Wilson v. Fridenburg

Citations

• 19 Fla. 461

Syllabus

<p>1. Under the Constitution of this State the right of a wife as to the homestead is confined to a power to prevent alienation by her husband, the head of the family, without her consent made jointly with him. But the Constitution does not, however, repeal the statute allowing dower in the estate of the husband, and this right exists as to the homestead.</p> <p>2. The exemption is from the debts of the head of the family, the owner of the homestead. It accrues to the heirs of the party having taken or enjoyed the benefit of it. Where such owner dies, leaving surviving him a widow and children, the right of the widow, if the estate is an intestate estate, is restricted to dower, and the benefit of the exemption as to the remainder of the estate in the homestead, after ^allowing dower, enures to the benefit of the children.</p> <p>3. If the estate is a testate estate, and the devise to the widow is inconsistent with dower, then the widow is put to her election between the will and dower, and if she does not elect dower within one year after the probate of the will she is confined to the will, in which event the benefit of exemption as to the entire homestead enures to the children, as the homestead is not the subject of a testamentary disposition by the head of the family.</p> <p>4. Where, in case of the wife surviving the husband, he dying testate, leaving her executrix with power of sale under the will, she executes a mortgage of the homestead under an order of court, the children surviving not being parties to such proceeding are not bound by it.</p> <p>5. To all proceedings affecting the homestead upon the death of the head of the family his heirs are necessary parties.</p>