D. P. Davis died testate leaving insurance on his life. His will was probated in Hillsborough County in November, 1926. Arthur Y. Milam and the First National Bank of Tampa were named in the will as "Executors and Trustees."
Davis left surviving him a widow and two children by a former marriage. His estate, exclusive of the proceeds of the insurance policies is probably insolvent. The proceeds of the policies of insurance, which policies were made payable one to himself and the other to the estate of the insured or to the insured, his executors, administrators or *Page 954 assigns, have been collected by his "Executors and Trustees." The amount collected was upwards of $200,000.00.
The will directed that the just debts of Davis be paid including sick-bed and funeral expenses. There was a bequest of $25,000.00 to the Children's Home Society of Florida. Mrs. Harriett Mann was named in the will as guardian of the "persons and estates" of the two minor children, George and David. The "rest and residue of the property of every kind and nature whatsoever and wheresoever situated" belonging to the testator at the time of his death, or in which he had any interest "including policies of insurance" on his life, he gave, devised and bequeathed to Milam and the Bank "as trustees for the following uses and purposes."
Then follows specific directions as to the management and disposition of the property. The testator's father should be paid $2,500.00 per year during his life. The guardian of the two children, Mrs. Mann, should receive a like sum per annum during the continuance of her guardianship; the two children to receive each $5,000.00 per annum, or so much thereof as might be necessary for support, maintenance and education during their minority and as each became of age he should receive a like sum of money until he became thirty-one years of age, at which time each should receive one-half the corpus of the estate, subject to certain conditions unnecessary to mention here. No provision was made for the widow. The will defines the powers that the "Trustees" may exercise concerning the management and control of the estate. These powers it is unnecessary to enumerate here.
The widow, Mrs. Elizabeth Nelson Davis, dissented from the terms of the will and claimed dower in the estate and instituted proceedings in the Circuit Court of Hillsborough County to have her dower set apart. *Page 955
In view of the probable insolvency of the estate exclusive of the proceeds of the insurance policies the question arose whether the proceeds of such policies, in view of the attempted disposition of such proceeds by will, became part of the estate of the testator and therefore subject to the claim of creditors, the widow's claim for dower and the payment of special legacies bequeathed by the testator, or did they pass under the terms of the will apart from the estate of the deceased to the "Trustees" in trust for the two minor children to be paid out and managed as the will directed for their exclusive benefit.
The two minor sons, by their next friend and guardian Mrs. Mann, and the latter in her own right, exhibited their bill in the Circuit Court for Hillsborough County against the "Trustees" Milam and the Bank; Mrs. Elizabeth Nelson Davis, the widow; The Children's Home Society; George R. Davis, father to the deceased; Tiffany and Company of New York and Floyd Hurst of Virginia, the two last named being creditors of the deceased, and prayed that the Court should construe the will; that the proceeds of the insurance policies should be determined not to be subject to the debts of the deceased; nor subject to the claim of the widow for dower; that the proceeds of the policies be declared to be a trust fund to be administered by the "Trustees" and not by the "Executors" and that the latter be ordered to turn over the proceeds of such policies to the "Trustees" named in the will to be held and disposed of according to the terms of the will, and for general relief.
Answers were filed by the "Trustees" and other defendants severally.
The case was heard on bill and answer, and in April, 1927, the chancellor rendered his decree holding: First, that the proceeds of the insurance policies were not subject *Page 956 to the debts of the deceased; second, that such proceeds were not subject to the widow's claim for dower nor to the payment of the legacy to the Children's Home Society; third, that such proceeds passed under the fourth clause of the will to Milam and the Bank as trustees, "not as executors," for the purpose stated in the fourth paragraph of the will; fourth, that the proceeds of the policies of insurance constitute a trust fund to be administered by the trustees, as such and not as executors; the fifth and sixth paragraphs of the decree relate to matters pertaining to the administration of the trust fund.
From this decree the "Trustees," the widow, the Children's Home Society, George R. Davis, Tiffany and Company and Floyd Hurst appealed. The decree of the Chancellor was affirmed by a divided court at the June Term, 1928.
A petition for a rehearing was granted and the case was again orally argued in December, 1928. The case had been thoroughly briefed by able counsel, who have been of much assistance to the Court in considering the single question involved.
The will of the testator was made on the 25th day of May, 1925. It was filed for probate in November, 1926. It does not appear from the pleadings or the decree where Davis died or when he was married to the defendant Elizabeth Nelson Davis, but it does appear that as late as October 5, 1926, he executed his promissory notes to Tiffany and Company in the sum of $19,000.00, and in some of the briefs it is asserted that he married the defendant Elizabeth after the date of his will. It does not appear from the pleadings that Davis died in this State, or that he was a citizen of this State. The will was signed by the testator at Tampa, Florida.
The cause, in the opinion of a majority of the Justices *Page 957 of the Court should be remanded with directions to reform the decree so as to "award the widow her dower rights in the proceeds of the insurance policies."
As the decree is not directed to be amended in other respects it is probably intended to be affirmed in so far as it holds that the proceeds of the insurance policies are not subject to the claims of creditors, or to the special legacy to the Children's Home Society, but are subject to the payment of the annuity bequeathed to George R. Davis for life and the payment of the annuity to the guardian of the minor children during the guardianship, and further subject to the "terms of the trust created by the said last will and testament."
It is clear from a careful reading of the will that it was the testator's purpose that his debts, including sick-bed and funeral expenses and the special legacy to the Children's Home Society, should be paid out of property that he might own or have an interest in at the time of his death, and that the "rest and residue" of such property "including policies of Insurance" on his life should go to Milam and the Bank as trustees for the purposes set forth in the will. There was no effort by the testator to deal directly with theproceeds of the policies of insurance as a certain or specific fund to be devoted to a certain use. The "policies of insurance" along with the "rest and residue" of the testator's estate after the payment of debts and the special legacy to the Children's Home should constitute a fund to be devoted to a certain purpose mainly the support and education of his two children until they arrived at the age of thirty-one years when what was left of the fund, whether decreased or increased by the management of the trustees, should be divided between the children. *Page 958
In the meantime the trustees were empowered to sell and convey any portion of testator's "estate," make contracts and execute conveyances to purchasers; to carry on any business or enterprise in which the testator might be engaged; to borrow money and secure same by mortgage or pledge; to lease any portion of the estate for a term of years; to compromise and settle any claims against or in favor of the "estate"; to acquire by purchase or otherwise additional property real or personal; to carry on the business of the "estate"; to acquire stock in other enterprises; to improve real estate and build houses; to lend money on mortgages or other securities and to "do and perform such other acts and things as in their judgment may be for the benefit of my estate."
A distinction was made in the will and observed in the decree of the lower court between the powers of Milam and the Bank as "Executors" of the will and as "Trustees" of the fund so created. The powers and duties enumerated in the fourth and fifth paragraphs of the will were to be exercised and discharged by the "Trustees."
In view of the insolvency of the estate of the testator, exclusive of the proceeds of the insurance policies, the question arose as to whether such proceeds became part of the estate of the testator upon the probate of the will.
Now, as the widow's claim for dower, which in this case amounts to one-third of the personal estate in preference over all other claims and free from all liability for the debts of the decedent, Sec. 5494 Comp. Gen. Laws 1927, the amount of her dower would be augmented by the one-third portion of the insurance proceeds if they are considered as part of the personal estate of the decedent, which is the claim definitely set up in her answer.
It appears from the answer of the executors and trustees that the United States Government has a claim upon *Page 959 the estate approximating $100,000.00 for back income taxes and that in view of their information the assets of the estate, exclusive of the proceeds from the policies of insurance, would probably be insufficient to pay other claims. The trustees and executors aver that depending upon the application of the proceeds of the policies the estate of the decedent will be solvent or insolvent.
Now, if the proceeds of the insurance policies became part of the decedent's estate, it may be sufficient to pay the claim of dower, all creditors, the Government's claim for back taxes if established, the special legacy to the Children's Home Society and other special legacies, but nothing left for the two minor children to whom it is claimed the "rest and residue" of the estate after the payment of debts and the special legacy to the Children's Home Society was bequeathed and devised.
So, the question presented by the pleadings in this case is: whether the proceeds of the insurance policies became on the probate of the will part of the decendent's personal estate or whether under the proviso to Sec. 4977 Rev. Gen. Stats. 1920 such proceeds were validly bequeathed to Milam and the Bank as trustees for the uses exclusively as set out in the will.
In the case of Woodberry v. Matherson, 19 Fla. 778, the Court defined the word "dower" as follows: "Dower, in its technical and popular acceptation, refers exclusively to real estate, and according to Blackstone 'has reference to that portion of the lands or tenements of a man, which his widow enjoys during her life, after the death of her husband.' In this State, however, it has a broader signification by statute, including her interest, not only in the realty, but also in the personalty of her deceased husband. (Laws 1828, 1838) 10 Fla. 258." That opinion was rendered in the year 1883. *Page 960
The law upon the subject of dower, as expounded in that case, has not been modified by statute nor the opinion of the Court overruled, limited or criticised to the present day. The statute upon the subject is a hundred years old. Therefore, unless life insurance proceeds become part of the personal estate of the decedent there can be no question of dower in such proceeds. Whatever may be the widow's interest in such proceeds it is a misuse of terms to call it "dower." The case of Burdett v. Burdett, 26 Okla. 416, 109 Pac. R. 922, and reported in 35 L. R. A. (N. S.) 964, definitely holds that under the provisions of the statute of that State and Indian Territory, the proceeds of life insurance policies payable to insured or to his executors are the separate property of the insured and "if not otherwise disposed of by him go to his executors as part of his estate, subject to the widow's dower."
All the authorities cited in the majority opinion, both statutes and decisions, support the proposition that "dower" is a widow's interest in the estate of her deceased husband who died seized and possessed of property and in the absence of a statute providing otherwise, the proceeds of life insurance policies payable to the insured or his executors, administrators or assigns are subject to "dower rights like other personal estate of the insured."
It follows therefore that if Mrs. Elizabeth Nelson Davis, the widow of the decedent, has any interest whatever in the proceeds of the insurance policies one of two propositions must be true; the proceeds of the policies must have become part of the personal estate of the decedent upon the probate of the will or she must claim as a beneficiary under the policies.
Now the statute, Sec. 4977 Rev. Gen. Stats. 1920, definitely takes the proceeds of such policies of life insurance payable to the insured or his executors or to named beneficiaries *Page 961 out of the estate of the decedent and places them beyond the reach of creditors by any legal process unless such policies declare that they were "effected for the benefit of such creditor or creditors."
It is inescapable therefore that those who have any interest in the proceeds of life insurance policies take as beneficiaries under the policies and not as widow and heirs of the decedent. Even creditors of the decedent, if they take any interest at all, must take as named beneficiaries.
Life insurance is a matter of contract between the insurer and the insured and the rule obtains that where a person is named as beneficiary such person acquires a vested interest in the policy which cannot be divested without his consent unless the right is reserved in the contract. See Cook on Insurance p. 126; Stringfellow v. Alexander, 96 Fla. 1, 117 So. R. 899.
It is a settled rule that the assured in an ordinary life insurance policy cannot, by his will, change the beneficiary designated in the policy. Virgin v. Marwick, 97 Me. 578, 55 Atl. R. 520. Also see note in In Re Harton's Estate, 213 Pa. St. 499, 62 Atl. R. 1058, 4 L. R. A. (N. S.) 939.
In the year 1872 the Legislature by Chapter 1864, Sec. 2347, Rev. Stats., merely supplied as beneficiaries the children, husband or wife of the insured in cases where a person should die in this State leaving insurance on his or her life in which there were no described beneficiaries showing affirmatively that the children, husband or wife, were intended to be excluded. See Pace v. Pace, 19 Fla. 438.
In the above case Mr. Justice WESTCOTT quoted approvingly the rule, which was considered as supported by the "great weight of authority," that the beneficiary under a life policy has a valuable interest which becomes vested and passes beyond the control of the assured upon its execution and delivery. Construing the statute, he said: "To allow *Page 962 participation the proceeds of the policy, by any person other than the children, husband or wife of the assured, the policy must in terms state that it was for some other person, creditor or creditors"; that " There can be no exclusion of these parties, unless the purpose to exclude them is manifest and without doubt, and the purpose must appear as we have stated." It was held that the administrator held no interest as such in the proceeds of the policy.
In the case of Eppinger, Russell Co. v. Canepa, 20 Fla. 262, in an opinion by the same learned justice speaking of life insurance and the assured said: "He had a right to direct to whom it should be paid. Insurance policies other than those payable before death, are ordinarily taken out for the benefit of some third person or class of persons, and not as a mere investment for the benefit of creditors. It was in view of this supposed intention that our statute was enacted."
The amendment of 1897, Chap. 4555, Sec. 3154, Gen. Stats., consisted of a proviso to Sec. 1 of Chap. 1864, Laws 1872. It merely secured to the insured the power to bequeath the proceeds of insurance taken out upon his own life for the benefit of his estate to any person for any use in like manner as he might bequeath or devise any other property or effects other than his homestead.
This statute as amended was construed by this Court in the case of Maclean v. Fisher, 60 Fla. 331, 53 So. R. 614. It was held that under the provisions of the statute a man could bequeath the proceeds of life insurance taken out upon his own life for the benefit of his estate to another person to the exclusion of his wife.
In explanation of this construction of the statute, it is said, in the majority opinion in the instant case, that Mrs. Maclean, the widow, "claimed as sole heir at law and not a dower right." It is true that the bill alleged that Mrs. Maclean *Page 963 was the widow of Alexander Suter Maclean; that he died leaving insurance on his life payable to himself, his executors and assigns; that he died testate and by his will bequeathed and devised "all his property, real, personal and mixed," to Augustus Alston Fisher, "particularly naming and specifying in said last will and testament the proceeds of the said two life insurance policies." It was alleged that he left "no property of any kind or description, real, personal or mixed, save and except the said two life insurance policies." She claimed, it is true, that the proceeds of the two policies inured exclusively to her benefit, there being no child or children. Fisher had been the executor of Maclean's will and the beneficiary of the will. The prayer was for an accounting against the administrators of Fisher's estate of what was due and owing to Mrs. Maclean by that estate; that the defendants be required to pay to her "what shall be found properly to be due on taking the account" and that she have such other and further relief as should seem meet and proper.
The Court said: "Under this statute we are clearly of the opinion that Alexander S. Maclean had the lawful right by his will to bequeath the proceeds of the two policies mentioned in the bill, as he did do, to Augustus Alston Fisher, and that under said will the latter became on the death of said Maclean entitled to the proceeds of said life policies."
What the court decided was the right of Maclean to bequeath the proceeds of the two policies to any person whatsoever for any use. It was the law when that case was decided, as it is now, that the wife's statutory dower rights in her husband's property are not only superior to the husband's will but those dower rights are more liberal to the widow that were the common law dower rights, Herzog v. Trust Company, 67 Fla. 54, 64 So. R. 426; that a widow's dower becomes vested by statute upon her husband's death *Page 964 and it is unnecessary to take action to secure it. Serkissian v. Newman, 85 Fla. 388, 96 So. R. 378.
It has been the law since 1828 that a widow's dower in personalty where her husband dies intestate or makes his last will and does not make provision for his wife therein, consists of one-half of the personalty if there be one child or no children, but if there be more than one child then it consists of one-third of the personal estate and the claim has preference over all others, and the share shall be free from all liability for the debts of the deceased. See Sec. 5494, Comp. Gen. Laws 1927.
If Mrs. Maclean's dower rights became a vested interest upon the death of her husband, how did such interest become divested? If under her dower rights she had a vested interest in one-half or one-third of the proceeds of her husband's life policies the court had the power under the prayer for general relief to award it out of the proceeds.
It would be quibbling with justice to say that although she had a vested interest in fee simple in half of the proceeds, yet as she asked for all she should be awarded nothing. Such a position could be sustained neither in law nor morals.
I am, therefore, impelled to conclude that in the Maclean case the court held that the proceeds of the life policies were validly bequeathed by the testator to Fisher to the exclusion of any claim of the widow whether as heir, or for dower, or as a beneficiary under the policies.
The Act of 1903, Chap. 5165, made no material amendment either in the statute proper or the proviso.
The function of a proviso is to limit the language of the legislature. It will not be deemed intended from doubtful words to enlarge or extend the act or the provision on which it is engrafted. Sutherland on Statutory Construction p. 297; 36 Cyc. 1161. *Page 965
It restrains or modifies the enacting clause, excepting something from its operation which otherwise would have been within it. Only those cases that are fairly within the terms of the proviso are taken out of the operation of the statute by it. Futch v. Adams, 47 Fla. 257, 36 So. R. 575.
The majority opinion rests upon the theory that the widow of the decedent has a dower right in the proceeds of the policies of insurance. It is said that if the proceeds of the policies "pass under the will they are like 'other property or effects' of a married man subject to the dower rights of his wife even as against his last will and testament if she duly asserts herdower rights." I do not agree to that statement of the law. It is not justified in my opinion by any statute of this State or any decision of this Court or the general law of life insurance.
The statute merely declares who the beneficiaries of life insurance policies shall be in cases where the policies are made payable to the insured, his or her executors or his or her estate, reserving and limiting to him or her the right to bequeath it to any person whomsoever for any purpose to the exclusion of heirs or widow or husband, as the case may be.
The majority opinion, as well as the concurring opinion of MR. JUSTICE BROWN, seems to agree to the following propositions:
First, in the absence of statute the proceeds of life insurance, where the policies are payable to the insured or his or her estate or his or her executors and administrators, become upon the death of the insured part of his or her personal estate only in the event he dies leaving no widow or children. If he leaves wife and children they take as beneficiaries under the policies and not as widow and heirs; *Page 966
Second, that under Chap. 1864 Laws of 1872 such insurance inures exclusively to the benefit of the child or children, husband or wife, in equal portions and shall not be liable for the claims of creditors;
Third, that under the provisions of the same statute, as amended in 1897 by Chap. 4555 and 1903 by Chap. 5165, such insurance inures to the benefit of the same persons, viz: child or children and husband or wife of the insured in equal portions but that under the proviso adopted in 1897 and amended in 1903 the insured may bequeath the proceeds of the insurance to any person for any use;
Fourth, that when such insurance proceeds are bequeathed by a man who leaves a widow surviving him and makes no provision for her in his will or such provision as does not meet with her approval she may dissent from the "disposition made of such insurance by the will, she may have her dower of one-third therein."
I am unable to accept the last proposition. It is difficult to understand how the wife's interest in life insurance proceeds under the provision of the statute being the interest of a beneficiary may become a "dower" interest in the proceeds of the insurance if the husband makes a will in which he bequeaths the proceeds of the insurance to a person other than the wife but which proceeds never became a part of his estate. The statute provides that the insurance shall inure exclusively to the benefit of the "children and husband or wife of such person in equal portions" where no bequest of the proceeds is made to another. The language of the statute cannot be reasonably construed as favoring the wife over the husband in the matter of the benefit which inures from such policies. If a married woman's life is insured and the policies are payable to her estate may she by will bequeath the proceeds. *Page 967 to whomsoever she desires for any use? Sec. 5458 Comp. Gen. Laws 1927.
If she makes such will may she exclude husband and children from participation in the benefits of the policies? Does the statute operate in one way when it is the wife who makes the will and in another when the husband makes it?
The statute provides that the proceeds inure to "children and husband or wife of such person in equal portions." If the husband should be the one upon whose life the policies are issued and he should leave surviving him a wife and ten children, if he made no will the wife's portion would be one-eleventh in the insurance proceeds. Does the widow's interest increase to a third upon the making of a will in which he attempts to bequeath the proceeds to a trustee for the benefit of his children?
May the wife claim dower in property that never becomes part of the husband's estate? Does the widow's dissent from the provisions of the will annul the bequest of the proceeds of the policies?
If the majority and concurring opinions are correct those questions must all be answered in the affirmative.
Under the statute of this State the proceeds of life insurance policies on the life of a married man or woman payable as the policies in this case were are never potential assets of the estate of either unless the wife or husband, as the case may be, dies leaving the insured without children. So long as either has wife or husband or children the proceeds of the policies under the statute must pass to the surviving wife or husband and children of the insured in equal portions, provided the insured does not bequeath such proceeds to others. It is inevitable therefore that the wife never has a "dower" or "inchoate interest of dower" in the proceeds of such policies. She has under the statute an equal portion with the children in such *Page 968 proceeds which may be the entire interest or a very small portion of the entire proceeds. A dower interest becomes vested on the death of the husband but if there was no right of dower in the insurance proceeds when did the dower interest come into potential existence and when did it become vested? Did it become vested when the husband died? Obviously not, because he may have made no will. Did it become vested when he made a will? No, because he may have been unmarried then and even though he subsequently married the will may not be probated? It follows, therefore from the majority opinion that this creation of legal fiction called "dower rights in insurance proceeds" comes into existence and becomes vested in the wife not in the husband's estate on his death but in property that never becomes part of his estate and then only upon the probate of his will, the terms of which may not please her. Another peculiar feature of this newly made "rights of married women" is that she may on the death of her husband, who attempts to bequeath the proceeds of his life insurance policies to his children or to a trustee for their benefit, change at her pleasure her status from beneficiary under the policies if there were no will to a one-third interest in the proceeds by the simple process of calling it her dower.
I regret that I cannot agree with my fellow members of the Court in the conclusion reached by them in this case and I prepare this too lengthy dissenting opinion with many misgivings as to its propriety and the reasoning in which it is cast but in full confidence as to its merit. I am convinced that the beneficent purposes of a wise statute fail by the construction adopted and are diverted by the argument in the majority opinion.
BUFORD, J., concurs. *Page 969
ON PETITION FOR REHEARING Opinion filed July 18, 1929.