Wilson v. Fridenburg-Opinion of Court.

business at Jacksonville and Palatka, Florida, be carried on in the manner he had conducted it so long as in their judgment it should be deemed best for his estate. The business was to be closed and settled by them whenever they thought best to do so. The other provisions of the will we refer to as occasion requires.

After obtaining letters testamentary the widow and executrix, Emily R. Parkhurst, intermarried with James Y. Wilson. On the 9th of November, A. D. 1878, the Circuit Court for Duval county, on "petition presented," authorized the late widow of Converse Parkhurst, and executrix, and her husband to borrow from the respondent the sum of six thousand dollars, and to secure the payment thereof by mortgage on lots No. 2 and 5, in block 25, in the city of Jacksonville, and the loan and mortgage was accordingly made. There was default in payment, and this suit is now brought against the executrix of the last will of Converse Parkhurst. and her husband (the children not being parties) to foreclose the mortgage. The bill does not disclose for what purpose the loan was made or the money used when received, and there is no copy of the record of the proceedings upon the petition in the record of the case here. The mortgage is an exhibit to the bill, and is prayed to be taken as a part thereof. In it there is a recital of the application by petition, and it is said to have been for "authority to borrow money to pay off judgments which had been rendered against the said estate and to pay debts, et cetera." It will be noted that this order for authority was made on the 9th of November, A. D. 1878, while the testator died in. 1872. A period of five years had thus elapsed, and the executrix and executor, if they had done their duty, should in this time have paid the debts of the testator, if there were any and they had the means to do so, and from the nature of the provisions of the will the presumption that there were available moneys is justified.

Wilson v. Fridenburg-Opinion of Court

To this bill the defendants, so far as lot No. 2 was concerned, interposed pleas as follows:

First. That the said testator, who was the head of a family, owned and enjoyed the premises embraced in the mortgage before and at the time of his death as a homestead for his family, and that since his death his widow and children have and are now occupying it as a homestead, and that the lot is 105 feet square.

Second. That the minor children were not parties to or in anywise represented in the proceeding and decree of the 9th of November, A. D. 1878, nor was it made to appear that the lot was the homestead, or that he left heirs, surviving members of his family, residing with his widow upon the homestead; that the said decree authorizing the execution of the note and mortgage referred to in said bill provided in terms as follows: "That said note and mortgage so executed by them shall have the same force and effect to all intents and purposes as though the said Converse P. Devereux, as executor of said last will, and who has been enjoined by this court for the time being from attempting to administer said estate, had joined therein."

Third. That the funds alleged to have been borrowed from the complainant and secured by mortgage were never applied to the debts and liabilities incurred after the death of said Purkhurst.

Fourth. A plea setting up that the minor children are proper and necessary parties, and that they were not made parties.

The Chancellor overruled these pleas, and from this action this appeal is prosecuted.

The claim here is that because of the homestead exemption of the Constitution this property is, under the circumstances of this case, exempt from sale. So far, therefore, as the Constitution has any bearing upon the matter it is necessary here to interpret it.

Wilson v. Fridenburg—Opinion of Court.

The exemption clause of the Constitution, so far as it affects real estate and is involved in this case, is as follows: A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, and the improvements on the real estate shall be exempted from forced sale under any process of law, and the real estate shall not be alienable without the joint consent of husband and wife when that relation exists. But no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner.

The exemption shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption, and shall apply to all debts except as specified, no matter when or where the debt was contracted or liability incurred. Const., Art. IX., Secs. 2 and 3.

The exemption here provided for is clearly exemption from sale for the debts of the owner of the property, who is the head of a family residing in this State, and it is also as clear as language can make it that this exemption as homestead from the debts of such owner is all that enures to his heirs upon his death by virtue of the Constitution. In this case, as we have stated it, there is nothing in the pleadings which shows that upon the death of the party who was the head of this family he was to any extent indebted. It is recited in the mortgage, which is an exhibit to the bill, that the purpose of the loan was to "pay off judgments which had been rendered against the estate, and to pay debts, et cetera," but whether these were debts

Wilson v. Fridenburg-Opinion of Court.

of the testator or debts incurred under the provisions of the will is not stated. As the mortgage to pay them was executed some five or six years after the death of the testator, and the executrix and executor were directed to continue the testator's business at Jacksonville and Palatka, the presumption would rather be that the debts were contracted in carrying this business on. One of the pleas also states that the money borrowed was not applied to the debts of Parkhurst, but this may have been because no debts existed to which to apply them. Nowhere do we find any issuable allegation that at the death of Parkhurst he owed debts. If he did not no exemption would enure under the Constitution, and the property constituting the homestead would be subject to the statute of descents and the law of dower in the same manner as if no homestead exemption existed. This, as to an intestate estate. Whether in such case a testamentary disposition would be effective we examine hereafter.

As the matter has been argued, however, in the light of debts existing at the death of the homestead owner, and as we think, in view of the conclusion we reach, that it is not improper to state our conclusions in that aspect of the case, we do so. We think the rule controlling the disposition of the homestead property in that event is the same as that which controls in the event of no indebtedness, except, perhaps, as to the extent and degree of the estate which would pass to the heir. This it is unnecessary to determine here.

There is no provision in our Constitution giving a widow any right of homestead. Her right is as wife, and is confined to a power to prevent any alienation by the husband, without the joint consent of his wife, and the exemption as homestead in the language of the Constitution accrues to the heirs of the party having enjoyed or taken the benefit of such exemption. As against such heirs, or as against

Wilson v. Fridenburg-Opinion of Court.

any creditor of a deceased husband, she has no homestead right simply because the Constitution does not in any way give it, unless she is an heir, and in this case she is not an heir under the statute, which in certain events makes her So. Her right here is confined to the general laws giving rights to widows, because such laws are not "inconsistent" with the exemption which accrues to the heirs. Without this constitutional provision the widow alone is protected in her right of dower in the husband's real estate, while the heir's interest is subordinate to the debt of the decedent. With this provision both are alike protected from the assault of the creditor, the one by virtue of the constitutional homestead exemption accruing to him, the other by virtue of her right under the general law controlling the rights of the widow in the real estate of her deceased husband.

But there is here a testamentary disposition of the whole estate of the decedent, embracing the homestead in general terms. It certainly will not be contended that the exemption of the homestead repeals the statute authorizing and 1egulating testamentary dispositions of property. It might as well be contended that the statute giving dower, in the real estate of the husband freed from his debts, had the same effect. We have already stated that the widow's right here is that of dower, and that she has no constitutional homestead right.

Under the will the testator directs that she "shall be paid quarterly, until his youngest child becomes twenty-one years of age, such a sum as shall be necessary to support her in the style in which we have lived for the five years next previous to my death, and when my youngest living child attains the age of twenty-one years, my estate, both real and personal, shall be divided equally between my wife and living child or children, share and share alike."

We have here a testate estate wherein the testator, who