45 Fla. 203 | Fla. | 1903
Lead Opinion
The appellants, as complainants below, filed their bill in equity in the Circuit Court of Escambia county against the appellees as defendants below, alleging in substance as follows: That the complainants and defendants are the heirs at law of Mary A. Caro, deceased, who died on
The Circuit Judge upon the bill, answer and evidence rendered a final decree adjudging that the real estate in question was lawfully devised to the said Florida N. Car.o and Georgia A. Caro, and that the complainants were not entitled to partition thereof, and dismissing the bill at the cost of the complainants. From this decree the complainants have appealed to this court, assigning the said decree as error.
The Circuit Judge erred in making the decree appealed from. The facts in the case are substantially on all fours with the facts in the case of DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442. in which it was held that the widowed mother in that ease was the head of a family at the time of her death, within the meaning of section 1 of Article X of. the constitution, and, having children in being, that she could not devise her homestead by will. That ca.se is decisive of tins one, and we consequently hold that under the facts in this case Mary A. Caro was the head of a family, within the meaning of said section 1 of •Article X of the Constitution of Florida of 1885, and that having children in ease at the time of her death, her will, in so far as it undertook to devise, her homestead to two of her cb.ildren to the exclusion of the others, was inoperative and void, and that the complainants were entitled to partition and division among her heirs at law of the real estate constituting .such homestead.
The decree appealed from is reversed with directions for suds farther proceedings in the cause as may be conformable to equity practice and not inconsistent with this opinion. The appellees to be taxed with the costs of this appeal.
Concurrence Opinion
Concurring.
The conclusion reached in DeCottes v. Clarkson, 43 Fla. 1, 29 South. Rep. 442, to the effect that an unmarried holder with children cannot dispose of his or her homestead by will, is thought by counsel for appellees in this case to be erroneous. In that case the question is not discussed further than to say that it is settled law in this State; not denied by counsel in that case. In the present case the opinion prepared by the Chief-Justice merely follows the former decision, without discussing the question at all, and in view of the very able brief of the counsel for appellees, based largely upon the written opinion of the Circuit Judge, I deem it proper to discuss the question more at length. In Walker v. Redding, 40 Fla. 124, 23 South. Rep. 565, it is broadly stated that “under Article X constitution of 1885, only those who are without children can dispose of their homesteads by will.” Under the constitution of 1868, it veas uniformly held that the homestead could not be disposed of by will (Wilson v. Fridenburg, 19 Fla. 461; 21 Fla. 386, and Brokaw v. McDougall, 20 Fla. 212), but in aíf the cases decided under either constitution, except DeCottes v. Clarkson, the testator left a wife and children, and this fact, it is thought,, makes those decisions inapplicable to the present question, leaving it to rest upon DeCottes v. Clarkson alone. Bo much of tlie provisions of Art. X, constitution of 1885, as bear upon the question to be decided, reads as follows: “Sec. 1. A homestead to the extent of 160 acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with $1,000 worth of personal prop
Sec. 2. The exemptions provided for in section 1 shall inure to the widow and heirs of the party, entitled to such exemption.
Sec. 4. Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself and by husband and wife, if such relation exists; nor, if the holder be without children, to prevent him or her from disposing of his or her homestead by will, in a manner prescribed by law.”
The contention for appellees is, that the restrictive provisions of Art. X of the constitution apply only to cases where the owner of the homestead is a married person. The argument to sustain this contention proceeds upon the theory that the constitution does not cast upon the widow and heir an estate in the homestead, nor operate as a statute of descents as to such property; that the right to alienate the homestead is not derived from the constitution, but that the latter merely places restrictions upon the antecedent power of alienation incident to the ownership of the property; that therefore the 2nd section lias ho bearing and is not to be considered in determinin<>; whether the owner can dispose of the homestead by will; that the only restraint upon alienation is that embraced in the language “the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists” found in the first section; that tins restriction applies only to married owners, and that it applies to wills as well as to present conveyances; that the
The constitution of 1885 is a revision of that óf 1868. The homestead article of the. former, is a revision of a similar article in the latter, and we must look to the former provisions and their construction in determining the meaning of the revision. The first section of the homestead article of the constitution of 1868, so far as applicable to the question now under discussion, Avas the same
It_ may be contended, however, that the remarks of Chief-Justice RANDALL, in Brokaw v. McDougall, 20 Fla. 212, text 225, to the effect that in Wilson v. Fridenburg, it was “held that the language of the Article, the homestead ‘shall not be alienable without the joint consent of husband and wife, when that relation exists,’ operated to prevent-any alienation or other testamentary disposition of the homestead by such head of a family who may die leaving a widow and children,” shows that the real ground of the decision in the case referred to was not as I háve interpreted it, but was based upon the alienation clause in the first section. In that case the remark was incidentally made concerning a matter not involved in the case then before the court, as neither party was contending that the will of the homestead in that case was valid, nor that the decision in the former case upon that subject was wrong. The court was asked to reconsider the former decision as to the statuts of the widow, but not as to the power to devise the homestead. In the sub
The first section of the old as Avell as the new constitution deals with the homestead and alienations thereof during the lifetime of the owner, but its transmissipn on his death is specially dealt with in subsequent sections. By the old constitution the exemption “accrues to the heirs” upon the death of the party, and by the new it “inures to the widow and heirs” upon his death. Neither provision regulates the descent of the property, but it does regulate and provide for the continuance of the exemption after the owner’s death. The provisions are based upon the theory that there are and will be statutes regulating the descent of property, designating the persons who shall he heirs and the interests they shall inherit, and regulating the interest which the widow shall take in a decedent’s property, whether dower or otherwise. It casts the exemption upon the widow and upon whomsoever the legislature shall have designated as heirs of the party, and thus, by implication, excludes the idea that the party may by will designate other persons to succeed to the property upon his death. As the constitution casts the exemption upon the widow and heirs, it is absolutely essential, in order that they may enjoy this constitutional right, that the title of the property shall • descend to or vest in them. As was said by Judge WESTCOTT in the Wilson-Fridenburg case, if we admit the power to devise the homestead it will be subject to debts in the hands of the devisees, even though the devisees may be the wido,w and those who would have taken by inheritance in the ab
This brings me to a consideration of section 4 of the new constitution which is a new provision not found in the old. It is in the nature of an interpretation clause, but if contains limitations upon the power of alienation by unmarried owners, and certain limitations upon the power of alienation by married owners mentioned in the first section, and an interpretation of the restrictions upon the power of testamentary disposition found in section 2. This section is framed upon the theory that the^e is somewhere in the Article language that is susceptible of being construed as prohibiting married as well as unmarried owners from making deeds, mortgages or wills of their homesteads in cases not intended, or of enabling them to make them in cases intended- to be prohibited. And just here I will say that the language of this section excludes the idea that it was intended merely to enlarge the power of alienation restricted by the first section so as to permit a married owner to alienate by will the homestead without the joint consent of husband or wife, because it deals -with the subject of alienations and wills by-married and unmarried owners in separate clauses, showing clearly that the framers did not have in mind simply
Títere is nothing in these conclusions in conflict with the decision in Godwin v. King, 31 Fla. 525, 13 South. Rep. 108. In that case it was held that the constitution does not undertake to regulate the descent of property, but simply exempts a certain portion of the estate of the head of the family from forced sale under process of any court for the debts of such head of a family, and to continue this exemption after his death to his widow and heirs; that the respective shares of the widow and heirs are not determined by the homestead article, but are ascertained under the law regulating dower and the descent of property in force in this State. This conclusion does not conflict with the views herein expressed.
The only other case I deem it necessary to refer to is Hinson v. Booth, 39 Fla. 333, 22 South. Rep. 687. It was there held that there were no restrictions in the constitution against the power of the holder of exempt personal property to dispose of it by will, but in reaching this conclusion it was expressly admitted that there was in the