Opinion
August 21, 1951. Rehearing Denied October 5, 1951.
Appeal from the Circuit Court for Hillsborough County, Harry N. Sandler, J.
John M. Allison and Thomas Alexander, of Macfarlane, Ferguson, Allison Kelly, Tampa, for Alice V. Fortlage.
Charles F. Blake, Tampa, for the Estate of Thomas E. Malone, deceased, appellants.
Julian H. Lifsey, Jr., Tampa, for Carrie Elizabeth Malone Wishart, appellee.
Thomas E. Malone died on January 21, 1946, leaving a last will and testament dated October 27, 1944, in which said decedent bequeathed property to three named beneficiaries and left the remainder of his estate to his widow, Carrie Malone, now Carrie Malone Wishart. Mrs. Wishart, within the time prescribed by law, filed her election to take dower and her petition for the assignment of same, whereupon the County Judge appointed commissioners to assign dower. Their report was duly filed and approved by the County Judge, and an order for the allotment of dower in accordance therewith was entered by him. On appeal to the Circuit Court by Alice V. Fortlage, one of the beneficiaries under the will, the order of the County Judge was affirmed. Mrs. Fortlage has perfected this appeal from the order of affirmance.
The only question here is whether it was error to allot to Mrs. Wishart one-third in kind of 100 shares of stock of the J.S. McCormick Company which had been bequeathed to Mrs. Fortlage.
Mr. Malone had owned at the time of his death 300 shares of the McCormick Company stock, subject to an agreement between him and the company whereby the company had the option to purchase such stock for the same amount as any bona fide offer which Mr. Malone should receive for same; and, upon his death still owning such stock, the company had the option to purchase 200 shares at the value thereof as shown by the books of the company as of the date of Mr. Malone's death, plus $10 per share. It was also provided in such agreement that, if the remaining 100 shares were owned by Mr. Malone at his death, he should in his last will and testament bequeath to Alice V. Fortlage the income from same during her life; and, upon her death, the company had the option to purchase such 100 shares at the book value as of the date of Mr. Malone's death.
After the death of Mr. Malone and within the time prescribed by the agreement, the company exercised its option and purchased the 200 shares of stock at book value, plus $10, for the total sum of $38,536. In allotting dower to Mrs. Wishart, the commissioners allotted to her one-third of this amount, and also allotted to her one-third in kind of the remaining 100 shares which had been bequeathed to Mrs. Fortlage. There is no contention made on behalf of the widow that the agreement is not binding; and, in fact, in her capacity as one of the executrices of the will she participated in the sale to the company of the 200 shares, and she is claiming here only the right to receive the income from 33 1/3 shares during Mrs. Fortlage's life, such shares to be subject to the option agreement with the company upon her death, as above referred to. It is the contention of Mrs. Fortlage that, under such circumstances, the widow should have been allotted the cash equivalent of the 33 1/3 shares rather than an allotment in kind.
It appears that there are ample funds in the residuary estate — renounced by the widow and thus to be considered intestate assets — to pay in cash to the widow the book value of the 33 1/3 shares of stock as of the date of Mr. Malone's death, but it is clear that the stock is actually worth much more than this amount, both to Mrs. Fortlage and to Mrs. Wishart. There was no evidence before the lower courts as to the actual value of the stock, and the Circuit Court in its order on appeal stated that "While the option agreement fixed the price of the stock in the event of the exercise thereof by the McCormick Company, yet this does not necessarily determine the market value thereof, and since there is no binding agreement on the part of the company to purchase the stock at the uncertain time of the death of the said Alice Fortlage, any estimate of its value at this time would be speculative."
While in some cases the allocation in specie of dower in personalty would not be logical nor practicable — as, for example, where the testator has bequeathed items of jewelry or a painting to named beneficiaries — it is, nevertheless, the general rule that the widow's dower claim has priority over a specific bequest, Murphy v. Murphy, 125 Fla. 855, 170 So. 856; and we do not think the lower courts erred in holding, in effect, that any loss which might result from the present "speculative" assessment of the value of the stock should fall on Mrs. Fortlage rather than on Mrs. Wishart. The residuary estate, renounced by Mrs. Wishart, will of course be available — and will be first liable — to compensate Mrs. Fortlage for her loss due to the widow's election, 57 Am.Jur., Wills, Sec. 1552; 5 A.L.R. 1629; 99 A.L.R. 231; Merchants' Nat. Bank v. Hubbard, 222 Ala. 518, 133 So. 723, 74 A.L.R. 646, on the basis of the present market value of the stock.
The petition of Mrs. Wishart respecting her costs and attorney's fee on this appeal is denied, without prejudice to her right to apply to the County Judge. See Section 732.14, Florida Statutes 1949, F.S.A.; Watts v. Newport, 150 Fla. 288, 7 So.2d 104.
Judgment affirmed and appellee's petition denied.
SEBRING, C.J., and CHAPMAN and ADAMS, JJ., concur.