Jones v. Shomaker

Citations

• 41 Fla. 232

Syllabus

<p>1. Where a devisee accepts the provisions of the will and goes into the possession of the land devised to her, by permission of the executor, and upon the understanding that the land will be surrendered when needed to pay debts, and such relation is never repudiated, such possession is not adverse in point of fact.</p> <p>2. The title of a devisee is derived from the will and does not vest until the testator’s death.</p> <p>3. A creditor who elects to accept a devise of real estate in a will in satisfaction of his claim, and thereby comes in under the will, has no rights superior to creditors of the estate. . By accepting the devise in satisfaction of his debt he must be regarded as doing so under the rule that all just demands against the estate must be paid as directed by statute before he can have any distribution-under the will.</p> <p>4. This court has ruled that if the parties go to trial on an immaterial issue tendered by plea, the- defendant has the right to have the trial court to charge the jury and submit to them, such issue; but it has not held that final judgment-should be entered upon the finding on such issue. Where a trial is had upon an entirely immaterial issue, not determining the rights of the parties, the court can not know for whom to give judgment. In such a case judment non obstante veredicto or repleader', should be awarded, and if this is not done, and judgment be entered upon the verdict, the appellate court will reverse the judgment, though it may not direct a judgment of repleader.</p>