Opinion
July 8, 1952. Rehearing Denied July 24, 1952.
Appeal from the Circuit Court for Pinellas County, Victor O. Wehle, J.
Austin L. Richardson and James P. Bennett, St. Petersburg, for appellant.
Howard E. Warns and W.G. Ramseur, St. Petersburg, for appellees.
Abraham F. and Ella L. Zeigler entered into an oral agreement whereby all real and personal property owned by them be held as an estate by the entireties and that they would execute mutual and reciprocal wills devising the bulk of the estate to appellant Rebecca H. Nock, a daughter. August 6, 1935, in compliance with said agreement they executed their wills to effectuate said agreement and thereafter all properties accumulated by them were held as an estate by the entireties until the death of Abraham F. Zeigler in July 1950, when his will was admitted to probate.
When Abraham Zeigler died Ella L. Zeigler took possession of the joint estate. September 18, 1950, she revoked the will of August 6, 1935 and made an entirely different disposition of the estate. She died February 6, 1951 and her will of September 18, 1950 was admitted to probate. This is a suit in equity instituted by Rebecca H. Nock in August 1951 against appellee as executrix of the estate of Ella L. Zeigler, praying that a trust be impressed on certain real and personal assets of said estate held by her. A motion to dismiss the amended bill of complaint was granted and defendant appealed.
The primary question presented turns on the validity of the oral agreement entered into between Abraham Zeigler and his wife to execute mutual and reciprocal wills.
This agreement was made in 1934 or 1935. What is known in this State as the Married Woman's Emancipation Act, Section 708.09, F.S.A. was not enacted till 1943. Prior to the passage of this act a married woman could not make a binding contract with her husband. Tavel v. Guerin, 119 Fla. 624, 160 So. 665. Appellant relies on Newman v. Equitable Life Assurance Society, 119 Fla. 641, 160 So. 745 to neutralize the last cited case and reverse the trial court, but we do not think her contention is well grounded. It is our view that the oral agreement was not binding on the wife and that the case is ruled by Tavel v. Guerin and that line of cases. When Mrs. Zeigler executed the agreement she was devoid of capacity to do so. It therefore had no binding effect on her. Page on Wills, Lifetime Edition, Vol. 4, page 855. In view of this holding other questions urged become unimportant and are not explored.
The decree appealed from is therefore affirmed.
Affirmed.
SEBRING, C.J., and THOMAS and HOBSON, JJ., concur.