Elizabeth A. Brokaw, Appellant, vs. Alexander McDougall, et als., Appellees, 20 Fla. 212

Tub Chief Justice delivered the opinion of the court. The first ground of alleged error in the decree is the overruling of defendant’s demurrer “ to so much of complainant’s bill as prays that she may be required to elect to take either her dower or a homestead in the real estate mentioned,” the cause of demurrer being that complainants have not stated a case entitling them to such relief. There are other prayers in the bill, the principal one being for a partition, and as to that the bill states a proper case for relief.

A demurrer must be grounded upon a “ short point ” upon which it is clear the bill would be dismissed at the hearing. Brooke vs. Hewitt, 3 Ves. Jr., 253; Verplanck vs. Caines, 1 John’s Ch., 57; Earl of Suffolk vs. Green, 1 Atk., 450; Story’s Eq. Pl., §§526, 528. Verplanck vs. Caines, presenting this identical question, says : “ A demurrer must be founded upon some certain and absolute proposition, destructive to the relief sought for.” The result is that a demurrer is not allowed to an alternative prayer, if any other relief prayed may be granted. We find no error in overruling the demurrer.

The second alleged ground of error is the decree of the Chancellor that defendant “ as widow was not entitled to a homestead estate in the lands and tenements mentioned in the hill.” It was decided by this court in Wilson vs. Fridenburg, 19 Fla., 461, that the exemption of the homestead provided for in the Constitution of this State, Art. IN, is ex. emption from forced sale for the debts of the owner who is the head of a family residing in this State ; and that this exemption of the homestead from such sale is all that enures to the heirs of tli.e owner upon his decease.

It was also held that the language ot the article, the homestead “shall not be alienable without the joint consent of husband and wife, when that relation exists,” operated to prevent any alienation or other testamentary disposition of the homestead by such head of the family who may die leaving a widow and children. It was further held that this exemption of the homestead from liability to pay debts and prohibiting such alienation,, so extended in behalf of' the heirs, did not confer any new right of property or tenure upon the widow, in the homestead, either as to the heirs or as to the creditors.

That without this exemption clause the heirs were not protected from creditors while the widow was protected by law in her right of' dower; while under this homestead exemption the heirs are protected and no right is taken away Ifom the widow, her right of dower under the general law being unaffected by the constitutional clauses referred to.

The rights of the widow and children are therefore not controlled or qualified by the provisions of the will so far as the homestead property is concerned, and in that respect the title descends, according to the law regulating descents, to the heirs, subject to the dower rights of the widow, as though no will had been made. Respondent here, referring to the ruling of this court-in Wilson vs. Eridenburg, very properly asks that the decision in that case, as respects the status of the widow, be reconsidered.

With appropriate defei’ence to the conflicting opinions of members of the bar upon the question we have again examined the question, but with the lights before us we are unable to reach a different conclusion in regard to the rights of the widow. The remaining ground upon which it is claimed that- the decree of 28th September, 1882, should be reversed is, that it erroneously set aside and quashed the report oí' the commissioners, allotting and assigning dower to the defendant.

The report of the commissioners assigned to the widow the lot numbered one in the plat accompanying the report, “ containing ten acres, more or less, and on which is situated the dwelling-house, out-houses and improvements, occupied by the said P. B. Brokaw, last before his death.” It assigns to Eliza Brokaw, one of the two surviving heirs, lot Ho. two, containing fifty-three acres and a fracfion, and lot thirteen in the north addition to Tallahassee ; and to Phcobe McDongall, the other surviving heir, lot Ko. three, containing sixty-five acres and a fraction.

The complainants not being satisfied with the allotment excepted to the report on the ground—First, That in the description of the poi’tion allotted to Eliza Brokaw an error occui’s, which locates a large part of the 53 acres outside of the quarter

section intended to be partitioned and within the city of Tallahassee. Second, That the commissioners failed to notify complainants or their solicitor of the time and place of taking testimony as to the value of the lands and improvements. Third. That they omitted to report to the court the testimony upon which they based their judgments of the values of the several portions, for the information of the court. Fourth.

That there is no equality in the value of the portions allotted, the share allotted to the defendant being of greater value than both the shares allotted to the complainants, wherefore the complainants say the report should be set aside and the matter recommitted with further directions, &c.

In support of the fourth exception they filed the affidavits of two citizens who each say they are acquainted with the premises and the improvements thereon, and have examined the map of the sub-divisions as reported by the commissioners, and they consider the value of lot one allotted to the defendant at six thousand dollars, the value of lot two set off to one of the complainants at five hundred and thirty dollars, and the‘value of lot three set off to the other complainant at six hundred and fifty dollars.

Upon these exceptions and affidavits the court made an order setting aside the report of the commissioners, and directed them to proceed to execute the order appointing them according to its terms.

The report of the commissioners placed no valuation upon the whole tract or any portion of it, nor do they report the testimony taken by them or other evidence before them upon which they came to their conclusion, nor does it appear that they took any sworn testimony unless it may be inferred from their statement “ that in considering qualities and values of the several lots of propei^' they have made the basis of tlieir action the prices and values, so far as they could learn, realized in the sale and transfer of real estate in the city of Tallahassee and its immediate vicinity for a year or more last past, and that to the best of their skill, knowledge and judgment the foregoing division of the premises is equal, equitable and fair, and that the several lots bear a like relation as regards quantity and quality or value.” ■ As to the first ground of exception, the error in misdescribing the lot two set off to Eliza BrokaW, and including lands not embraced in the proceedings, a mistake was evidently made by the commissioners, and the court should have set the report aside for this, if for no other reason, in order that a correct report and allotment - might be made.

This was doubtless one of the reasons influencing the court in- recommitting the matter to them. The real question of importance under the exceptions is whether the court was justified in quashing the report on account of the alleged inequality in the quantity and quality of the several portions allotted whereby “ manifest injustice ” was done to the heirs.

The position of the appellant is as stated in the argument that there'were not sufficient grounds appearing in the cour below upon which the report should have been set aside, and that “ from the character of the commission, merely as commissioners, there is the highest possible presumption in favor of the justice of their action.” Connsel cites in support of the finality of the judgment of the commissioners, the cases of Manners vs. Charlesworth, 1 Mylue and Keen, 330, and Jones vs. Totty, 1 Simons, 136.

These cases were decided upon exceptions to a return of commissioners in partition and in both it was held that the report could not, under the law and practice in England at the time, he set aside upon the ground of inequality in the allotment, and that no “instance could be found of interference with the action of the commissioners where the regularity of tbeir proceedings was not impeached.” It was said that “ considering that the three commissioners here were named by the three different parties and were, therefore, judges of their own choice, the principles which applied to arbitrators were properly applicable to them; and for that reason, he should have hesitated to suppress the return, even if lie had been satisfied that the commissioners had erred in their judgment as to value.” Jones vs.

Totty. In Tennessee, Vincent vs. Vincent, 1 Heisk., 333, cited by appellant, it is held that “ the statute does not contemplate a valuation of the improvements, and that such of them as are allotted to the widow shall be set off against an equal value in land. The direction is explicit, that such part or portion only of the dwelling house, outhouses, &c., as can be applied to her use, without manifest injustice to the children, shall be allotted to her.” Ib., 339. In that case the report gave the widow the buildings, including the mansion house, but difl not give her one-third in value of the land.

The report was set aside on her motion, upon testimony showing the facts. From this construction of the Tennessee statute, and from an examination of the statute itself, it is manifest that it differs from the statute of Florida. In Lenox vs. Livingston, 47 Mo., 255, cited also by appellant, exceptions were taken to the report of commissioners,' not alleging fraud, partiality or misconduct, but that it was prejudicial to the interests of the appellant.

The court says: “ The commissioners were the proper persons to determine as to what part of the land should be assigned, and in the absence of testimony showing that they abused their discretion, their action cannot be interfered with. The appellant rested his whole case upon his simple allegations. He did not introduce or oiler to introduce any evidence whatever in support of his charges.

Ho court would have been justified in setting aside an official report made by men in the performance of an official duty, and acting under the sanction of an oath, on the unsustained assertions of an interested party.” The only other authority cited by appellant is Jewett vs. Scott et al., 19 Texas, 557. This was atase of partition of land, in which the appellant excepted to the division as unequal and unjust, in that the lands assigned to one greatly exceeded in value those allotted to the other.

There were six commissioners and they reported that the portions allotted to each wore “ equal in quantity and quality,” and gave their reasons for making the division in the mode pursued. Four witnesses testified that the lands allotted to appellant were of considerable less value than the lauds allotted to the other party. Three .of the commissioners testified in support of their action,showing their diligence and good intentions. íáays the court: “They were selected for their ability and integrity.

The law presumes that they acted with zeal, skill and fidelity in their trusts, and thei-r act cannot be impeached unless for fraud, partiality or gross mistake in their judgment. There is no pretence or charge of fraud, and the question is whether there is such a mistake in their decision as to operate injustice to the appellant. Upon a review of the facts the mind is forcibly impressed with the conviction, that there must be error and wrong in the proceeding. The commissioners acted from inspection on their own judgment exclusively, and no doubt they acted honestly.

But no witness is called who concurs in their estimate oí' the value of the several allotments. All the witnesses are of opinion that the allotments were very unequal in value and greatly to the disadvantage of the appellant. The question of inequality was the matter in issue, and unless the report of the commissioners is conclusive, it seems that the prima facie presumption of its justice was rebutted by the force of the evidence ; and it should have been supported by witnesses who' would have concurred, to some extent at least, with the judgment of the commissioners. The report was set aside.

By our statutes the widow is endowed of one-third part for life in the lands, tenements and hereditaments of which her husband died seised, &c., and in that third “ shall be comprehended the dwelling house iii which her husband shall have been accustomed most generally to dwell next before his death, together with the offices, out ,houses, buildings and other improvements - thereunto belonging or appertaining ”: Provided, “ That if the whole of the said dwelling house, out houses, buildings and other improvements thereunto appertaining, eannuot be applied to the use of the widow without manifest injustice to the children or other heirs, then and in that case such widow shall be entitled to such part, not less than onothird part, as the court may deem reasonable and just.” The complainants on excepting to the report of the commissioners filed the affidavits before referred to in support of the exception that .there is no equality of value between the part assigned to appellant and that allotted to the children.

These affidavits were considered by the court without objection, so far as the record shows, and no counter affidavits in support of the report were filed or offered. The commissioners make no estimate of the value of either portion but say in general terms that the division is “equal, equitable and fair.” The court heard the exceptions and the motion to quash the return upon the report, “ the exceptions thereto and the accompanying affidavits, and the respective solicitors having been heard,” &e.

And it appeared by the affidavits that the part allotted to the widow was in value more than live times greater than that of both parts assigned to the children. There is nothing in the report showing that these several estimates of value are incorrect. _ The respective parties went to a hearing upon this state of facts duly sworn to and uncontradicted. The statute gives to the widow the use of one-third of the “ lands, tenements and hereditaments not of the lands alone, but of the lands, structures and uses.

In estimating “ quantity and quality ” tor the purposes or equality of division, where lands and improvements are being dealt with, the value of the several portions of the property must necessarily be considered, and this value must be determined by the money value in the market, its productive value, and the incomes or rents and profits it will produce.

An equal division of the lands, giving to each party her share by metes and bounds, which would give to one of them the portion having all the houses and improvements, worth in market or in productiveness ton times as much as. either of the other shares, must be manifestly unjust to the other heirs.

While the-law deals with appropriate liberality in giving to the widow the mansion house and other improvements, yet it provides that where this may operate with manifest injustice to the-children or other heirs the widow shall be entitled to such part, not less than one-third part, of the lands, tenements and hereditaments, “as the court may deem reasonable and just.” This contemplates not alone the division of the lands, but the division of the entire property including improvements in such manner that no injustice shall result to the children. They, as well as the widow, are entitled to consideration.

When the law says the widow shall be endowed of one-third, it means one-third as near as practicable in quantity and quality, but it does not mean six-sevenths in quantity and quality. While the commissioners in their return say that this division was “equal, equitable and fair,” they do not show to the court that they have given to each party one-third in quantity or quality of the property, nor is it shown in any manner as against the depositions that such was the result of the division.

They may have assumed, and perhaps Aid assume that the widow was eutitled not only to the one-third but also to a “ homestead ” in addition to the one-third. Such is the claim made by her in her answer and in the argument here, and this may have been the view of the commissioners. Erom what we have said it is clear that this proposition cannot be supported. It is said by the court in the case of Vincent vs.

Vincent, above referred to, that “ if it appear to the court assigning the dower that the whole of the said dwelling-house, out-houses, offices and appurtenances cannot be applied to her use without manifest injustice to the children or other relations, then such part or portion thereof as the court shall conceive will be sufficient to afford her a decent residence, due regard to her condition and past- manner of life, shall be assigned to her.” One ground of exception to the report is that the complainants had no notice of the time and place of taking testimony as to the value of the lands and improvements : and further, that such testimony Avas not reported to the court for its information.

In the examination of Avitnesses, the proceedings of the commissioners should be open and not secret, as “ they act in a judicial capacity, in the nature of a court, at Avhich the parties and their agents have a right to be present.” 2 Dan. Ch. Pr., 1154. And in Cecil vs. Dorsey, 1 Md. Ch. R., 227, the Chancellor says: “ It seems to me to be quite apparent that the revising power of this court cannot be wisely exercised, and the return ratified or rejected, as justice shall dictate, unless the value of the Avhole estate, and the value of the several parts, as ascertained by the commissioners, is reported.

The great object to be attained is a partition among the parties interested, fairly and equally in value according to their several just proportions, and I catfnot understand how the court can sec that this is done, if the commissioners may or may not show by their return the value they have put upon the entire estate and of each part thereof.” In the present case it does not appear by the report whether witnesses were or Avere not sworn and examined.

The commissioners say that in considering qualities and values of the several lots “ they have made the basis of their action the prices and values, so far as they could learn, realized in the sale and transfer of real estate in the City of Tallahassee and its immediate vicinity for a year or -more, last past.” They still do not report Avhat those values were of the several parts allotted, so that the court could determine, in its revising power, that the allotment is properly made.

According to the report they had.information of the values of property in Tallahassee and its vicinity, as realized in the sale and transfer of real estate, for a year or more last past. If this information Avas obtained from the testimony of witnesses, such testimony should have been duly taken and reported to the • court for its consideration. If the information was obtained by irresponsible statements, not on oath, made to the commissioners or some of them, it was not such testimony as should be relied upon in adjudicating the rights of the parties.

"We do not discover that the Chanceller abused the discretion confided in him by the statute, in setting aside the return of the commissioners. The several decrees appealed from are affirmed.