Kearnes v. Hill

Me. Justice Raney delivered the opinion of the court: Where there are children and the husband dies intestate, the widow, if she elects to take a child’s part, takes as widow, and not as an héir; and such is the case where she ■dissents from the will, and elects to take a child’s part, there being also children of the husband surviving him. If we are to understand from the language of this bill that she has elected to take a child’s part, and has also a present right to the possession and enjoyment of her share of the land as such, then Mrs. Kearnes has her remedy at law by ■ejectment to recover her undivided interest or child’s part in the property from Hill and Lassiter. Gale et ux., vs. Hines, 17 Fla., 773 ; Harrell vs. Harrell, 8 Fla., 52. If we assume that the agreement of itself created, and is relied apon by Mrs. Kearnes as having itself created an equitable right in her, as against the children, to a conveyance of an undivided one-fourth interest in the land from them, as heirs at law, (or as devisees, if the will covered the property,) holding the' legal title, there is still no allegation in the bill of notice upon the part of Hill and Lassiter of such equitable right as of the time of their purchase; nor is there any allegation of fraud on their part; and consequently they took the property discharged of her equita [189] ble claim. 1 Sugden on Vendors, 272, (top paging,) note q. It is not necessary for us to look beyond the bill and the demurrer to decide this case, and looking at it in any light we can see no ground for an injunction. The decree is affirmed.