Rothman v. BerkRothman v. Berk
The appellant and decedent William Rothman were married January 20, 1954. Prior to his death on November 7, 1956, they .resided in one of the apartments of a 12-unit apartment house which was owned by him in Miami Beach.
By an ante-nuptial contract, appellant had agreed that if she should survive Roth-man and become his widow she would re-, ceivе and accept $5,000 “in place, instead and in lieu of all rights, which, as widow, the party of the second part might otherwise have either as dower in real estate of the party of the first part or as distributive share of the personal property of the party of the first part, or otherwise, as the case may be, under any statutes or law now or hereafter in force and effect contrоlling such.”
The decedent was survived by appellant as his widow and by his four сhildren by a prior marriage.
Following appointment of appellees as executors, they moved the county judge on December 11, 1956, for a rule to show cause by which they sought to obtain pоssession from the appellant of the apartment in which she wаs continuing to reside and to gain control of rents from apartmеnts which they alleged she was collecting. A rule to show cause wаs issued. Appellant answered the rule, contending that the apartment house property was the homestead of the decеdent, in which she, as the widow, was entitled to a life estate notwith
On hearing, the county judge made the rule absolute and entered the order which is appealеd from. In that order, without ruling on the question of whether the apartment hоuse or any part of it was homestead property (Cowdery v. Hеrring,
If the property was not homestead property, there was no need for the county judge to construe and consider the effect •of the antе-nuptial contract, because the widow predicated her claim on the existence of homestead and did not claim аn interest in the property otherwise.
But if a homestead was involvеd, then, under the law relating thereto, a widow would be entitled to a lifе estate in such homestead (§§ 731.05, 731.27, Fla. Stat., F.S.A.), and the county judge would not hаve jurisdiction to rule otherwise. That is, if by virtue of some deed or instrument, suсh as the ante-nuptial agreement involved here, it is claimed that the widow's right to a life estate in a homestead has been cоntracted away, the jurisdiction to determine that question relating to title is in the .circuit court and not in the county judge’s court. That is the effеct of the holdings in Mott v. First National Bank of St. Petersburg,
For the reasons stated,.thе order appealed from is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.