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Wilson v. Fridenburg-Opinion of Court,

is the husband, makes express provision, considerable in amount, for his wife, and where such provision is of a character inconsistent with the claim or right of dower of the wife. It presents a case where, under our statute, the widow is put to an election whether she will accept the provisions of the will or take dower. 14 Fla., 354; 6 Ala., 236; 2 V. & B., 222; 2 Rop. on Leg., 414. At the common law no time was fixed in which an election should be made. Under our statute (McC.'s Dig., 475,) the time is fixed at within one year after the probate of the will. Now, under the terms of the will, the interest of the widow it is very apparent is of a different character from that which is incident to her claim or right of dower. The fact of dissent or acquiescence is in no manner alluded to in the proceedings before the Circuit Court or in the record here. How, then, can either administer the law of the case except upon a presumption, which, whatever its nature, may be contrary to the fact? In other words, the pleadings are iramed with reference to a homestead right of the widow, which never had any existence, and whether her right is as ciowress or as the beneficial object of a testamentary trust, cne or the other of which it must be, it is impossible to say.

The appellee here maintains, if we understand the matter, that the husband could devise the homestead for the benefit of his wife and children, and that such an act is not an alienation but is still effective to make the homestead right subject to the provisions of the will for the reason that the persons who are protected by the Constitution suffer no loss of rights or interests, but are properly and completely cared for, and that the mortgage being within the powers of the executrix, the wife, the homestead is bound. One case from Wisconsin is cited to sustain the proposition: 28 Wis., 88. This was not the case of a testamentary disposition of the

Wilson v. Fridenburg-Opinion of Court.

homestead. The husband there conveyed to a trustee for the benefit of his wife and children a part of his homestead. The court held that the statute providing that a mortgage or other alienation of a homestead by the owner thereof, if a married man, would not be valid without the signature of the wife, rendered the trust which was thus attempted to be created void, held that the legal estate passed to the cestuis que trust, that a conveyance directly by the husband to the wife would have been void at law, but that such a conveyance of the homestead to the wife, or to the wife and children with the consent and approval of the wife, was not prohibited by the statute.

Thus we see that the deed here, while not signed by the wife, was assented to by her, and its effect was held to be to pass the present legal title to her and her children.

A testamentary disposition, such as we have in this case, admitting for the sake of argument that a will by general terms embraces the homestead, has no such effect for the reason that the wife and children take in subordination to the creditor of the husband if the constitutional protection does not intervene, and the idea, as we understand it, is tiiat this is not an alienation for the reason that the wife and children are protected,—committere agnum lupo!

We do not understand any such result followed the doctrine in the case from Wisconsin. On the contrary, it was because no such result followed that the deed, although not “signed” by the wife, was made effective as not being an alienation of the homestead property prohibited by the statute. The homestead interest was not alienated from its intended purpose, the good of the family. It remained subordinate to it. But however this may be, the authorities in point are that the husband cannot devise the homestead. “The existence of such a right in the wife and children,” in this case in the children. “is clearly incompatible with the

Wilson ». Fridenburg—Opinion of Court.

exercise of such a power over it by him.” 100 Mass., 234; 37 Vt., 419; 25 Texas, 72; Thomp. on Hom., $544.

From what has been said, our views as to the rights of the widow and the heirs, in this case the children, under the Constitution, we think are disclosed so far as they are necessary to be stated.

An application of the law to the pleadings, as we understand it and them, results in the conclusion that the plea is à complete reply to the case made by the bill so far as Lot No. 2 is concerned. The case made by the bill is that of a mortgage executed by the wife and executrix under the powers of the will of the husband under the authority of the court upon a certain parcel of land and improvements thereon. The relief sought is foreclosure of mortgage and sale of the land and improvements. The plea is that the land sought to be sold, so far as Lot No. 2 is concerned, was the homestead of the testator and family, that he died leaving surviving him his widow and three minor children, who have since his death resided thereon. This plea sets up that there was no such interest in the mortgagor in the premises sought to be sold as was prayed for by the bill, and accepting every fact stated in the bill, and not denied by the averments of the plea, as true, and the facts set up in the plea as true, the result is, that the entire interest in the property mortgaged was in the infant children. It is insisted, however, that whatever interest the widow had in the homestead, is bound by her act as executrix. But the bill does not disclose any other interest except that of executrix with power of sale. As applicable to such a bill the presumption, when we seek to determine the case made by it,“ is against the pleader because he is presumed to state his case in the most favorable way for himself, and, therefore, if he has left anything material in doubt, it is assumed to be in favor of the other party.” The only interest the widow could have in this homestead is that of dower.

Wilson v. Fridenburg-Opinion of Court.

The homestead does not pass under the will, and if the widow has not made her election in the time fixed by the statute, she is confined to the will and has no dower right to bind by this mortgage executed years subsequent to the time fixed for her dissent.

As to the petition and authority granted to the executor to mortgage the homestead. The infants were not parties to it and are not bound. The bill and the pleas are so framed as to leave it in doubt whether the only order made was not one granting authority to the executrix to execute the mortgage alone and without the executor, because her coexecutor had been enjoined from further action as executor. How far this order is to operate as an estoppel as to the executrix, and what subject matter as to her is to be deemed adjudicated, we cannot determine upon this record.

It certainly does not operate to enable her to mortgage an estate of another person, which estate was not controlled by the will.

We conclude that the heirs, the children in this case, are in this State necessary parties in any suit affecting the homestead right upon the death of the owner thereof, and that as to them and as to the widow no case is made here so far as lot No. 2 is concerned. Nor is there any foundation for a decree against the executrix in this proceeding, so far as this lot is concerned, as the land embraced in the inortgage executed by her and sought to be foreclosed is the homestead, which is not the subject of a testamentary disposition by the husband, the head of the family and the owner of the property, in the sense that word is used in the Constitution.

The order overruling the pleas is reversed, and the case will be remanded with directions to the Circuit Court to enter an order allowing the pleas as to lot No. 2, and for such further proceedings as to lot No. five (5) as are consistent with this opinion and conformable to equity.

Brown v. Florida Southern Railway Co.-Statement of Case.

JAMES B. BROWN, APPELLANT, vs. The FLORIDA SOUTHERN

RAILWAY COMPANY, APPELLEE.

THE FLORIDA SOUTHERN RAILWAY COMPANY, APPELLANT,

vs. JAMES B. BROWN, APPELLEE.

I. An original incorporator in The Florida Southern Railway Company,

first known as The Gainesville, Ocala and Charlotte Harbor Railroad Company, was rot as such, independent of a contract with the Directors of the company, entitled under the charter of the corporation, on the common law controlling the subject, to a proportion of the stock, to be determined by the number of origi

nal incorporators named in the articles of incorporation. 2. A grant cf land by the State of Florida to a corporation having

power to make contracts for the purpose of accomplishing corporate purposes is not a grant to the original incorporators signing the articles authcrized by the general law of this State in the proportion in which they have subscribed for stock, nor does it authorize a division or an allotment of the land to the original

incorporators. 3. Stock is originally acquired in a corporation by a subscription there

for. This subscription is a contract defined and regulated by the organic law of the corporation. An incorporator is not entitled to stock as a mere gratuity. He can only acquire itby purchase or by subscription therefor, by which he contracts to pay calls and assumes the other liability to creditors and the company which such relation imposes.

Appeal from the Circuit Court for Alachua county.

The bill of complaint treats The Florida Southern Railway Company (the defendant) as the successor of The Gainesville, Ocala and Charlotte Harbor Railroad Company, praying process against "the defendant, The Florida Southern Railway Company, formerly The Gainesville, Ocala and Charlotte Harbor Railroad Company.” The Gainesville, Ocala and Charlotte Harbor Railroad Company was incorporated under the “act to provide a general law

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