, tenements and hereditaments, of his estate, right, title, interests in the same in possession, remainder dr revision, and of personal property.” Act November 20, 1828; Sec. 1792, Rev. Stats. 1892; Sec. 3592, Rev. Gen. Stats. 1920; Sec. 5457, Comp. Gen. Laws 1927; See. 2269, Gen. Stats. 1906.

“When a husband shall die intestate, or shall make his last will and testament and not make provisions therein for his wife, as expressed in Sec. 5493, she shall be entitled to a share in the personal estate in the following manner, to-wit: If there be no children, or if there be but one child, she shall be entitled to one-half; but if there be more than one child, she shall be entitled to one-third part in fee simple, and such claim shall have preference over all others, and the said share shall be free from all liability for the debts of the decedent. ’ ’ Act November 7, 1828. The last 16 words of the statute were added by the enactment of Sec. 1831, Rev. Stats. 1892.

"In all cases in which'the widow of a deceased person shall be entitled to dower, she may elect to take in lieu thereof a child’s part.

‘ ‘ Such election shall be made within twelve months after the probate of the will or granting letters of administration or she shall be confined to her dower.

'"If a widow take dower she shall be entitled only to a life estate in the real property, to return at her death to the estate of her deceased husband for distribution; if she takes a child’s part, she shall have in the property set apart to her a fee simple estate in the real property, and an absolute right to the personal property set apart to her, with power to control or dispose of same by will, deed or otherwise.” Act February 8, 1838.

See Sec. 2, page 86, Secs. 1 and 2, page 87, Duval’s Compilation ; Secs. 2, 3 and 4, page 185, Thompson’s Digest and notes on Territorial decisions; Secs. 2, 3 and 4, page 476, McClellan’s Digest; Secs. 1831,1833, Rev. Stats. 1892; Secs. 2307, 2309, Gen. Stats. 1906; Secs. 2307, 2309, Florida Compiled Laws 1914; Secs. 3630, 3632, Rev. Gen. Stats. 1920; Secs. 5494, 5496, Comp. Gen. Laws 1927.

"Whenever any person shall die in this State leaving insurance upon his or her life, the said insurance shall inure exclusively to tbe benefit of Ms or her child or children, husband or wife, in equal portions, or to any other person or persons for whose use and benefit said insurance is declared in the policy; and the proceeds thereof shall in no case be liable to attachment, garnishment, or any legal process by any creditor or creditors of the person whose life was so insured, unless said policy declares that said insurance was effected for the benefit of such creditor or creditors.” Chap. 1864, Acts 1872. See Sec. 22, page 534, McClellan’s Digest; Sec. 2347, Rev. Stats. 1892.

The amendment added in 1897 is as follows:

“Provided, That when the insurance is for the benefit of the estate of the insured, or payable to said estate, the proceeds of the insurance may be bequeathed and devised by the insured to any person or persons, or for any uses, in like manner as he may devise any other property or effects of which he may be possessed, other than his homestead.” Chapter 4555,Acts 1897.

The proviso to the section was amended in 1903 so as to read as follows:

“Provided, however, That whenever the insurance is for the benefit of the estate of the insured or is payable to the estate or to the insured, his or her executors, administrators or assigns, the proceeds of the insurance may be bequeathed by the insured to any person or persons whatsoever or for any uses in like manner as he or she may bequeath or devise any other property or effects of which he or she may be possessed and which shall be subject to disposition by last will and testament. ’ ’ Chap. 5165, Acts 1903.

See Sec. 3154, Gen. Stats. 1906; Sec. 3154, Florida Comp. Laws, 1914; Sec. 4977, Rev. Gen. Stats. 1920; Sec. 7065, Comp. Gen. Laws 1927. A proviso in a statute may contain additional legislation and not merely limit the scope of preceding' provisions. See Burlingham v. Crouse, 228 U. S. 459.

The Act of 1872 and the amendments of 1897 and 1903 afford alternative provisions for the disposition of the proceeds of life insurance policies that are made payable to ,the insured or to his estate. One provision of the statute operates if the policies are not bequeathed and the other provision operates if the policies are bequeathed. In either case the policies are not subject to the debts of the insured.

Under the Act of 1872, being the first part of the present statute, insurance policies made payable to the insured or to his estate, if left so payable at the death of the insured, would inure to his wife and children in equal portions, but under the amendments of 1897 and 1903, policies of insurance payable to the insured or to his estate may be bequeathed as “other property or. effects,” that are subject to testamentary dispositions, and if so bequeathed, the first part of the statute, or the original Act of 1872, has no application because policies payable as here when bequeathed as permitted by the statute, pass under the will and not under the statute. If they pass under the will, they are like “other property or effects” of a married man, subject to the dower rights of his wife even as against his last will and testament if she duly asserts her dower rights.

Under the Acts of 1872, which is the first -part of the present statute, policies of insurance that are made payable to the insured or to his estate, if left so payable at his death, would inure to his wife and children in equal portions, and such policies so payable could not be bequeathed by the insured if he be a married man with a child or children. The manifest and only purpose of the amendments to the statute which constitute the proviso, is to authorize life insurance policies payable to the insured or to liis estate to be bequeathed by the insured. If such policies are bequeathed under the proviso of the statute, they cannot then “inure” to the wife and children of the insured under the preceding provision of the statute, and such preceding provision is not and cannot be made applicable to the policies. This is necessarily the intent, of the proviso, otherwise the proviso would be wholly ineffectual to accomplish its obvious purpose. If the policies are bequeathed as the statute expressly authorizes, they necessarily pass under the will and cannot “inure” under the statute. The wife of the insured cannot claim dower rights in insurance policies on the husbands’ life that are payable to the insured or to his estate, if a statute provides otherwise; but the wife can claim dower rights in such insurance as against the husband’s testamentary disposition of the insurance policies, and under the proviso of the statute, such policies may be bequeathed by the insured, thereby 'making inoperative the preceding provision of the statute that such policies shall “inure” to the wife and children of the insured.

While under the Act of 1828, insurance on the life of a husband for the benefit of his estate was like his other personal estate, subject to the statutory dower rights of his widow, the Act of 1872 exempted such insurance from debts of the insured and made it inure to his widow and children in equal portions, thereby securing to the widow an equal portion with each child of the insured as a substitute for her dower interest in such -insurance. The purpose of the Act was to secure such insurance to the widow and children.

The provisos added to the Act in 1897 and 1903, permit the insured to bequeath the insurance, when it is payable to him or to his estate, in like manner as he may bequeath his other property or effects that are subject to testamentary disposition. These amendments released such insurance from the absolute requirement of the Act of 1872 that it shall inure to the widow and children of the insured in equal portions, by authorizing the insured to bequeath such insurance in like manner as he may bequeath “any other property or effects,” “which shall be subject to disposition by last will and testament.” If the insurance payable as in this case is not bequeathed it inures to the -widow and children in equal portions under the first portion of the statute. If the insured bequeaths his life insurance as authorized by the proviso of the statute, it must be done in like manner as he may bequeath any other property or effects which shall be subject to his last will. The insurance is then subject to the laws relative to wills of personal estate; and under the Act of 1828, Sec. 3630, Rev. Gen. Stats. 1920, Sec. 5494, Comp. Gen. Laws 1927, if the widow dissents from the disposition made of such insurance by will, she may have her dower of one-third therein; or under the Act of 1838, Sec. 3632, Rev. Gen. Stats. 1920, Sec. 5496, Comp. Gen. Laws 1927, she may take a child’s part as defined by the statute, in lieu of dower. Under the Act of 1872 as amended, Sec. 4977, Rev. Gen. Stats. 1920, Sec. 7Q65, Comp. Gen. Laws 1927, such insurance is not subject to debts of the insured unless - it is expressly made payable to creditors. The statutes intend that whenever a husband shall die in this State having insurance upon his life payable to the insured or to his estate and leaving a widow and children, the widow shall share in such insurance equally with the children of the insured if the insurance is not bequeathed, and if it is bequeathed, but the disposition is not satisfactory to the widow, she may claim dower therein even against the will; and that in lieu of dower the widow may elect to take a child’s part as defined in the statute.’ In this case there being a bequest of the insurance and two children of the insured, the widow should take a third of the insurance proceeds payable as here, whether she takes dower or a child’s part. If the widow takes a child’s part instead of dower in her husband’s personal estate except his homestead exemptions and his life insurance, it would be subject to the husband’s debts. Benedict v. Wilmarth, 46 Fla. 535, 35 So. R. 84; Thompson’s Digest of Florida Statutes, page 185 notes. But by the terms of the statute of 1872, life insurance is not subject to creditors of the insured unless the policies so provide. See Section 4977, Rev. Gen. Stats. 1920; Sec. 7065, Comp. Gen. Laws 1927; Chapter 1864, Acts 1872; Pace v. Pace, 19 Fla. 438; Pittman v. Milton, 69 Fla. 304, 68 So. R. 658; Eppinger v. Canepa, 20 Fla. 262; Gilchrist v. Jeffcoat, 64 Fla. 79, 59 So. R. 243.

The first part of the statute, Sec. 7065, Comp. Gen. Laws 1927, makes life insurance policies that are payable to the insured or to his estate, inure exclusively to the wife and children of the insured if the policies are left undisposed of at the death of the insured; and it is expressly provided that such policies shall not be subject to the claims of creditors o£ the insured, unless the insurance “was effected for the benefit of such creditors.” Under the proviso of the statute, life insurance policies that are payable to the insured or to his estate or to his legal representatives, may be bequeathed by the insured in like manner as he may bequeath his other property or effects that may be disposed of by last will and testament. When policies so payable are bequeathed, they cannot inure to the widow and children under the statute; but being bequeathed in like manner as his other property or effects, they are subject to the statutes defining the dower rights of the widow as other property or effects of the insured would be. The provision that such policies may be bequeathed “to any person whatsoever or for any uses in like manner as” “any other property or effects * * * which shall be subject to disposition by last will and testament,” shows an intent that such bequest shall be subject to applicable laws regulating the right to dispose of property by last will and testament; and under the statute a husband cannot by will deprive his widow of her dower rights in his property or effects. Besides this, Sec. 7065 is intended to secure insurance policies to the widow as well as to children of the insured. Statutes do not protect the children against their ancestor’s last will and testament; and ordinarily the right to inherit may be cut off by will, but dower cannot be cut off by a will. The statute is designed (1) to secure policies of life insurance to the consort and children of the insured where the policies are for the benefit of the estate of the insured and are so left at the death of the insured; (2) to exclude creditors unless they are the beneficiaries of the policies; (3)'where the policies are payable to the insured or to his estate or legal representatives, to permit the insured to bequeath the policies in like manner as other property or effects of the insured that are subject to testamentary disposition, may be bequeathed. The last provision is designed to meet the varying conditions of the family and estate of the insured, subject to provisions of law that control the bequest of the property or effects of the insured. The dower statute gives the widow her dower rights in all of the personal estate of the husband that is left at his death; and under the statute such dower right if duly asserted must be satisfied even against the husband’s last will and testament, and the dower right is superior to the rights of creditors. The statute permitting life insurance policies payable as here, to be bequeathed, does not expressly or impliedly exclude the operation of the dower statute, but on the contrary permits such policies to be bequeathed only in like manner as other property or effects of the insured may be bequeathed, and property or effects cannot be bequeathed as against dower rights.

At common law, marriage alone did not cause a revocation by operation of law of a prenuptial will of a man, the wife having her dower rights notwithstanding the will. The widow may claim her dower rights as against the husband’s will, whether he left a child, or not, and whether the will was executed before or after the marriage. A will cannot exclude a widow from her statutory rights in her husband’s estate; but an heir may be excluded by will from participating in a testator’s estate other than his homestead real estate. See Herzog v. Trust Company, 67 Fla. 54, 64 So. R. 426.

Where several coexisting statutes relate to rights in the same species or classes of property, each shall be given its appropriate intended effect upon the property even though neither statute refers to any other and each is framed in general comprehensive language. For example the statutes relating to wills, dower, descent, administration, homestead and other exemptions, taxes, assessments, debts, penalties, forfeitures, bankruptcy, etc.

Under Sec. 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, if a testator “shall die in this State leaving insurance on his life, the said insurance shall inure exclusively to the benefit of ’ ’ his children and wife in equal portions, or to any person or persons for whose benefit such insurance is declared in the policy. But by the same statute whenever the insurance is for the benefit of the estate of the insured or is payable to the estate of the insured or to the insured, his or her executors, administrators or assigns, the proceeds of the insurance may be bequeathed by the insured to any persons whatsoever “in like manner as lie may bequeath or devise any other property or effects of which he may be possessed, and which shall be subject to disposition by last will and testament.”

The words “in like manner” have reference to the disposition of the insurance as “any other property or efi fects,” and not to the form of executing a will. The statute deals with property and not with the form of wills.

Under Sec. 3630, Rev. Gen. Stats. 1920, Sec. 5494, Comp. Gen. Laws 1927, a testator cannot bequeath his property against his widow’s dower rights without her consent or acquiescence. See Godwin v. King, 31 Fla. 525, 13 So. R. 108; Serkissian v. Newman, 85 Fla. 388, 96 So. R. 378. Where a decedent leaves a wife and more than one child, the widow, even against her husband’s will, is “entitled to one-third part in fee simple,” of “the personal estate” of her deceased husband. As against the children as his heirs at law, a testator may under the Act of November 20, 1828, Sec. 3592, Rev. Gen. Stats. 1920, Sec. 5457, Comp. Gen. Laws 1927, bequeath any of his personal property or effects, and by Sec. 4977, Rev. Gen. Stats. 1920, See. 7065, Comp. Gen. Laws 1927, as against his children as his heirs, he may bequeath the proceeds of insurance on his life that is payable to the insured to his estate or his executors, administrators or assigns, since there is no statute securing rights of children against a testator’s bequest of his personal estate.

When a person dies in this State leaving insurance on his life payable to the insured or to his estate or to his executors, administrators or assigns, such insurance by the terms of the statute inures, immediately upon the death of the insured, to his widow and children in equal portions, unless the insured under the statute makes a valid bequest of such insurance. When such insurance is not bequeathed by will, it “inures” to the widow and children of tlie insured under the statute, and it does not, at the death of the insured, become a part of the personal property of the estate of the insured for administration and distribution subject to the claims of creditors of the insured. See Bradford v. Watson, 65 Fla. 461, 62 So. R. 484.

The statutory rights given the insured where insurance policies are made payable to the insured or to his estate or to his executors, administrators or assigns, to, in effect, change the statutory beneficiaries of the policies, not by assignment, transfer or otherwise made effective in the life time of the insured, but by bequeathing the proceeds in like manner as he may bequeath any other property or effects that are subject to disposition by will, does not affect the operation of the statute which gives dower rights to the widow of the insured, since the statutes authorizing wills do not supersede statutes securing dower rights, and Sec. 4977, Rev. Gen. Stats. 1920, See. 7065, Comp. Gen. Laws 1927, is intended to be beneficial and not detrimental to the widow of the insured. See Castle v. Castle, 267 Fed. 521; Burdett v. Burdett, 26 Okla. 416, 109 Pac. R. 922, 35 L. R. A. (N. S.) 964. The beneficiaries of the policies under the will take as legatees and not by contract and the widow is entitled to dower as in “other property or effects” of the testator.

■ The beneficiaries were not named in the insurance policies as in Central Bank v. Hume, 128 U. S. 195, and under the statute the insurance does not “inure” to the wife and children of the insured until his death; and it does not then “inure” to them if a valid testamentary disposition is made of the insurance by the insured, though the insured may not bequeath such insurance against his widow’s dower rights duly asserted.

Statutory provisions for dower are not repealed or superseded or modified by implication even if there were any such implication in Section 4977, Rev. Gen. Stats. 1920; See. 7065, Comp. Gen. Laws 1927. See Godwin v. King, 31 Fla. 525, 13 So. R. 108.

In this case if the insured had not bequeathed the proceeds of the insurance on his life, which he left at his death, the statute would make such proceeds “inure .exclusively to the benefit of” his two children and his wife “in equal portions,” even though, the insurance policies were issued and the bequest was made before the insured was married to the present widow, because the statute refers to the time when the insured “shall die in this State leaving insurance on his life,” and makes the insurance proceeds when payable as in this case, inure, at the death of the insured, to the benefit of the wife as well as the children. The right of the insured under the statute to bequeath the proceeds of the insurance on his life in like manner as he may bequeath or devise any other property or effects of which he may be possessed, is restricted by the provision in the sentence, that such proceeds may be bequeathed as he may bequeath or devise any other property or effects “which shall be subject to disposition by last will and testament.” When the insured undertook to exercise his statutory right to bequeath the proceeds of the insurance policies, it could be done only as he could bequeath his “other property or effects” that were subject to disposition by last will, and his “property or effects,” were not “subject to disposition by last will and testament,” as against the dower rights of his surviving wife. The insurance policies on the husband’s life, payable as herein stated, were left so payable at his death, and under Section 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, such insurance, would “inure exclusively to the benefit of” his wife and his tw.o children “in equal portions, ’ ’ but for the will made by the insured under the statute which authorized him to bequeath such proceeds “in like manner” as “other property or effects” of the insured that are “subject to disposition by last will and testament” of the insured husband. The insured could under the statute of wills, Act of November 20, 1828, See. 3592, Rev. Gen. Stats. 1920’ See. 5457, Comp. Gen. Laws 1927, bequeath his property or effects as against his children as his heirs, but he could not' bequeath his wife’s dower interest in his “property or effects” as against her claim of dower rights therein. See Act November 7, 1828; Sec. 3630, Rev. Gen. Stats. 1920; Sec. 5494, Comp. Gen. Laws 1927. The same rule is applicable to Sec. 4977, Rev. Gen. Stats. 1920; Sec. 7065, Comp. Gen. Laws 1927, regulating rights in policies of insurance on the lives of persons who die in this State. Assuming that the testator could have changed the beneficiaries of the insurance policies by transfer, assignment or otherwise during his life so as to deprive his wife of any dower or other interest therein as in other personal property owned by him, yet he could not do so iy will under the statutes as against the widow’s dower rights. See Smith v. Hines, 10 Fla. 258.

The last clause of Sec. 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, should be given its appropriate intended effect as well as all the other provisions of the statute. The statute was intended to benefit the widow of an insured; and proceeds of the insurance policies payable aá here may under the statute be bequeathed in like manner as other property or effects, though such proceeds are not “subject to disposition by last will and testament,” as against the widow’s dower rights therein. Such dower rights notwithstanding the testamentary bequest, made under Sec. 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, is secured by another statute, Sec. 3630, Rev. Gen. Stats 1920; Sec. 5494, Comp. Gen. Laws 1927; but there is no statute giving the children of the insured an interest in his personal estate as against his testamentary bequest; and Section 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, itself excludes the creditors where they are not the beneficiaries of the policies. In Gilchrist v. Jeffcoat, 64 Fla. 79, 59 So. R. 243, the insured left no widow or child or will.

By the terms of the will, the legacy to the Children’s Home Society of Florida is to be paid before there can be a “rest and residue” of the testator’s estate “including policies of insurance on my life” that is devised in trust. It clearly was not intended by the testator that the insurance proceeds should be used to pay the legacy to the Children’s Home Society of Florida.

By the terms of the statute the proceeds of the insurance not effected for the benefit of creditors are not liable to the claim of the creditors. Pace v. Pace, 19 Fla. 438; Bradford v. Warson, 65 Fla. 461, 62 So. R. 484. It is contended that the provision of the statute making insurance on the life of a decedent exempt from claims of creditors of the decedent unless the insurance “was effected for the benefit of such creditor or creditors,” violates Sec. 1, Art. X, of the State Constitution in that the organic provision is self executing and limits exemptions to “one thousand dollars’ worth of personal property.” The proceeds of insurance on a decedent’s life where the policies are made and remain payable as in this case, do not since the act of 1812 become a part of the general assets of a decedent’s estate subject to the payment of debts; and it is competent for the legislature to provide that such proceeds being peculiar in their nature, shall not be subject to the claims of creditors without violating the limitations of the homestead provisions of Sec. 1, Art. X of the Constitution, such organic provisions not being applicable. It is peculiarly appropriate that .proceeds of life insurance policies made payable to the insured or to his estate or to his legal representatives should be by statute -protected from the claim of creditors and secured to the children and consort of the insured with statutory leave to the insured to bequeath such proceeds as the family circumstances require, when the statutory dower rights of the wife are not violated. The Constitution does not forbid such statutory regulations of the disposition of the proceeds of life insurance made payable to the insured or for the benefit of his estate. The will does not contemplate that the testator’s debts shall be paid from the policies of insurance on his life, even though he directs that his debts and liabilities shall be paid as soon as practicable after his death. The insurance policies were specifically bequeathed in trust principally for the testator’s children. The children as heirs, may have no statutory rights against the father’s disposition of his property by a valid will except as to his homestead real estate; but the dower, rights of a wife in any of the testator’s property or effects are not subject to testamentary disposition by the husband, if the wife duly asserts her dower rights as widow of the testator.

In McLean v. Fisher, 60 Fla. 331, 53 So. R. 614, the widow claimed as sole heir at law and not a dower right. In Sloan v. Sloan, 73 Fla. 645, 74 So. R. 407, the widow took under the husband’s will and did not claim dower. Pace v. Pace, 19 Fla. 438, arose before the proviso to Sec. 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, was enacted allowing the proceeds of the insurance policies made payable to the insured or to his estate, to be bequeathéd by the insured to any person or persons whatsoever 'in like manner as lie may bequeath, or devise any other property or effects of which he may be possessed, and which shall be subject to disposition by last will and testament.

In the Pace case it is held that where an insured dies leaving a policy of insurance payable “for the benefit of the estate of the insured, ’ ’ under the statute the only child of the insured takes the proceeds of the policy not as heir or distributee but as beneficiary of the policy under the statute, there being no widow. It seems that the beneficiary in that policy has not changed (see Eppinger v. Canepa, 20 Fla. 262), and there being no widow, the statute made the insurance proceeds “inure” to his only child, if the insured “shall die leaving insurance on his life” payable for the benefit of his estate, and it was held that the trustee in bankruptcy of the insured was not entitled to the proceeds. The language of the opinion in the Pace case should be considered in the light of the fact that no question of a bequest of the proceeds of insurance on the decedent’s life or of dower rights in such proceeds was involved, because there was no widow of the insured and the proviso to See. 4977, Rev. Gen. Stats. 1920, Sec. 7065, Comp. Gen. Laws 1927, authorizing disposition by will had not been enacted.

The cause will be remanded with directions to reform the decree so as to award the widow her dower rights in the proceeds of the insurance policies. It is so ordered.

Strum and Brown, J. J., and Johnson, Circuit Judge, concur.

Ellis and Buford, J. J., dissent.

Terrell, C. J., disqualified.

Brown, J.

(concurring) : Upon the reargument of this case, the question was raised in behalf of one of the appellants, the widow of the deceased, as to whether the statute, Sec. 4977, Rev. Gen. Stats.; Sec. 7065, Comp. Gen. Laws, invoked by the complainants in the court below, appellees here, applies to the case as made by the bill. The insistence is that by the language of the Act it is limited in its operation to the disposition of the proceeds of insurance policies insuring the lives of persons dying in this State, whereas the bill did not allege that D. P. Davis died in Florida and only alleged by the barest inference that he ever lived in this State. This inference in drawn from the allegation that the will was probated in Hillsborough County and his designation of himself in his will, which is made a part of the bill, as being ‘ ‘ of Hillsborough County, Florida. ’ ’ This characterization of the allegations of the bill appears to be correct. However, there was no objection by demurrer or otherwise to this weakness in the bill in the court below, and the appellants here filed their several answers to the bill without'alleging therein that Davis was not a resident of this State, or that he died beyond the borders thereof, and without rebutting in any way the inferential allegation in the bill that he was a resident of Hillsborough County, Florida. Furthermore, the pleadings of both complainants and defendants were all apparently framed upon the assumption that the disposition of the proceeds of the insurance policies was governed by the laws of this State, and the court below evidently acted upon this assumption. • On appeal, we think that it might well be deemed by this Court that the inferential allegation of the residence of the deceased above referred to was accepted as being sufficient by the defendants in the court below, appellants here, or so acquiesced in by them, as to amount to such a tacit admission of the fact that Davis was a resident of Florida at the time of his death, as to preclude any objection on that score at this stage of the case. However, this preclusion might not apply to the point made, that the bill totally fails to allege that Davis died in this State. But was an allegation of this nature essential? The answer to this question depends upon whether or not the insurance statute above referred to applies only to insurance on the lives of persons dying in 'this State. While freely acknowledging the difficulty of the question so raised, our view is that the statute is not so limited in its operation, and that the assumption upon which this case appears to have been tried in the court below, to-wit, that the disposition of the proceeds of the insurance policies left by the deceased at his death was governed by said statute, was correct.

True it is that the body of the statute begins with the words “Whenever any person shall die in this State, leaving insurance on his life, the said insurance shall inure,” etc. Thus the very first words of the Act appear, on first approach, to conclusively sustain appellant’s contention. Considered separately from the statute as a whole, there is no mistaking their meaning. They are plain enough. And yet, if the manifest intention of the statute is to be given effect, surely the Legislature did not mean what it so plainly said in these first few words. It could hardly have done so without defeating to a considerable degree the chief purpose of the statute, and in all probability the entire statute constitutionally considered. What the Legislature probably intended to say (transposing the position of the words “in this State”) was: “In this State, whenever any person shall die leaving insurance on his life, ’ ’ etc. Manifestly, the main purpose of the statute was to afford certain valuable protéction to surviving members of the families of any and all the people of this State who happen to die leaving life insurance not made payable to any designated beneficiary, regardless of any such adventitious circumstances as the place of death of the insured. If this statute should be construed as extending this protection to the widows and children of only those insured resident of Florida whose death occurs in this State and denying it to the widows and children of residents of this State who happen to die beyond its territorial boundaries, this would be an arbitrary and unreasonable discrimination, and would deny to the latter group the equal protection of the laws. To illustrate, let us suppose two farmers, each with large families and owing large debts, living in the northern part of Leon County, Florida, near the Georgia line, each having his life insured for $5,000.00 payable at death to their respective estates. Let us suppose further that each is stricken with serious illness resulting in death, one dying at home, but the other in the nearby hospital at Thomasville, Georgia, where he had been taken for an operation which it had been thought might save his life. If the quoted words of the statute be given their literal meaning and the statute given the construction contended for by appellant, the widow and children of one of these citizens would be protected in the collection of the full amount of the proceeds of the insurance policy, whereas the widow and children of the other would be entirely deprived of the protection which, by this statute, construed as -a whole, the Legislature manifestly intended they should have, and which right had attached, under the policy and the statute, before actual death took place. It is no uncommon occurrence for resident citizens of Florida to die outside of this State, while temporarily absent therefrom for various and sundry, yet entirely legitimate, reasons. Surely it was not the intention of the statute to deprive their families of the benefit and protection which the statute affords on any such ground as that. A study of the statute as a whole convinces us that the statute had no such intention.

The present statute, and the general public policy which it evinces and puts into operation, had its origin in the Act of 1872, Chap. 1864 of the Laws of Florida, which was entitled, “An Act to provide the manner in which moneys collected in life insurance shall be paid. ’1 It was practically the same as the present statute, except as to the proviso, which was added in 1897 and amended in 1927. The Act of 1897, being Chap. 4555, was entitled: “An Act to amend Section 2347 of the Revised Statutes of the State of Florida, relating to the disposition of the proceeds of life insurance. ’ ’ This Act is substantially identical with the original Act, down to the proviso which it added thereto, and which proviso related to bequeathing or devising the proceeds of insurance when it was for the benefit of the estate of the insured or payable to his estate. The Act of 1903 further amended the proviso. This Act, Chap. 5165 of the Laws of 1903, was brought forward in the General Statutes of 1906 as Sec. 3154, and in the 'Rev. Gen. Stats, of 1920 as See. 4977, and in the Comp. Gen. Laws of 1927 as Sec. 7065. The title of the Act of 1903 was: “An Act to amend an Act entitled ‘An Act to amend Sec. 2347, of the Revised Statutes of the State of Florida, relating to the disposition of the proceeds of life insurance,’ approved June 4, 1897, being Chapter 4555, Laws of Florida.”

The title of an act is a part of the act, and may be resorted to in aid of the construction of the act, as evidence of the legislative intent, and the whole statute, including the title, may be considered together in arriving at such intent. Jackson Lumber Co. v. Walton County, 116 So. R. 771, 95 Fla. 632, and authorities cited. There is nothing in the titles of any of these various acts which indicates any legislative intention to except from their operative effect upon “the proceeds of life insurance,” the proceeds of such insurance ■ held by residents of this State who die outside its boundaries. Per contra, these titles indicate a broad, statewide policy, “relating to the .disposition of the proceeds of life insurance,” without denial of its benefits to any class of our citizens or residents, or their families.

It is hardly conceivable that the settled public policy of the State for the past fifty-seven years, with reference to the disposition of life insurance proceeds, as exemplified by this statute, should have been intended to be inapplicable or ineffective if the insured, though a resident of this State and the insurance made payable in this State, happened to die outside the State. What reasonable relation exists between the manifest intention of the statute as to the disposition of the proceeds of the insurance and the mere place of death of the insured: The mere place of death should have no effect upon the contract of insurance or its collectibility within this State by those entitled to the proceeds, provided, of course, proof of the fact of death can be made. Why should it have any effect under the statute ? There is no reason why it should have; and to give it any such effect would be to go contrary to the manifest intention and main purpose of the statutes as a whole', and to also probably render the entire statute unconstitutional and void, as being based upon a purely 'arbitrary and wholly unreasonable classification. Thus it appears that while the first few words of the statute are plain in their meaning and unambiguous when considered alone, they become very doubtful and ambiguous when construed in connection with the context— the statute as a whole, including its title. In fact, the three words, “in this State,” as they are placed in the opening words of the statute, are inconsistent with and repugnant to the remainder of the statute, give it a meaning which was not intended, and must either be considered as stricken therefrom or as transposed to some other position in the sentence as hereinabove suggested, or the statute must fail in its purpose in many cases, or fall, altogether. It is the duty of the court to so construe the statute as to uphold its validity and effectiveness if possible to do so in the light of sound and applicable principles of statutory construction, some of which we will now consider.

The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. But as the courts cannot legislate, this intention must be gleaned or ascertained from the statute, its language, policy and purpose, and where the language, the meaning or intent of which is in dispute, is plain and intelligible, it must as a "general rule be given effect by the courts according to its plain and natural meaning. Board of Commissioners v. State, 118 So. R. 313. But' where some part of the language of a statute is of doubtful meaning when construed in connection with the body of the statute, or where an adherence to its strict letter would lead to injustice, to invalidity, to absurdity, or to contradictory provisions, the duty devolves upon the courts to ascertain the true meaning and intent of the statute in its entirety, and give effect to it, if this can be ascertained from a consideration of the statute as a whole, even though, in doing so, the spirit or reason of the law prevails over a portion of its letter. Especially is this true where the literal meaning of the questionable portion of a statute is absurd and apparently inserted through inadvertence. In order to give effect to the evident purpose of a statute as a whole, some phrase of which is repugnant to the remainder or imperfectly expressed, it is sometimes permissible to transpose the position of words and phrases so as to accord with, rather than defeat, the manifest legislative intent. And there are cases where, instead of applying qualifying -vvords and phrases to their next antecedent, as strict grammatical construction might require, they are applied distri-butively to that part of the subject matter to which they- appear by tbe context most properly to relate, and to which they are indeed most applicable. See Black Interpretation of Laws, 166 et seq.; Am. & Eng. Encyc. of Law, 2nd ed., 602, 612-3, 616; 36 Cyc. 1106-1116; Axtell v. Smedley, 59 Fla. 430, 52 So. R. 710; Curry v. Lehman, 55 Fla. 847, 47 So. R. 18; Davis v. Fla. Power Co., 64 Fla. 246, 60 So. R. 759, Am. Cases 1914 B. 965; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 So. R. 398; Goode v. State, 50 Fla. 45, 39 So. R. 461; City of Miami v. Romfh, 66 Fla. 280, 63 So. R. 440; State v. Beardsley, 84 Fla. 109, 94 So. R. 660.

It will have been noted that one of the provisions of this statute, that relating to the power of the insured under certain circumstances to prqvide" for the disposition of the proceeds of the insurance by will, expressly becomes operative, as to the power to make a will bequeathing the same, before the death of the insured. Can it be said that a will bequeathing the insurance proceeds made by the insured in accordance with the statute would be invalidated by reason of death subsequently overtaking the maker of the will while outside the State? Furthermore, if the literal meaning contended for be given the first few words of the statute, the legislature would be attempting the impossible. Many persons die in this State leaving’ insurance on their lives, the disposition of the proceeds of which cannot possibly be governed by this statute; citizens of other states, for instance, who hold insurance policies made and payable in such other states, who die while temporarily sojourning in this State. 32 C. J. 976, et seq.; 37 C. J. 364-5. Nor can the statute always be given effect even where the insured is a resident of this State at the time of his death, and dies within this State. See Equitable Life Ins. Co. v. McRee, 75 Fla. 257, in which ease the insurance contract was consummated in Alabama, while the insured was a resident of that State, and without reference to the laws of this State, and was made payable to the insured’s administrator, which was permissible under the law of Alabama. Afterward, the insured became a resident of Florida and died in this State. Payment by the Company to insured’s personal representatives was held proper, upon the ground that under these facts, the Florida statute did not apply.

The above considerations lead us to the conclusion that under the statute construed as above indicated, it was not incumbent upon the complainants in the court below to allege in their bill that D. P. Davis died in this State. This was not essential, in view of the other allegations in the bill, in order for them to successfully invoke the applicability and operative effect of the above quoted statute upon the proceeds of the insurance policies described in the bill.

The general rule is that the distribution of the proceeds of a life insurance policy is governed by law of insured’s domicile; subject to certain exceptions, as in the McRee case above cited, where the contract was consummated in another state and made payable in accordance with its laws. See 7 Cooley’s Briefs on Ins., 6333, 37 C. J. 365, and Pace v. Pace, 19 Fla. 438.

We come now to the consideration of the claims made by the defendants in the court below, of the right to enforce payment of their respective claims out of funds realized from the collection of said insurance policies. And first, as to the claim of the widow of the insured to a dower interest in said fund.

The precise question presented is: Does the widow’s statutory right of dower in the “personal estate” of her deceased husband attach to the proceeds of insurance policies on his life, payable to the insured, or his estate, or his personal representatives, where he has made testamentary disposition thereof to a trustee for the benefit of his father and his children by the terms of a will to which she has signified her dissent ?

In considering this question, it might be well to look at the legal background as it exists independently of the above quoted statute.

If there were no statute on the subject, the question as just propounded should undoubtedly be answered in the affirmative; because the various policies and their proceeds, being made payable, some to the insured, some of them to. his estate, some to his administrators and assigns, and one to his executors, administrators and assigns, and none of them having been assigned by the insured, nor the beneficiaries changed by arrangement with the insurors under terms contained in the policies, if there were such, would all have been assets of his estate at his death, and hence subject to dower and distribution.

In the absence of statutory provisions the contrary, it seems to be well settled that where a life insurance policy is made payable to the insured himself or to his estate, or to his executors, administrators or assigns (without any provision that it is so made payable for the benefit of any named beneficiary), and the policy is not assigned or transferred or the' beneficiary changed under the terms of the policy by the insured before his death, the money accruing on the policy at his death, and indeed the policy itself, becomes a part of his estate, like any other chose in action, payable to him or his estate, and hence assets in the hands of her personal representatives. See 7 Cooley’s Briefs on Ins., 2nd Ed., 6335 et seq., 37 C. J. 565, and cases cited. Thus it was held in Gilchrist v. Jeffcoat, 64 Fla. 79, 59 So. R. 243, that where the husband took out a policy on his life payable to his wife, and, if he survived her, to himself, and his wife died before he did, the policy never having been assigned or bequeathed by the husband, upon the death of the latter, leaving neither wife nor chil-' dren surviving him, the proceeds of the policy become a part of the deceased husband’s “general property,” and hence subject to his debts. It was said in that case, in the opinion by Chief Justice Whitfield: “The purpose of the statute is to provide for the wife and children of the insured and not primarily to exclude creditors where there is no wife or children or persons specially designated as beneficiaries.” And in McLean v. Fisher, 60 Fla. 331, 53 So. R. 614, it was held that where a policy is made payable to the assured, his executors, administrators or assigns, it is tantamount to being made payable to his estate. It was further held that, under the statute, the proceeds of such a policy could be bequeathed by will of the insured. This is in line with prevailing authority. 7 Cooley’s Briefs on Ins., 6378, 37 C. J. 87. In Sloan v. Sloan, 73 Fla. 345, 74 So. R. 407, it was held that an insurance policy made payable to the insured, his executors, administrators and assigns, may be bequeathed as a part of a general residuary legacy of “all my other personal property.” It was stated in the opinion that a policy so made payable may be classed “as property that may be bequeathed in like manner as any other property or effects.” We think it is clear, therefore, that, in the absence of any statute such as ours providing otherwise, and in the absence of any assignment thereof or change or a designated beneficiary by the’ insured in his life time, policies of life insurance, and the proceeds collected thereunder, which were made payable as the policies in this case were made payable,. would upon the death of the insured become personal assets of his estate and subject to the dower rights of the widow in “the personal estate” of the deceased husband under Sec. 5494 Comp. Gen. Laws, 3630 Bev. Gen. Stats. This was in substance the holding in Burdett v. Burdett, 26 Okla. 416, 109 Pac. R. 922, 35 L. R. A. (N. S.) 946, cited in behalf of the appellant widow, It appears,. however, to be well settled that, as to such class of.policies, a bona fide assignment thereof by the insured during his life would be upheld as valid and enforcible, he having the right to assign away his interest and title therein the same as with his interest in any other chose in action. The rule appears to be well settled that such policies may be assigned by the insured without the consent of his wife or any other person. Cooley’s Briefs on Ins., Vol. 2, 1784, 1804, citing many cases. (A different rule, however, applies to a policy payable to a named beneficiary and containing no right in the insured to change the beneficiary.) For much the same reasons that support the rule above stated with reference to the power of the insured, under the class of policies referred to; to make a valid assignment of the policy, it is also generally held that in the absence of statute or if there be no statute to the contrary, he can dispose of the same by will. Cooley in his Briefs on Ins., Vol. 7, p. 6378, expresses the general doctrine thus: "As the proceeds of a life policy, payable to the executor, administrator or assigns of the insured, become a part of insured’s estate on his death, they may be disposed of by will.” It appears, therefore, that if we had not had any statute on the subject such as that hereinabove set forth, the policies involved in this case, not having been assigned and not having been payable to a designated beneficiary, the insured would have had the power to dispose of the proceeds of such policy by will, as he did do; but it would also follow that the widow of the insured, the provision made by the will not being satisfactory to her, would have had the right to dissent thereto, as was done in this case, and take dower in such proceeds as part of the "personal estate” under our dower statute, regardless of the provisions of the will otherwise bequeathing the same. Such was the holding in the Oklahoma case of Burdett v. Burdett, supra, where no such statute as ours was involved.

The question here is, does our insurance statute operate to change the power, or the effect of the exercise of the power, of the insured to dispose of the proceeds of life insurance policies, made payable to him or his estate, by will, subject to the widow’s right of dower, as such power existed before the statute was adopted and as would certainly exist now if there were no such statute! This has proven a very difficult and perplexing problem and has given the writer and the other members of this Court considerable labor and concern. It has been very ably argued, and reargued, by able counsel on both sides. I was at first inclined to think the above question should be answered in the affirmative, but I have come to doubt the correctness of my original view.

The first part of the statute provides that the proceeds of such policies shall, on the death of the insured, go to the widow and children equally. But a proviso was added later which says that, as to policies payable to the insured or his estate, the insured may dispose of the proceeds of same by will as he could any other property or effects subject to disposition by last will and testament. This appears to leave the power of disposition by will, and the effect of its exercise, just where it was before the statute, if the insured sees fit to exercise such power. That is, if the insured elects to direct the disposition of the proceeds of the insurance by will, the matter of such disposition is lifted out of the statute, the statutory disposition no longer applies, and the insured deals by will with the proceeds of such insurance just as he sees fit, in the same manner and with the same effect as he would “any other property or effects subject to disposition- by last will and testament, ’ ’ just as he conld have done before the statute was enacted and with the same effect. But, it is said, the statute repeals the right of dower in the proceeds of insurance, and such right no longer exists. This was my original view. Undoubtedly, the effect of the statute without the proviso is to supersede or suspend the operation of the dower statute on the proceeds of insurance policies, by making a disposition thereof somewhat different from that of the dower statute, but the proviso excepts from the operation of the statute those policies which are made payable to the insured or his estate and which the insured elects to dispose of by will as he would any other property or effects, thus putting such policies and their proceeds where they were before the statute was enacted and where they would be if there were no such statute, and hence reviving the operation of the dower statute thereon. This construction is in line with the usual function of a proviso, which is to except something from the enacting clause which would otherwise be within it. So. Bell Tel. Co. v. D’Alemberte 39 Fla. 25, 21 So. R. 570; Lake County v. State, 24 Fla. 263, 4 So. R. 795; State v. Duval County, 23 Fla. 483, 3 So. R. 192. This line of thought, developed as it is with so much cogency by Mr. Justice Whitfield in his able opinion, has brought me to a different viewpoint, and has caused me to concur in his opinion, and the conclusions therein reached.

Strum, J.

(concurring) : I concur in the matters of law discussed in the foregoing opinion by Mr. Justice Brown, but I have all along been of the opinion that the decree appealed from should be reversed.

Whitfield, J., and Johnson, Circuit Judge, concur.

Johnson, Circuit Judge

(concurring) : Prior to the enactment of Chap. 1865, Laws of Florida, Acts of 1872, the proceeds from, life insurance policies, where such policies were made payable to the insured, or to his estate, or to his executors or administrators, became a part of the personal estate of the insured upon his death. Upon the death of the insured the proceeds became subject to the payment of debts of the insured, and also became subject to the laws of descent and distribution of decedent’s estates. And we must also hold to the opinion that such insurance was also subject to disposition by last will and testament, subject, of course, to the widow’s dower and to the rights of creditors after dower was satisfied.

As we see it, sentiment crystalized against the right of creditors to come in and subject the proceeds of life insurance to the payment of the debts of the deceased where children and a wife or husband survived. To meet this situation the Legislature of 1872 enacted Chap. 1865, Laws of Florida. It is our opinion that the primary purpose and intent of the Legislature in passing this Act was to prevent the creditors from taking the proceeds of life insurance of a deceased. The primary purpose could not have been changing only the widow’s share from dower to a child’s part. Frequently the only appreciable estate a husband leaves is the proceeds of life insurance. This fact is common knowledge. Frequently the widow is left with small children. These facts were undoubtedly known to the members of the Legislature passing this Act. To say, after a careful analysis of Chap. 1865, Acts of 1872, and the acts amendatory thereof, that it was the intent of the Legislature to fix the law so that the widow would be left entirely out of participating in his life insurance if the husband happened to so will, regardless of her condition in life and the number of small children she might have, as we see it, would be a violent and arbitrary construction.

Now there are certain fundamental rules which should be observed in construing a statute:

In construing and applying a statute, the language used, the subject regulated, the purpose designed to be accomplished, and the means adopted for accomplishing the purpose should be considered to ascertain the true and lawful legislative intent, which alone has the force of law. Tylee v. Hyde, 60 Fla. 389.

In construing and applying a statute, the main object is to effectuate the valid legislative intent. In ascertaining this intent as to the subject matter upon which the law operates its language and purpose should be considered. Snowden v. Brown, 60 Fla. 212.

The legislative intent is the essence and vital force of a statutory enactment. State v. Patterson, 67 Fla. 499.

Chap. 1865, including the title, reads:

An Act to provide the manner in which moneys collected in life insurance shall be paid.

Section 1. That when any person shall die in this State leaving insurance upon his or her life, the said insurance shall inure exclusively to the benefit of his or her child or children, husband or wife, in equal portions, or to any other person or persons for whose use, and benefit the said insurance is declared in the policy; and the proceeds thereof shall in no case be liable to attachment, or any legal process by any creditor or creditors of the person whose life was so insured, unless said policy declares that said insurance was e