A petition for rehearing suggests in effect that, in holding that the proceeds of life insurance policies are covered by and included within the statutes relating to dower, the court failed to distinguish between personal property, which the husband might own, use and enjoy during his life time, that is covered by the dower statute under the phrase "personal property," and a right existing in contract in favor of other parties who as beneficiaries may collect the proceeds of the insurance after the death of the insured, which proceeds the insured can never collect, use or enjoy for himself; that the court overlooked the effect of the use of the words "devise" and "bequeath" in the amendments to the Act of 1872; and that the court overlooked the effect of the Act of 1872 as amended to exclude the operation of the dower statute.
The statutory dower rights of a widow in the property of the husband have precedence over a devise or a bequest of his real or personal property by the husband. Secs. 3629-3630, Rev. Gen. Stats., 1920, Sections. 5493-5494, Comp. Gen. Laws, 1927. Life insurance is a peculiar species of personal property of the insured; and when it is payable to him or to his estate, it is under the statute payable not for the benefit of the estate of the insured but for the benefit of his wife and children exempt from the claims of his creditors. When life insurance "inures" to the widow and children of the insured under Sec. 7065, Comp. Gen. Laws 1927, it passes to the beneficiaries under that statute, and not under the statute of descents or under the dower statute.
When an insured bequeaths the proceeds of his life insurance, such proceeds pass by will as authorized by the statute, *Page 970 Sec. 7065, Comp. Gen. Laws 1927, and not by contract. The original Act of 1872 excluded the dower statute by giving the widow of the insured a portion of his life insurance equal to that of each of his children. The amendment of 1903 recognized a property interest of the insured in his life insurance payable as in this case, by authorizing the insured to bequeath the proceeds of such insurance. The amendment took from the widow her absolute right under the original statute to a share in such proceeds equal to each child of the insured, but the amendment made an authorized bequest of the insurance proceeds subject to the laws that regulate bequests of "any other property or effects" of the insured, and such bequests are subject to the dower statute.
Other petitions for rehearing suggest in effect that in holding the proceeds of life insurance to be property of the insured, subject to dower rights, but that such proceeds are not subject to the debts of the insured, the court denies to creditors of the insured the equal protection of the laws, and deprives creditors of property without due process of law; that the court held that when life insurance is bequeathed it passes by the will and becomes assets of the estate so as to be subject to the widow's right of dower, yet in denying creditors the right to payment from the balance of the insurance proceeds, the court construes and considers that the insurance passed under the statute; that the exemption portion of the statute is not applicable because the court holds that the insurance passed by will and not by contract and statute; that by bequeathing the insurance the insured waived the exemption features of the statute; that in exempting the life insurance from debts of the insured the organic exemption of $1,000.00 of personal property was exceeded and creditors deprived of property without due process of law; that the statutory exemption of life insurance from debts of the insured is effective only when the *Page 971 insurance passes under contract or statute and not when the insurance proceeds are made subject to testamentary disposition; "and that the proviso in said statute, enacted and inserted subsequent to the said exemption provision excludes such proceeds from the exemption created by the statute as contained in the original Act of 1872, when testamentary disposition is made affecting such proceeds."
All "personal property" or "personal estate" that isvalidly bequeathed, whether it be proceeds of life insurance or "any other property or effects," pass by will as may be authorized by statute, and not by contract or by statute. The holding here is that life insurance payable as in this case is personal property, though of a peculiar nature different from ordinary personal property or personal estate; that the insured has a property interest in his life insurance payable as in this case; that when life insurance proceeds are bequeathed under the statute, Sec. 7065, Comp. Gen. Laws 1927, such proceeds pass by will and not by statute; that a bequest of the proceeds of life insurance is by the same statute made subject to laws regulating bequests of other property or effects; that the operation of the statute securing dower rights in bequeathed personal estate, Sec. 5494, Comp. Gen. Laws 1927, is contemplated by Sec. 7065, Comp. Gen. Laws 1927, when by the authority of the latter statute the proceeds of life insurance are bequeathed; and that the statutory exemption of life insurance proceeds from the claims of creditors, is intended to remain effective though the statutory right to bequeath be exercised and the property passes by will and not by statute, since the main purpose of the statute is provision for the wife and children of the insured. While the statutory authority to bequeath the proceeds of the insurance takes away the widow's absolute right to a child's share, the statute recognizes the property interest of the insured in his life insurance, *Page 972 and the statute being designed for the benefit of the wife and children of insured, also contemplates the assertion of dower rights in such bequeathed proceeds if the widow is dissatisfied with the bequest as made, since the bequest must be in like manner as the insured may bequeath "any other property or effects," that are subject to testamentary disposition, and dower rights in property or effects of the insured are not "subject to disposition by last will and testament" of the insured unless the widow acquiesces therein. While a bequest is not subject to the statute of descents, the law assumes that the children of an insured will be provided for in bequests made by him, and the children of the insured are provided for in the bequest of the proceeds of his life insurance by the insured in this case.
The statute expressly exempts the proceeds of life insurance from any process in favor of any creditor of the insured, unless the insurance be effected for the benefit of creditors. Such exemption being for the benefit of the wife and children of the insured and the exemption being absolute when the insured leaves a widow or child, it applies when the insurance inures to the widow and children under the statute and also when the proceeds of life insurance payable as here are bequeathed by the insured, at least when the widow shares in the proceeds by the provisions of the will or by the assertion of dower rights, and the children are beneficiaries of the bequest of the insurance proceeds. The statutory exemption being of the proceeds of life insurance in which the insured has a property interest, but which proceeds are notowned or possessed by the insured in his life time, the organic exemption from the claims of creditors of one thousand dollars' worth of personal property owned by the head of a family, is by its own intendment not to be applied; so the statutory exemption controls, it not being *Page 973 in conflict with organic law, and no property right of creditors arising subsequent to the statute being violated.
A life insurance policy is a peculiar species of property, in the nature of a chose in action, that arises out of contract. It is generally not for the use of the insured, and the proceeds of the insurance are usually not payable until after the death of the insured. These and other attributes distinguish life insurance from other species of property. It may be dealt with as property subject to the contract rights and to applicable provisions and rules of law. Controlling laws may justly classify life insurance for separate and appropriate regulation, as to its acquisition, its transfer or assignment, its beneficiaries, its descent or other disposition, and its exemption from the debts of the insured. In view of a father's duty to provide for his wife and children, the statute enables him to procure insurance on his life payable to him or to his estate which insurance under the statute, at his death, "shall inure exclusively to the benefit of" his wife and children, when not validly bequeathed by the insured. Such insurance is property of a nature peculiarly suited to meet family exigencies and it is not a part of the general assets of the estate of the insured which the law contemplates may at his death be used for paying debts of the insured. See Central Bank v. Hume, 128 U.S. 195.
A life insurance policy confers upon duly designated beneficiaries a right to receive the proceeds thereof, viz: a stated sum of money that is usually payable after the death of the insured.
The proviso to Sec. 7065, Comp. Gen. Laws, 1927, is intended to confer additional rights upon an insured, and not to take from or put any limitation upon, the proceeding provisions, except as is done by the terms of the proviso; *Page 974 and such proviso does not affect the exemption contained in the section.
The Act of 1872 providing that life insurance payable as here shall inure exclusively to the wife and children of the insured, and making the insurance proceeds exempt from debts of the insured, are predicated upon a public policy to aid and encourage the making of suitable provision for the family without unduly curtailing the property that is generally subject to the claims of creditors. The original statutory distribution of the proceeds, if the insurance payable as here be left at the death of the insured, was absolute to the widow and children of the insured in equal portions, leaving no right in the insured to so apportion the proceeds as to conserve varying conditions of families. Exigencies of the family might require other and different distributions to best conserve the family welfare.
The insured might have three or more children who do not need an equal share in his insurance money, while his wife might need more than an equal share therein with each child. Or when there is one child the widow might need or be willing to accept in lieu of dower, less than one-half of the insurance proceeds. Other varying family circumstances made expedient and appropriate the amendments to the statute which authorize a testamentary disposition of life insurance proceeds different from that stated in the original statute; but while the amendments take away an absolute right of the widow to a child's part of the husband's life insurance which was given by the statute and was in lieu of dower, such amendments show an intent that other provisions of law regulating the statutory right of testamentary disposition of property in the interest of the family, shall be applicable when the right *Page 975 to bequeath life insurance proceeds conferred by the amendment is exercised.
The amendment of 1897 applying "When the insurance is for the benefit of the estate of the insured, or payable to said estate," authorized the insured to bequeath the proceeds of his life insurance "in like manner as he may devise any other property or effects of which he may be possessed, other than his homestead." The word "devise" is technically and more properly applicable to real estate, and the word "bequeath" is more technically applicable to personalty. Neither of the words is always used in its technical sense. The reference in the amendment of 1897 to the "homestead" of the insured, was unnecessary or else not sufficiently comprehensive, since under the Constitution a homestead can not be devised by its owner if he has a child or children. Later, Chap. 4730, Acts of 1899, provided that the homestead "shall not be the subject of devise," if the owner "shall die and leave a widow surviving him, but no children." In this state of the law, the amendment of 1903 to the original Act of 1872 as amended in 1897, was enacted, which provides that "whenever the insurance is for the benefit of the estate of the insured or is payable to the estate or to the insured, his or her executors, administrators or assigns, the proceeds of the insurance may be bequeathed by the insured * * * in like manner as he or she may bequeath or devise any other property or effects of which he or she may be possessed, and which shall be subject to disposition by last will and testament." Under this amendment the insured can bequeath the proceeds of his life insurance only when it is left at his death payable as stated in the statute and then only "in like manner as he may bequeath or devise any other property or effects * * * which shall be subject to" testamentary disposition. The amendment does *Page 976 not relate to the manner of executing wills, but confers upon the insured authority to bequeath life insurance which the preceding part of the statute provided should "inure exclusively to the benefit of his or her child or children, and husband or wife in equal portions."
The intent of the statute as applicable to a married man is to benefit his wife and children; and the amendment of 1903, now in force, is intended to authorize the insured to bequeath to any person or use, the proceeds of his insurance payable as in this case, subject to the laws regulating the bequest or devise of any other property or effects of his. If such proceeds are bequeathed the statutes regulatinginheritance may not apply, but the statutes securing dower rights do apply unless an intent to exclude dower rights is clearly shown. Dower rights cannot be excluded by will, while the right to inherit may be excluded by will. The statutory authority to bequeath the proceeds of life insurance shows no intent to exclude statutory dower rights, but in effect provides that the bequest shall be controlled by laws regulating bequests of other property or effects of the insured.
When life insurance payable as here comes into existence as a peculiar species of property it is in this State controlled as to its disposition by a statute that is appropriate to the nature of the property. The statute regulating the disposition of life insurance proceeds could have excluded the wife of the insured from any dower or other right therein, when the insurance is payable as in this case; but instead, the original act expressly provided that at the death of the insured such insurance shall inure exclusively to his wife and children in equal portions, thus showing an intent to make the widow as well as the children of the insured beneficiaries of the insurance, by providing for the widow to *Page 977 receive a stated portion of the insurance, which of course would be in lieu of dower.
While the proceeds of life insurance payable after the death of the insured were not and could not have been in the possession of the insured at his death, and while he did notown the proceeds of the life insurance that were payable only after his death, yet he had a property interest in the insurance on his life that is recognized by the statute and that is primarily for the benefit of his family though payable after his death, and the statute in authorizing the insured to bequeath the proceeds expressly required it to be done in like manner as he may bequeath any other property or effects of which he may be possessed, and which shall be subject to disposition by last will and testament, thereby intending that rights in the proceeds could not be bequeathed, if like rights in "any other property or effects" of the insured could not be bequeathed; and dower rights in other property or effects of the insured are not subject to testamentary disposition.
Secs. 1 and 2, Article IX of the Constitution of 1868, provided for an exemption of homestead real estate and the improvements thereon, "owned by the head of a family residing in this State," "together with one thousand dollars' worth of personal property" and also for the exemption of additional property to be selected by the head of a family "to the amount of one thousand dollars," which constituted greater property exemptions from debts than those contained in Article X of the Constitution of 1885; yet the Act of 1872, Chap. 1864, enacted while the Constitution of 1868 was in force and providing that the proceeds of life insurance shall not be liable to any legal process in favor of any creditor of the insured unless the insurance policy declares that the policy was effected for the benefit of such creditor, was apparently not regarded as being violative of *Page 978 the exemption article of the Constitution of 1868, even though such proceeds exceed in amount the organic exemptions.
Article X of the Constitution of 1885 provides that "a homestead to the extent of" a stated acreage of real estate and improvements thereon, "owned by the head of a family residing in this State, together with one thousand dollars' worth of personal property * * * shall be exempt from forced sale," with specified exemptions. "The exemptions * * * shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts except as specified." "The exemptions provided for in the Constitution of 1868, shall apply to all debts contracted and judgments rendered since the adoption thereof and prior to the adoption of this Constitution."
The organic provision of 1885 that "one thousand dollars' worth of personal property * * * shall be exempt" has reference to the personal property owned by the head of a family residing in this State as the ordinary and usual personal assets of his estate, and does not necessarily relate to personal property lawfully acquired for a lawful purpose distinct in its nature and uses from his ordinary or general personal estate. The organic exemption, of course, does not extend to property not owned in a beneficial right; and life insurance in any amount may lawfully be acquired by the head of a family payable after his death for the benefit of his wife and children, which the statute may exempt from the claims of subsequent creditors without violating any right of such creditors, since the organic provision exempting a stated amount of the general personal property of the insured is not exclusive and is not a limitation upon any and all statutory exemptions in property of any kind or nature. The organic exemption was not intended to apply to life insurance acquired and payable as in this *Page 979 case, for the reason that such insurance is a peculiar species of property payable for the benefit of the family after the death of the insured, and the proceeds collectable after his death, are not a part of the "personal property" owned by the head of a family as contemplated by Article X of the Constitution of 1885. It is not contended that the insurance in this case was obtained in fraud of creditors. But it affirmatively appears that the insurance was obtained by the insured "when he was both solvent and wealthy." The insurance policies had not been assigned as in Eppinger, Russell Co. v. Canepa, 20 Fla. 262.
When the Constitution of 1885 was promulgated and adopted, Chap. 1864, Acts 1872, exempting life insurance from the claims of creditors of the insured, where such insurance is not effected for or payable to creditors, was in force, and its validity not challenged. It was evidently not the intent of the Constitution of 1885 that the exemptions provided for therein should supersede or limit the amount of the then existing statutory exemption of the proceeds of life insurance policies made payable by the statute not to the estate of the insured but for the benefit of his widow and children.
The provisions of the Constitution of 1885 recognize the rights of creditors that are not inconsistent with lawful exemptions, and command that real and personal propertyowned by the head of a family residing in this State, to the extent therein stated "shall be exempt;" but such provisions relate to the ordinary classes of personal property and do not expressly or by intendment forbid or limit the exemptions of life insurance proceeds that are payable after the death of the insured, which proceeds were then allowed as exemptions by the Act of 1872 for the benefit not of the insured or his estate but for the benefit of the widow and children of the insured, such insurance not *Page 980 having been effected or duly declared to be for the benefit of creditors.
It has been held that the organic provisions relative to those who may be excluded from holding office are not exclusive, and that the maxim expressio unius est exclusioalterius should be applied with great caution to organic provisions. State ex rel. v. Bryan, 50 Fla. 293, 39 So. R. 929. See also State v. Jacksonville Term. Co., 41 Fla. 377, 27 So. R. 225; Thomas v. Williamson, 51 Fla. 332, 40 So. R. 831; Saxon v. Rawls, 51 Fla. 555, 41 So. R. 594.
In State ex rel. West v. Butler, 70 Fla. 102, 69 So. R. 771, organic provisions relating to the jurisdiction of courts was construed to be strict limitations; but here the organic provisions relate to family welfare and they should be liberally interpreted to conserve the salutary public policy.
The property exemption article of the Constitution should be liberally construed in favor of those for whose benefit it was intended, when the rights of others are not unduly prejudiced. The organic provisions as to exemptions should not be applied to statutory exemptions of the peculiar property of life insurance intended for the benefit of the family of the insured after his death, when such life insurance does not clearly constitute a part of the "personal property" owned by the head of a family, referred to by the Constitution in allowing exemptions from the claims of creditors. Such statutory exemptions do not prejudice the rights of subsequent creditors. See Re Le Blanc, 142 La. 27, 76 So. R. 223, L. R. A. 1917 F. 1137.
After the Act of 1872 creditors of an insured had no interest in or right to expect payment from the debtor's life insurance unless it was effected or made payable for their benefit; and the statute takes nothing from creditors of an insured. Ordinarily exemptions apply to debts incurred after the exemption laws become effective. This accords *Page 981 with the decision in Bank of Minden v. Clement, 256 U.S. 126.
The family home place and the personal property exemption obviously were, as a matter of public policy, not regarded by the law making power of the state even before the adoption of the Constitution of 1885, as being in all cases sufficient for the needs of widows and children; and it seems entirely appropriate that under Chapter 1864, Acts of 1872, now in force, the insurance on the life of a husband, payable as in this case, being a peculiar species of property having a special intimate personal relation to the family exigencies, should be exempted from claims of creditors of the insured for the benefit of the surviving widow and children of the insured, when such insurance is payable after the death of the insured and was not "effected for the benefit of such creditors," or for other persons as "declared in the policy."
If when debts are incurred, the creditor has no right to subject particular property of the debtor because it is by law exempt from creditors' claims, such creditors are not injured by the exemption, and they are deprived of no rights because of the exemption.
The amendments of 1897 and 1903 do not change the nature of the life insurance, but expressly confer a statutory right to bequeath the proceeds of insurance policies that had been taken away by the original Act of 1872, wherein the latter act required life insurance payable as in this case and left so payable at the death of the insured, to inure exclusively to the widow and children of the insured in equal portions. But such amendments do not affect the exemption from debts that is contained in the Act amended, or the statutory dower rights when the insurance is bequeathed. The Act as amended, Sec. 7065, Comp. Gen. Laws 1927, retains the exemption from such debts and is *Page 982 not inconsistent with the dower rights conferred by the dower Act of 1828, now Sec. 5494, Comp. Gen. Laws 1927.
In Pace v. Pace, 19 Fla. 438, it was held that under the Act of 1872, a policy of insurance payable "for the benefit of the estate of the insured," did not pass to the administrator of the insured, but inured exclusively to his only child, there being no widow of the insured, and that no interest in the policy passed to the assigns of the insured, who became a bankrupt before he died. Contrary expressions appear in In re D. F. C. P. Long, 282 Fed. 383; In re Morgan, 282 Fed. 650, and Morgan v. McCaffrey et al., 286 Fed. 922, where Federal Bankruptcy Laws and the cash surrender value of life insurance policies were being considered, upon the theory that the exemption of such life insurance from claims of creditors of the insured does not apply until the death of the insured. See Holden v. Stratton, 198 U.S. 292, 49 L.Ed. 1018, 25 Sup. Ct. 656; 50 L. R. A., 33; Burlingham v. Crouse, 228 U.S. 459, 57 L.Ed. 920, 33 Sup. Ct. 564. Here the insured was not adjudged a bankrupt, but died. Under the statute as amended in 1903, the proceeds of the insurance may be bequeathed by the insured, when payable as here, but pursuant to the statute the insurance remains exempt from the claims of creditors of the insured, it not having been "effected for the benefit of such creditors." A policy of insurance payable as in this case becomes a special and peculiar species of property acquired by the insured, which insurance is under the statute, not for the benefit of the insured or his estate, but for the benefit of the wife and children of the insured to be available after his death; so the organic exemption of "one thousand dollars' worth of personal property," "owned by the head of a family residing in this State," is not applicable. *Page 983
By authorizing the insured to bequeath insurance on his life when it is payable, as in this case, the amendment to the statute does not change the nature of the insurance as a special and peculiar property for special uses and purposes, but merely permits the insured in order to meet the possible exigencies of the family requirements, to make by will a disposition of the proceeds of the insurance different from that stated in the statute.
The Act of 1872 being valid as a statutory exemption, the authority given by the amendments of 1897 and 1903, to bequeath proceeds of insurance payable as here, does not destroy the exemption that is a part of the amended statute or prevent the operation of the dower statute that controls a bequest of property or effects by a married man. The exercise by the insured of the right to bequeath the proceeds of the insurance does not and cannot waive either the exemption provision of the statute or the widow's dower rights, when the insurance is payable as in this case and the insured leaves a widow and children. The exemption was intended for the benefit not of the insured but of the wife and children of the insured, who under the statute may become entitled to the proceeds of the insurance.
The husband cannot waive the dower rights of the wife. The statute as amended intends that the exemption from debts of the insured contained in the original Act, shall continue in force if the insurance proceeds be bequeathed under the amendment to the statute for the benefit of his children as was done in this case, the widow having her dower rights.
In Talcott v. Bailey, 208 N.W. R. 549, relied on by counsel, the will did not include the insurance policy which the statute required to be "distributed to the heirs" of the insured; and it was held that because of the statute the heirs took by contract and not by descent.
In this case the proceeds of the insurance apparently were *Page 984 collectable only after the death of the insured, and being payable as above stated, such proceeds were under the statute for the benefit of the wife and children of the insured; and the statute exempted the proceeds from the claims of the creditors of the insured whether the proceeds inured under the statute or are bequeathed. If the policies had not been bequeathed, the insurance being exempted from the claims of creditors would, under the statute, have inured to the widow and two children of the insured in equal portions; and such beneficiaries would then take, not by dower and descent, but under the statute operating on the policies. The insurance policies were so payable that under the statute the proceeds thereof may be bequeathed in like manner as other property or effects. The policies were left so payable at the death of the insured and they were included in the provisions of the will of the insured. Though not collectable till after the death of the insured, such proceeds passed by the will under Section 7065, Comp. Gen. Laws 1927, in like manner as "any other property or effects" that may be disposed of by last will under Sec. 5457, Comp. Gen. Laws 1927, subject, like other property or effects bequeathed under said Sec. 5457, to the widow's dower rights under Sec. 5494, Comp. Gen. Laws 1927, but not subject to the debts of the insured, because the statute expressly exempts the proceeds of such insurance so payable from the claims of creditors of the insured, whether such proceeds pass by statute or by bequest, and such statutory exemption, not being in conflict with organic law, is valid and controlling in this case. The statute exempting life insurance from the debts of the insured does not deprive creditors of the insured of any rights existing when the insurance was acquired by the insured.
Rehearing denied. *Page 985
STRUM AND BROWN, J. J., AND JOHNSON, Circuit Judge, concur.
ELLIS AND BUFORD, J. J., dissent.
TERRELL, C. J., disqualified.