Summary
In Johnson v. Hayes, Fla. 1951, 52 So.2d 109, the wife waited until after the deceased ex-husband's estate was closed to seek dower rights in real property that he had sold to bona fide purchasers.
Summary of this case from Howard v. C.I.ROpinion
February 16, 1951. Rehearing Denied March 9, 1951.
Appeal from the Circuit Court for Dade County, Stanley Milledge, J.
Franks Gordon and H.H. Eyles, Miami, for appellant.
Milton M. Ferrell and W. Dow Woodward, Miami, for appellees.
This appeal is from a decree of the circuit court dismissing a bill to set aside dower in lands conveyed by plaintiff's late husband wherein she had not joined in the conveyance. Issue was joined upon bill and answer. Evidence was taken before the court and the decree discloses:
"Annie Oliver married John L. Johnson, each for the second time, in 1929. About a year later they separated and never lived together again. John Johnson died in February 1947, leaving a will naming his son by a prior marriage as sole devisee. The assets of the estate consisted entirely of land. During the years of 1940 to 1946, inclusive, Johnson sold off eight parcels of land to as many grantees. Each conveyance was by warranty deed in which Johnson described himself and conveyed as a single man, his wife not joining to release dower. In each transaction Johnson, who lived some 20 miles south of Miami, was represented by a firm of Miami lawyers who prepared the deeds. Johnson represented himself to them as a single man and the grantees had no reason to think he was married. These same lawyers prepared Johnson's will in 1941, which made no provision for his wife. Mr. A.S. Thurman, a real estate broker, was nominated and qualified as Executor. Mr. Thurman, who acted as Johnson's adviser in his real estate transactions for 12 or 14 years, thought Johnson was a single man. He never saw Annie. A couple of months after Johnson's death the widow, Annie, filed in the County Judge's Court her `objections to probate' in which stated that to give effect to the will would be contrary to her dower rights in the lands owned by decedent at death and in the lands conveyed by him without the widow's release of dower. In the following month, May, 1947, this objection was overruled and the will admitted to probate. Notice to creditors was published beginning June 2, 1947, so the time for filing claims expired February 2, 1948. On March 11, 1948, the widow filed in the County Judge's Court two documents, one, her claim to dower in the conveyed lands in which she did not release dower, the other, her election to take a child's part, in lieu of dower, in the property owned by decedent at death.
"In July 1948, the widow and decedent's son entered into a `composition settlement agreement' by which they divided equally all the lands owned by decedent at his death (this being the entire estate), each party to execute conveyances to the other in the parcels as prescribed, and providing for the immediate end of administration proceedings. At this time the widow had known for well over a year that her husband had conveyed the lands in question without her release of dower. Shortly afterward, Mr. Thurman, the Executor, filed his petition for discharge based on the agreement, and on September 17, 1948 the County Judge approved the agreement and directed distribution according to its terms, making allowances for fees and costs which were paid equally by the widow and her stepson. On petition, the Executor was discharged on November 24, 1948.
"On January 7, 1949, the widow filed in the County Judge's Court her extraordinary petition for the assignment of dower in the eight parcels of land conveyed by Johnson in which the widow had not released dower, under Section 733.11, F.S.A. naming the grantees as defendants. To the petition was attached the widow's `claim to right of dowery' sworn to on January 22, 1948. Process against the defendants was issued January 7, 1949 and served January 20, 1949. This was the first time that the husband's grantees had any reason to be concerned with the estate and to know that any claim of dower in their lands was being made. On the motion to dismiss by some of the defendants, the Court, upon notice, dismissed with prejudice on April 4, 1949. No appeal was taken. The widow filed this suit in chancery on April 20, 1949, seeking the identical result as she did in the proceedings in the County Judge's Court, namely, dower in the lands conveyed by Johnson to the defendants."
This decree may be affirmed for two very good and sufficient reasons. In the first place the County Judge had jurisdiction to set aside dower. Section 17, Article V, Florida Constitution, F.S.A., Section 733.11, Fla. Stat., F.S.A., In re Warner's Estate, 160 Fla. 460, 35 So.2d 296, In re Lawrence's Estate, Fla., 45 So.2d 344. Therefore the unappealed judgment, adverse to her, amounted to a final adjudication of the matter. The Lawrence case, supra, is submitted as authority for appellant. It is, however, distinguished in this respect: In the Lawrence case the property in which dower was claimed was in fact owned by a third party and title had never been vested in the deceased; whereas the contrary appears in the case at bar.
In the second place equity would estop her from asserting the relief claimed after having waited until the estate had been closed and no claim could have been filed against it for breach of warranty which her late husband made in purporting to convey an absolute fee-simple title as a single man.
Furthermore when the widow elected to take a child's part in lieu of dower, she thereby expressly estopped herself from thereafter claiming any dower whether in property owned by her late husband at the time of his death or which had theretofore been conveyed by him during coverture without her jointure.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.