
    In re ESTATE of Harry E. COFFEY, Deceased.
    No. 64-210.
    District Court of Appeal of Florida. Third District.
    Feb. 2, 1965.
    Rehearing Denied March 3, 1965.
    Williams, Salomon & Kenney, Miami, for appellants.
    Talianoff, Waller & Litman, Miami Beach, for appellee.
    Before TILLMAN PEARSON, CARROLL and HENDRY, JJ.
   HENDRY, Judge.

This appeal seeks review of a judgment of dower and order assigning dower entered by the County Judge’s Court of Dade County. The judgment, allotment and award were in favor of Mary E. Coffey, the widow of Harry E. Coffey, deceased, in each and every item and parcel of property owned by the deceased at the time of his death. Included in the award were two hundred, twenty-five bonds of Imperial Apartment Hotel, Inc., each in the principal amount of $1,000, two hundred of which were pledged as security for the payment of a $100,000 loan made by the appellants to the decedent. Appellants’ objection to the inclusion of the bonds in the award is the basis of this litigation.

There is no dispute as to the facts out of which this litigation arose. On May 15, 1961 the appellants, as pledgees, and Harry E. Coffey, as pledgor, entered into a pledge agreement conceiving the pledging of the above mentioned bonds. The appellants and the appellee’s husband, Mr. Coffey, were at one time the owners of four lots in Miami Beach, upon which the Imperial Apartment Hotel was to be constructed. The property was subject to a $300,600 mortgage indebtedness which was paid off by transferring the indebtedness to other property owned solely by the appellants. Mr. Coffey agreed that he would, no later than February 27, 1963 pay unto the appellants the sum of $100,000 as his share of the principal debt secured by the mortgage.

Thereupon, the four lots upon which the hotel was to be constructed were transferred to Imperial Apartment Hotel, Inc. Bonds were issued by the corporation, $225,000 of which were issued to Mr. Coffey. Two hundred of these bonds were in turn pledged by him as security for the payment of his $100,000 indebtedness to the appellants, pursuant to an escrow agreement under which the appellants’ attorneys were named escrow agents.

The pledgor, Mr. Coffey, died testate in July, 1962. His will and codicil were duly admitted to probate and his widow, Mary E. Coffey and Lewis H. Wintz were qualified as co-executors. Appellants each filed claims of $50,000 in the estate. No payment having been made on the indebtedness and the same having become past due on February 27, 1963, the escrow agents, as provided in the escrow agreement, gave notice to the co-executors of their intention to conduct a collateral sale on April 29, 1963.

On April 1, 1963 the co-executors and the appellants entered into an agreement extending the time of sale from April 29, 1963 to October 1, 1963. The collateral sale was held on October 1, 1963. The collateral was sold to the appellants for $50,000, their bid being the highest and best offer. There remained a deficiency of $50,000 plus interest and costs.

Prior to the holding of the collateral sale and prior to the debt becoming due, the co-executors petitioned the court for leave to make partial distribution as to two automobiles, to-wit: a 1955 Cadillac and a 1959 Chevrolet, which had been left to the widow under the will. The court finding it to be in the best interest of the estate, ordered such distribution to the widow.

Soon after the collateral sale was held on October 1, 1963, the widow, having received partial distribution under the will, filed an election to take dower in the estate. Upon the widow’s petition for assignment of dower in the entire estate, the court entered its judgment of dower and order assigning dower. By such judgments and order, the widow was granted dower in each and every item of property owned by the deceased at the time of his death which included the pledged bonds and the automobiles previously distributed.

On the date the election to take dower was made, the sale of the collateral had been made and the pledged bonds had been received by the appellants, pledgees.

There are two questions for our consideration: (1) Does a widow waive her right to claim dower against the will after she has had partial distribution under the terms of the will; (2) Does the county judge’s court have jurisdiction to assign dower when there is a claim by a third party adverse to the estate ?

We are of the opinion, and so hold, that the widow did not waive her right to elect against the will by taking a partial distribution pursuant to the provisions of the will. Initially, it may appear to be rather unjust to permit such inconsistent behavior as electing against the will at the same time that one is talcing under the will.

The applicable law and rationale therefor are amply set forth in a student note in 3 Fla.L.Rev. 214, 216 (1950):

“Some present statutes require a widow to dissent from her husband’s will within a limited period and in a specific manner, but do not require her formally to elect to take under the will. These are interpreted in some states to allow her, during the statutory period, to revoke any acceptance of benefits under the will provided her acceptance has not induced action by third parties that would create an estoppel. This interpretation constitutes an exception to the common law rule. In Florida, our statute is essentially of this type, and the Florida Court is to date committed to adherence to this exception. [Citations omitted.] Its rationale is that these statutes require the widow affirmatively to elect dower. No such affirmative action is required in order to take under the will; she merely abstains from electing dower. The result is that if she chooses dower her choice is an election, and she is thereafter precluded from taking under the will. If, however, she takes under the will, she may later revoke her choice within the statutory period and elect dower, provided the rights of third parties have not been prejudiced so as to create an estoppel.”

In the instant case there is nothing before us to indicate that appellants have been prejudiced by the widow’s failure to take dower sooner. The county judge correctly included the automobiles previously distributed as part of the husband’s estate for purposes of assigning dower so that there was an effectual return of this property, and we are not confronted with the problem of the widow collecting twice. Accordingly, the widow was not estopped from her statutory right of electing against the will.

We now turn to the more difficult problem of the jurisdiction of the county judge’s court in assigning dower. The county judge’s court has general probate jurisdiction, a part of which is the assignment of dower. The extent of this jurisdiction can sometimes be rather troublesome. We think an analysis of the historical development of the decisional law might be of some aid in resolving the issue of jurisdiction.

The early development of the law in the area was succinctly outlined by Judge Shannon in In re Feldman’s Estate, Fla.App. 1959, 109 So.2d 407. The status of the law, as of that time, was that the county judge’s court had no jurisdiction to determine the question of title to property when a third party not claiming under the will asserted a claim adverse to the estate. In other words, if both contestants are basing their claim to the property by virtue of the will, then the county judge may resolve this dispute. Judge Shannon pointed out this distinction with the following statement:

“To further explain this distinction made in Coleman’s Estate [Fla.App. 1958, 103 So.2d 237] we would stress the phrase ‘claiming as such’ in the sentence setting out the exception in Lawrence’s Estate [Fla. 1950, 45 So.2d 344]. This qualification makes it clear that the author of the Lawrence opinion had in mind those questions involving real property which probate judges have always handled, and about which there has never been any serious doubt, (See In re Monk’s Estate [155 Fla. 240, 19 So.2d 796 (1944)], such as construing ambiguous devises of realty in wills, ordering the sale of realty to meet expenses of a decedent’s estate, setting out widow’s dower in real property, etc. To be a beneficiary ‘claiming as such’' you must be claiming by virtue of a will or by statute, and in such cases the county judge’s jurisdiction obtains. However, in Coleman’s Estate, while the claimants were beneficiaries their disputed claims were based not on the will, or on any statutorily conferred! right, but upon instruments extrinsic to the usual probate proceeding, hence they were not beneficiaries ‘claiming as such.’ ” [Emphasis supplied.] 109 So. 2d at 412.

In Feldman, supra, the second district held that the county judge had no authority to ■determine the validity of an agreement between the heirs and the widow in regard to the settlement of the estate.

“Although a county judge, sitting as a judge of probate, has quasi administrative power to make an administrative finding of what assets belong to the estate for the purpose of assigning dower to a widow, any dispute between the widow and third parties as to title to property claimed to belong to the estate lies exclusively within the jurisdiction of a court of equity. [Citation omitted.] The power to impose a •constructive or resulting trust on assets •belonging to the estate is likewise a matter cognizable only in a court of equity. [Citation omitted]” Moskovits v. Moskovits, Fla.App.1959, 112 So.2d 875, 879.

This case referred to the “quasi administrative power” of the county judge in determining what assets “belong to the estate”. It would seem that the court in Moskovits is limiting more strictly the jurisdiction of the probate court than the court did in Feldman. Feldman spoke of the probate court’s traditional jurisdiction in setting out widow’s dower in real property, while in Moskovits the court speaks in terms of the “quasi administrative power” of the probate court to “make an administrative finding of what assets belong to the estate for the purpose of assigning dower to a widow”.

The second district construed the Coleman case to exclude controversies involving claims to personal property from the jurisdiction of the county judge’s court in In re Brown’s Estate, Fla.App.1961, 134 So.2d 290. In Brown, the court determined that the county judge had no authority to assign dower in a fund which the decedent's client was claiming the decedent held in trust for it. The court decided this case on the specific ground that the county judge could not determine if this property was subject to dower because a third party claimed title to it. Specifically the court stated:

“As the Supreme Court said in In re Lawrence’s Estate, supra, this statute provides that ‘the proceedings upon any petition for the assignment of dower shall be informal and summary.’ It ‘contemplates a quasi-administrative power to make a finding, for administra'<• tive purposes of which assets belong to the estate,’ and ‘the allotment of dower, under ordinary circumstances.’ As used therein ‘the words “all property” must have reference to “decedent’s estate,” ’ and would not include property held by decedent in a fiduciary capacity.
“An earlier statute on assignment of dower provides that ‘The proceedings upon * * * petitions for dower shall be in a summary way * * *.’ Thompson’s Digest, 186, McClellan’s Digest 477. In Milton v. Milton, 14 Fla. 369, the Supreme Court referred to this statute, as ‘a special and summary proceeding in which no relief other than that specially authorized by the act can be granted.’ This construction was followed in Godwin v. King, 31 Fla. 525, 13 So. 108, and is equally applicable to the statute we are considering. The language of Section 733.12, Fla.St.1959, F.S.A., evinces no intention, on the part of the legislature, to confer jurisdiction upon the county judge’s court to determine controversies between an estate and strangers thereto as an incident to the assignment of dower.
“In reaching the conclusion just expressed, we have not overlooked that Section 733.12, Fla.St.1959, F.S.A., does differ in two respects from the statute under consideration in Milton v. Milton, supra, and Godwin v. King, supra. It confers plenary jurisdiction to assign dower, and it authorizes the empanelling of a jury to admeasure the dower.
These provisions show no intent to enlarge the jurisdiction of the county judge’s court to determine controversies such as the one between appellant and appellee, nor could they do so, for that would bring the statute into conflict with Section 6(3) of Article V of the Constitution.” 134 So.2d at 296.

This line of cases was adhered to in In re O’Neal’s Estate, Fla.App.1962, 142 So.2d 315, by holding that the probate court had no jurisdiction to consider a controversy between the executor and a third party as to who owned the business in which decedent had engaged. In so doing, the court shed some light on the “administrative powers” which previous decisions had attributed to the county judge’s court.

“The Probate Court did have the power to make findings for administrative purposes on some of the matters presented to it by the petitions. Findings for administrative purposes involves only instructions and directions to the personal representative pertaining to matters of the estate concerning the personal representative, the widow’s dower, the assets of the estate, or the rights of those claiming under the Will or claiming as heirs at law. Such administrative purposes do not include an adjudication of the rights or property interests of a person claiming adverse to the estate.” 142 So.2d at 318.

It appears from the record before us that there are issues involving title to the testator’s property which were raised by strangers to the estate, not claiming under the will. In view of the decisional law above cited, we hold that the county judge was without jurisdiction to determine the right of dower of the widow in these bonds as against the claim of appellants.

Accordingly, the order assigning dower is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

TILLMAN PEARSON, Judge

(concurring in part, dissenting in part).

The holding of the majority, as I understand it, is that the county judge was without jurisdiction to determine the right of dower, because there were issues involving title to the testator’s property which were raised by strangers to the estate who were not claiming under the will. I would hold that the county judge has jurisdiction to determine the right of dower, but I agree that he does not have jurisdiction to determine the claim of title raised by the strangers to the estate. I would affirm the trial judge because this is exactly what he held. I would reverse only that portion of the order which directs the lienor to deliver the personal property to the widow.

In order to present my conclusion, it is necessary to restate the history of the case to show how the claim of the strangers to-the estate was presented to the trial judge. On October 4, 1963, the widow filed her election to take dower, and subsequently her petition for assignment of dower. After hearing the county judge entered an order assigning dower which is in part as follows:

“CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that:
“1. Mary E. Coffey, Widow of Harry E. Coffey, deceased, is entitled to> Dower in said Estate.
“2. That Judgment, Allotment and Award of Dower is herewith entered in favor of said Widow, Mary E. Coffey, in each and every item and parcel of property owned by the deceased at the time of his death as delineated in the Inventory of Assets of the Estate filed herein, to-wit, one-third (1/3) of each of the following:”
******

[Here followed a list of assets including the personal property claimed by appellants.]

******
“4. The said co-executors and all parties having possession of any of the items or parcels constituting the inventory of the Estate at the time of the death of Harry E. Coffey, are herewith directed to comply with this Judgment for Dower and Award and Allotment of Dower, and to pay over and/or deliver over unto Mary E. Coffey, Widow, the said items and parcels of property determined herein as her Judgment, Allotment, and Award of Dower.”

Appellants petitioned the court for a rehearing and also filed a “Supplement to Petition for Rehearing.” The substance of the petitions was a prayer that the court enter its order to the effect that the appellants not be required to pay over or to deliver to the widow the pledged debenture bonds.

On March 4, 1964, the court entered its order denying the petition for rehearing. This order sets forth the position of the county judge upon the question of the extent of his jurisdiction in the assignment of dower. It is in part as follows:

“On 28 January 1964, S. J. HAL-PERIN and S. ROBERT SIEGEL, as petitioners, filed a Petition for Rehearing on the Petition for Judgment of Dower and Order Assigning Dower aforesaid, and on the 8th day of February, 1964, filed a supplement to said Petition for Rehearing.
“The matter came on for hearing before the court upon the Petition for Rehearing and the supplement thereto, and the court has heard the evidence adduced before the court by the petitioners, has considered the brief of the petitioners filed herein, and now being fully advised in the premises, the court finds:
“The Petition for Rehearing addresses itself to that portion of the judgment of dower relating to 225 Bonds, being First Serial Debenture of Imperial Apartment Hotel, Inc., A Florida Corporation, said bonds having a par value of $1,000 each. The judgment for dower aforesaid awarded dower in said 225 Bonds of Imperial Apartment Hotel, Inc., together with one-third of any dividends of accruals thereon. The judgment for dower further ordered all parties having possession of any of the items or parcels in which dower had thus been awarded to-pay over and deliver the same unto MARY E. COFFEY, the widow, such-portion thereof as was determined to-be hers, absolutely or in fee simple by way of dower.
“It was alleged in the petition for assignment of dower and in the inventories filed in the estate of the decedent that HARRY E. COFFEY died owning 225 Bonds, being First Serial Debentures of Imperial Apartment Hotel, Inc., a Florida Corporation, of $1,-000 par value each. The petitioners here do not deny that HARRY E. COFFEY died owning said debentures,, but claim that 200 of the same had been pledged by the decedent with them to secure a loan to the decedent of $100,000; that the petitioners had filed a claim against the estate of the decedent for the aforesaid indebtedness of the decedent to them; that the debt was evidenced by Promissory Note signed by the decedent and secured by a pledge of the debenture bonds aforesaid ; that the 200 debenture bonds had been sold at collateral sale during the course of administration of the decedent’s estate and had been purchased at such collateral sale by the petitioners, ’ and MARY E. COFFEY, as-widow of the decedent, should not have been awarded dower in said debenture bonds. The issue of whether or not dower should be awarded in a pledge asset having been raised by the petitioners, the court offered full opportunity to petitioners to show that the widow was a party to the pledge or that she agreed to the pledge, or that she acquiesced in the pledge, or that she participated in the obtaining of the loan to the extent that she should now be estopped from claiming dower in the pledged asset, and that her right to dower is subordinate to the claim of the creditors, the petitioners here. The Court finds that upon the testimony adduced by the petitioners, there has been no testimony offered that the widow was a party to the pledge agreement; that she joined in the pledge agreement; that she had any knowledge of the pledge agreement; that she acquiesced in the pledge agreement; or that she participated in the obtaining of the loan in such a manner that she should now be charged with knowledge and estopped from a claim of dower in the pledged assets, or that her claim of dower be subject to tire various rights of the creditors in the pledged assets. The court finds that this is a simple election to take dower by surviving widow and a petition for the assignment of her dower in kind in the assets of the decedent admittedly owned by him at the time of his death. That is all that this court purported to do by its judgment of dower of 20 January 1964.
“By way of clarification of Paragraph 4 of the judgment and award of •dower, if clarification be needed, it was the clear intention and order of this court that all persons having possession of assets of the decedent’s estate awarded to the widow in dower, turn over the same to her as her absolute and fee simple estate; that by such order this court did not and does not attempt to determine any right or claim or demands of any third party to any of the assets owned by the decedent at the time of his death that might be adversely claimed. This court enjoys no jurisdiction or power to determine the validity of contracts, the effect of assignments, the effect of pledges, or the rights of such claimants, none of which said matters are within the purview or jurisdiction of the County Judge’s Court and none of which are embraced in an award of dower to a decedent’s widow of the assets owned by him at the time of his death.”

It is my view that the county judge has correctly defined the scope of his power and that such a holding is in accord with all the authorities cited in the majority opinion.

This view, which must rely ultimately upon the Constitution and the statutes, is buttressed by the fact that § 731.34, Fla. Stat., F.S.A. grants dower of “ * * * one third part absolutely of the personal property owned by her husband at the time of his death * * [Emphasis supplied.] The statute therefore calls for the determination by the county judge that the personal property was owned by the deceased at the time of his death. The fact that the deceased owned the bonds at the time of his death seems to be admitted. That is the extent of the County Judge’s determination; he does not attempt to determine the validity of the lien or the subsequent sale. 
      
      . §§ 36.01 & 732.01, Fla.Stat., F.S.A.
     
      
      . § 731.35,Fla.Stat., F.S.A.
     
      
      . Accord Lambeth v. Capell, Fla.App.1962, 146 So.2d 386.
     