Samuel B. Stephens, et al., Appellants, vs. Rhoda E. Gibbes, Appellee, 14 Fla. 331

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 <smb£ years had elapsed. Is she compelled to abide by the previsions of the will through this failure ? We cannot better mswer this question than by using the language of- the Supreme Court of-Alabama, where-this question-arose under-tesection of their statute precisely similar to the-one now uufcf consideration.

That court says : “ The evil intended-1® In: obviated was the difficulty which previously existed of-ascestaining when and how an election was to be made'by widow. According to the course of equity law, the wkfer was entitled to an account before she was compelled to and a suit in equity was frequently necessary to compelas: election.

This seems to be the only change made by & statute in the existing law — -a fixed' and 'definite'term toe introduced within which she is compelled to signify her dissent to the will, and if this is not made, it then, if any prevision is made inconsistent with her right under the-sfcatefe. becomes obligatory upon her.” 6 Ala., 243. This deeisiáv. was subsequently commented upon and affirmed in twoother eases. 10 Ala., 991; 30 Ala., 331.

This statute of Alabama, passed in 1812, was evidea<%,~ derived from a statute of North Carolina passed’ in 1784, ¡Mé the decisions of the courts of North Carolina upon thhé statute are upon this question precisely in point. The statefe of North Carolina, instead of the words “ real and persajEai estate” in our statute, used the words “ real or personal estate.” This statute was considered by the Supreme of North Carolina in the case of Craven vs. Craven, 2 Dec. Eq., 338. In that case Mr.

Justice Gaston, speaking for the court, says: “ The Legislature by the act of 1784 su-asiitutes a new rule more absolute and universal than that ss,eognized at common law; they made every case of «a (testamentary disposition by a husband in. favor of his wife a-«as* ■of election, whether the intent that she should take it in liac •of her dower was expressed or not expressed, and whether St could be implied or could not be implied from the straMsass! and language of the will, and to remove all dispute as to the fact of her election, they declared her to have elected to take under the will unless her refusal so to take was manifested within a prescribed time by a solemn dissent in open court.

Unless she dissented, the will regulated the extent of her claims irpon the estate of her husband, and if she dissented the law prescribed what should be their extent. “ Justice and the repose of the community require that it should be ascertained as speedily as convenience will permit whether the lands of a deceased man in the hands of his heirs and devisees are or are not subject to dower. The law has defined the time and prescribed the mode when and how this fact can be certainly known.

The most obvious considerations of public policy forbid, without the clearest warrant, judicial expositions which will have a tendeney to defeat this great purpose of the law.” (See also 1 Dev. & Bat. Law Rep., 254; 2 Dev. Eq., 372, 539.) Decisions in Yii'ginia, Kentucky, Massachusetts, Maine and New York announce like principles and rules in the construction of their statutes, but we deem it unnecessary to do more than refer to them in this connection. 4 Kent.

Com. 59; 5 Call, 481, 351; 6 Leigh, 36: 4 Leigh, 152; 6 id., 461; 2 Dana, 341; 1 Dana, 203; 12 Pick., 150; 10 Pick., 507; 1 Met., 57, 73; 32 Maine, 132; 5 Paige, 446; 35 Barb., 483; 11 Ohio State, 389. This period of time having elapsed in this case without dissent filed, and there being such provisions in the will as bring it within the statute, the inchoate rjght of dower ceased to have any existence and the provisions of the will become obligatory.

Neither the executors, the other devisees or legatees, nor the creditors, are in any legal sense under an obligation to give the widow notice of the provisions of the will. The law presumes her knowledge of the will and its contents as well as her knowledge of her right of dower and its nature, and she is bound to know that if she omits for the space of one year to signify her dissent, she cannot claim dower.

The statute gives to the widow this time to inform herself of all the circumstances necessary to the exercise of a judicious and discriminating judgment, and if she neglects thus to do, she cannot be relieved of its consequences, unless her case is. brought within that class of cases where a Court of Equity extends its corrective influence on account of fraud, imposition, misrepresentation, or mistake.

Recollecting the early enactment of this statute, and that it was but part of a system introducing very elementary and material changes in the nature and extent of other estates at common law, as well as dower, and that it is a remedial statute, we do not well see how this conclusion can be avoided. All of these statutes are remedial in their character. Their enactment originated in the desire and necessity for curing the evils incident to the common law rules upon these subjects and their want of perfect adaptability to the changed civilization and government of the American States.

This being such a statute, we must so construe it as to correct the mischiefs which it was enacted to remove. What were tlio mischiefs which existed at common law, and at which this statute was aimed ? These mischiefs are apparent from the changes made by the statute. These changes were two in number.

The first change is in the fundamental rule controlling in the matter of election itself, viz : That no election was necessary, except in a case where there was a plain inconsistency between the will and the dower interest of the wife — in other words, such circumstances as rendered it necessary that the widow would be both taking under tlie will and against it at the same time, thus conforming our legislative change in the common law to the path indicated in the 9th Sec., 3 and 4 W. 4, c. 103, which was the remedy conceived by Parliament for the mischiefs attending the common law of elections in England.

Tom, .Law Die. 585. The second change is in fixing a time in which the dissent of the widow to the will shall be made known, and in which he right of election must be exercised, rather than leave her, as she was at common law, restricted to no time, the mischief of the system being that estates were delayed in settlementj (that others having interests under ■ the will, as well as the executors and creditors, were never certain as to whether the dower interest of the widow was excluded.

Any one at all familiar with, the judicial history of England, and of the United States, during the' time the doctrine of the common law prevailed upon these two matters, will readily acknowledge the very great mischiefs occasioned by the want of more fixed and certain rules in reference to the matter of election. The remarks of the Master of the Rolls in Brodie vs. Burry, 2 V. & B., 129, show this great uncertainty.

He says : “ If it were now necessary to discuss the principles upon which the doctrine of election depends, it might be difficult to reconcile to those principles, or to each other, some of the decisions which have taken place on the subject.” In this view our construction constitutes an effectual remedy for these evils. Besides, if this is not the effect of our statute, we are completely at sea when we endeavor to give it a construction conforming to the primary rules which control in the construction of statutes of this nature.

Under this statute, it is impossible that the practice prevailing in a court of equity upon the subject of election can obtain. If the effect of the failure to to dissent is in law an election to tahe the loill, that is an end of the matter, because a court of equity, except upon the ground of fraud, qr some other like ground, cannot give a construction which ■will defeat the plain result of the statute. And if the effect of the law is not such an election, it has no effect at all, as the whole matter is left just as it was before. But let us consider this ease briefly in that aspect.

What is the doctrine of election ? It is not a rule of positwe law, hut a rióle of practice in equity. The doctrine originates thus : Election involves choice — -choice involves knowledge, a knowledge both oí the facts and of the law ajtplicable to the subjects matter in reference to which the choice is to be made.

In the absence of either branch of this knowledge, as to both or either of the two subjects, it cannot as a matter of fact be said that a choice has been made between the two subjects, because the mind has not really acted with reference to the two subjects as to which it should elect, but as to two other subjects which the party believes exist as the subjects in reference to which his election is to be made.

A court of equity in such cases will permit the party who has thus acted in ignorance either of rights or facts, and who has thus failed to exercise his right of election, to exercise it when that knowledge is acquired, and will relieve him from an antecedent choice made. There are cases where the widow, having accepted the provisions of the will, is relieved upon the ground that the property is subject to debts then existing of which she had no knowledge at the time of her choice. Such are some of the cases cited, but they differ materially from this case.

While the rule stated is the general rule of practice, yet other circumstances, besides a knowledge of rights and an accurate knowledge of the comparative values of the two things which are the subjects of election, may be sufficient - to bind a person. 1 Ball & Beat. 24. These circumstances arise out of the original intention, acquiesenee in the acts of others, the effect of acts of the party having the right of election on the interests of third persons, and the lapse of time.

They are so infinitely varied and modified in different cases that no rule applicable to all can be laid down ; each must be determined on its particular grounds. 1 McClel., 541. What are the facts here ? The will made a bountiful provision. The widow expresses assent to the provisions of the will, accepts the personal property bequeathed to her under the codicil, and acts for four or five-years in entire harmony with its provisions. During this time she has frequent conversations „ with one of the executors as to the condition of the estate, and as to what will probably be her share.

These are the acts from which an election may be implied. On the other hand, while the bill fails to make such allegation, the plaintiff, in her testimony, states that she knew nothing about the nature of her dower rights, and that she had never been told of them until the year 1865. At this time the estate had suffered a loss amounting to not less than $150,000 from the emancipation of the slaves. It had become insolvent. Every act of the widow up to the time of this loss manifests acceptance of the will.

The election she would now make, if permitted so to do, would not be an election in reference to facts existing at the time she should have made it. It would, be an election -where the relative values of the two subjects had entirely changed from what they then were. Did a court of equity relieve her, it could not be upon any ground of misapprehension of her rights, or of facts as they existed from 1860 to 1865, but upon a ground of loss, occurring in the natural order of thing's.

In other words, a court of equity is here desired so to act as to establish a principle of insurance against loss from events subsequent to an election. Under the provisions of the will, the executors were expected to pay the debts of the estate from the income derived from the use of the property. “ For the purpose of paying my just debts, I desire my executors to keep my planting interest up for the space of seven years,” are the words of the will.

A creditor who, for this space of time, awaits the satisfaction of his claim, expecting payment from the income of the estate, and acts in conformity to the will, should not be made to abate his claipi on account of a loss, which neither he nor the widow foresaw — a loss, too, attributable to the results of a conflict pending at the time she had the right of election, and before it was exercised.

It is insisted that the act prescribing a time within which the widow was required to file her dissent to the provisions of the will was a statute of limitation when considered in reference to her dower, and that the act which we have construed was suspended by virtue of the act of December 13, 1861, which enacts, “ That the statutes of limitation now in force in, this State, in relation to civil actions of- every description bo, and the same are hereby suspended,” &c. The will in this case was admitted to probate on the 14th day of May, A. D. 1860.

Over one year had elapsed before the suspending statute was passed, and hence the claim w,as completely barred before the suspending statute was passed, so that even if a claim to dower was embraced in our statute of limitations, which is at least a doubtful question, the act of 1861 did not affect it, as that act contains a proviso to the effect that it shall not be construed so as to prevent any defendant from pleading said statute or statutes of limitation in any cause wherein the same shall have run before the passage of the act. Art. XY.

Sec. 3 of the Constitution of this State provides that “ all claims of widows which were not barred by the statutes of this State on the 10th day of January, A. D. 1861, shall be considered good and valid for the period of two pears from the ratification of this Constitution.” This suit was brought within two years after this ratification, and it is insisted that the claim of the . widow in this case is not barred. Any claim which the widow had to dower in this estate was barred by her own act anterior to this action of the convention. The claim for dower was completely barred. It had gone out of existence.

We do not think that it was the purpose of the convention to revive such a •claim once destroyed. Its intention was simply to suspend any limitation which might exist as to a claim of dower where third persons during that time had held adversely to plaintiff. It was,not its purpose or intention to set aside a voluntary election made by the persons themselves and givé them a right to make a second election under a new state of facts. In other words, it was not the intention of the convention to suspend, in all cases, the operation of this statute during that time.

It was its purpose to protect a claim for dower against any adverse possession during that time, and not to change the elementary character and nature of the ■ claim, for dower. It intended to affect the remedy where a claim for dower existed and had not been abandoned, but not to change the right or recreate a claim for dower which had been abandoned under the statute. The judgment is reversed, and the case is remanded with directions to enter judgment for the defendants.