
    In re ESTATE of Axel P. JOHNSON, Deceased. Pearl B. JOHNSON, Appellant, v. Warren A. JOHNSON, Appellee.
    No. 69-716.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 1970.
    Rehearing Denied Dec. 2, 1970.
    
      Thomas B. Freeman, of Belcher & Fleece, St. Petersburg, for appellant.
    Joseph H. Lang, of Baynard, McLeod & Lang, St. Petersburg, for appellee.
   LILES, Judge.

The County Judge refused to allow the value of Michigan property previously conveyed to be used in the admeasurement of dower to a Florida wife. Appellant here assigns this as error and we are called upon to answer the question which is one of first impression in Florida.

Dower in Florida is entirely a creature of statute. Our problem here is solely one of statutory interpretation, and it involves real property, not movable property. I find nothing in our statutes that empowers a Florida probate court to award a widow, who is not satisfied with her legacy or intestate share, not only one-third of the probate assets but also an additional amount of Florida probate assets equal to one-third the value of non-Florida real property validly conveyed by the husband during his lifetime but without her joinder or relinquishment.

The dower statute, § 731.34, provides that dower in real property shall be one-third in fee simple of the property

“ * * * owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law.”

Her dower right is in property, if she has no dower right in particular property, enforceable against that property, then its value should not form the basis for a dower award in other property.

Whether a widow has a dower right or statutory forced share interest in real property is determined by the law that would be applied by the courts of the situs (although the determining law may be otherwise as to movable property). See Restatement (Second), Conflict of Laws § 242 (Proposed Official Draft, 1969); Boyer and Miller, Furthering Title Marketability by Substantive Reforms With Regard to Marital Rights, 18 U.Miami L.Rev. 561, 569 (1964); Dowling, Dower in Florida, 31 Fla.B.J. 345 (1957). Both appellant and appellee appear to concede, and we have assumed, that the courts of the state where the real property in question is located would determine that appellant has no dower right in the property and would not apply Florida law in the determination of appellant’s rights. If she has no dower right in the property, then it is difficult to see where the Florida legislature has empowered a Florida probate court to divert Florida probate assets from the heirs or legatees who would otherwise receive them and to award those assets to the widow as dower in the out-of-state property.

Illogical and inequitable results could flow from a rule that allowed Florida probate assets to be used as a substitute for dower in non-Florida real property validly conveyed by the husband during his lifetime in full compliance with the law and custom of the state in which the property was located, and in which the widow had no inchoate dower. If the widow were entitled to receive, as dower, Florida probate assets equal in value to one-third of the non-Florida real property so conveyed by her husband during his lifetime but without her joinder, in addition to one-third of the Florida probate assets themselves, she could foreseeably take the decedent’s entire estate to the exclusion of all other heirs or legatees and to the exclusion of all persons having just and properly established creditors’ claims against the husband and his estate. If the legislature meant to allow such a result, it should have spoken more clearly.

The courts of a decedent’s domicile generally have not taken into consideration the value of real property located elsewhere when determining the amount of the local forced share to which the widow is entitled (although, as indicated above, the matter of movables is different). See Scoles, Conflict of Laws and Nonbarrable Interests in Administration of Decedent’s Estates, 8 U.Fla.L.Rev. 151, 168 (1955).

Moreover, our dower statutes distinguish between real property owned by a husband at the time of his death and real property previously conveyed by him. §§ 733.09, 733.10, and 733.11(1) deal with action or inaction by the deceased husband’s personal representative with respect to assignment of dower; these provisions refer only to probate assets, as the personal representative has no jurisdiction over property no longer owned by the decedent. § 733.11(2) is the only statute expressly dealing with assignment of dower in non-probate assets, viz., lands conveyed by the husband during coverture without dower relinquishment by the wife; and it speaks of a proceeding in the county judge’s court of any county or counties in the state where any such lands lie. The legislature has not authorized the county judge’s court in the domiciliary county to assign dower in lands located elsewhere and not owned by the decedent at the time of his death. To assert such rights against the husband’s transferee, the widow must go where the land is. § 733.12(2) authorizes the county judge in whose court the administration of the decedent’s estate is pending to assign dower in real or personal property located anywhere in the state, but it deals with probate assets and is not an alternative to the procedure set forth in § 733.11(2) for assignment of dower in lands conveyed by the husband before his death. Thus, it appears that the Florida probate court in the domiciliary county has no statutory authority to award probate assets in satisfaction of dower in non-probate lands lying in another county, even when the non-probate lands are located in Florida, and, a fortiori, when located outside Florida.

Appellant emphasizes that her husband’s conveyance reflected a gift to his children and that he reserved a life estate. But appellant does not suggest that her claimed right would be different if the conveyance had reflected a sale to a stranger for full cash value and if the sale proceeds had become part of the Florida probate assets against which her dower would operate. This case has not been presented to us on the equities, or on the concept of “fraud on the widow’s share,” but simply as one calling for the mechanical application of the dower statute.

For the foregoing reasons, the order of the trial judge is hereby affirmed.

HOBSON, C. J., concurs.

PIERCE, J., dissents with opinion.

PIERCE, Judge

(dissenting).

The following was originally written as the majority opinion but upon the defection of one of my brethren it now becomes the dissenting opinion.

This is an appeal from an order with respect to assignment of dower entered by the Court of the County Judge for Pinellas County during the probate of a decedent’s estate.

Axel P. Johnson, while a resident and citizen of Pinellas County, Florida, died on August 28, 1967, leaving him surviving his wife, Pearl B. Johnson, three sons, and a daughter, all above age. On December 15, 1967, the eldest son, Warren A. Johnson, filed petition in the County Judge’s Court for Pinellas County to have probated the Will of his deceased father wherein Warren had been named and designated as executor. The Will, after making the usual provisions for paying funeral expenses, taxes, expenses of the last illness, administration of the estate, etc., bequeathed and devised to his widow, Pearl B. Johnson, “her statutory share out of my estate to which she would be entitled had I died intestate under the laws of the State of my residence at the time of my death [Florida].” The rest of his estate he left equally to his four named children.

On December 27, 1967, the widow Pearl filed in the Probate Court her written election to take dower in the estate, and on July 2, 1968, she filed her petition requesting an assignment by the Court of her dower interest. She alleged such property to consist of two savings accounts, certain shares of stock in a corporation, proceeds of a life insurance policy which had been paid to the estate, an old Plymouth automobile, and two lots in Detroit, Wayne County, Michigan. There is no contest as to the personalty, but as to the realty in Michigan there is a contest between the four children and the widow.

It appears that on September 10, 1960, the decedent, while married to Pearl, conveyed the described Michigan property to his said four children (by a former marriage), expressly reserving a life estate therein to himself. It is also conceded that the conveyance was made without joinder of his then wife, Pearl, and without her knowledge or consent and that she received no benefit or consideration therefrom. By her election to take dower and her petition for assignment thereof, made during the course of the probate of her deceased husband’s estate, the widow contended that the value of the Michigan real estate should be taken into consideration by the Pinellas County Probate Court in the assignment to her of her dower right. This contention rests upon her assertion that the deed of conveyance aforesaid made by her husband did not carry with it a conveyance or transfer of her dower rights to such property and that her dower rights continued therein even after his death. The children, on the other hand, contended that the status of the vacant property should be determined according to the law of Michigan, which by § 558.21 of the Michigan Statutes provides that a non-resident wife is not entitled to dower in.lands conveyed by her husband during coverture. The widow contended that the status of the Michigan property should be determined by Florida law, which by F.S. § 731.34 F.S.A. provides inter alia that—

“ * * * dower shall be one third in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law * * ”

On November 20, 1969, the County Judge entered order holding that Pearl was “entitled to dower” in the estate and the executor was directed to pay to her one third of the total value of the assets consisting of personalty, but the order denied her any dower in the Michigan real estate. She appeals said order to this Court.

The widow concedes that the Florida Courts have no “jurisdiction over the extra territorial property” located in Michigan, but that her dower .rights therein should be computed upon a fair valuation of such property and that she be given the benefit thereof in the assignment of her dower rights locally. She emphasized the fact that at the time of the conveyance both she and -her then husband were residents of Florida and remained such until after his death. I would hold with the widow and reverse the order appealed from.

At common law, the widow was entitled only to a one third life estate in the real property owned by her husband at the time of his death. This has, however, been changed by statute in Florida, F.S. § 731.34 F.S.A., which provides for her dower in not only one third in fee simple of the real property owned by him at his death, but also such property “which he had before conveyed, whereof she had not relinquished her right of dower”.

The Florida statutes in derogation of the common law must be given a strict construction. This view is bulwarked by consideration of Rule 5.250(a) of the Rules of Probate and Guardianship Procedure, which provides for the filing by the personal representative in the probate proceeding of a complete inventory of the personal property of the decedent “wheresoever situate” and also goes further and provides that “real property of such decedent * * * situated outside of this State shall be inventoried, if known * * *

The rights of the survivors of a decedent in real and personal property should in my opinion be determined as of the law of the domicile and where the domicile of both the decedent and his surviving spouse is in Florida the law of that forum should govern in determination of her dower. There is no question but that her dower right attached in the Michigan property at the time he acquired the property or at the time they married, whichever was later, and it would be contrary to law and good conscience to hold that the husband could, without her knowledge and merely by affixing his signature to a document, divest his wife of her distinct interest in that property which she had aready acquired as a matter of law.

The point is of first impression in Florida but other States support my view. See In re: Harris’ Estate (1934), 150 Misc. 758, 271 N.Y.S. 464; In re: Ellis Estate (1950), 30 Misc.2d 225, 139 N.Y.S.2d 640; Wittner’s Estate (1948), Sur., 82 N.Y.S.2d 759; Matter of Dwyer, 159 Cal. 680, 115 P. 242; Paschall v. Acklin, 27 Tex. 173; Bish v. Bish (1943), 181 Md. 621, 31 A.2d 348.

The order appealed from, insofar as it denies the appellant widow’s right to dowry in the Michigan property, should be reversed, and the remainder of said order affirmed.  