27 Fla. 426 | Fla. | 1891
On the 2oth day of October, 1887, Eliza J. Todd filed a bill in chancery in the Duval Circuit Court
The proceedings in this suit resulted in a final decree for complainant, and a sale of the real estate therein mentioned under said decree by a master in chancery appointed for that purpose. The master reported that he had sold said real estate on the first Monday in April, 1888, in pursuance of said decree, and after making all the disbursements from the proceeds arising from said sale, as directed by said final decree, a surplus of $1,090.06 remained in his hands subject to the order of the court.
The appellant William E. Scull, by leave of the court, filed in said cause on the 5th day of March, 1888, his petition asking to be allowed to intervene, and that the court by decree direct that the sum of $1,000 be paid him out of the surplus arising from the sale of said real estate. Appellant avers in his petition that in October, 1868, Angelina Beatty, then Angelina Scull, was duly married to James Beatty in the State of Indianna, and at the time of the marriage said Angelina had. one child, appellant herein, then five years old, the fruit of a former marriage, and that said James Beatty at said time had three children by a former marriage, to-wit: Lotta Beatty, William Beatty and Mary Beatty, now Mary Me-
On motion of defendants said petition was dismissed, and from tiie decision of the court dismissing the same, said petitioner, William E. Scull, appeals to this court, and herein assigns the following errors :
1. In dismissing the petition ox intervention.
2. In holding that non-resident adult heirs who have
8. In holding that the homestead of the ancestor accrued to non-resident adult heirs.
4. In holding that non-resident heirs took the homestead relieved of otherwise valid claims against it.
5. In holding that heirs had not waived the privilege-, of homestead by the f®reclosure sale.
G. In holding that money, the surplus proceeds of the foreclosure sale, was a homestead accruing to non-resident heirs.
7. Tn holding that the non-resident heirs were entitled to the surplus proceeds of foreclosure sale.
8. In rendering judgment against appellant.
This contest is over the surplus proceeds arising-from the sale of real estate under foreclosure proceedings. The appellant claims as legatees under the will of Janies Beatty, deceased, and defendants, William Beatty and Mary McQuinn, claim as heirs of said decedent. The real estate sold under said foreclosure proceedings was twenty acres of land situated.in Duval county, Florida-, pm-chased by James Beatty, deceased, in 1872, and occupied by him and his family as ahorne up to the time of his death, which occurred in 1882. The said decedent, Beatty, and his wife executed a mortgage on said home place in 1879 for §400, which -was foreclosed after his death and that of his wife
In the case before us it is clear that the contest is over money arising from the sale of real estate which was the homestead taken and enjoyed by Janies Beatty in his lifetime. Miller vs. Finnegan et al., 26 Fla., 29; 7 Southern Reporter, 140. It is well to observe that this contention does not present a claim for the exemption of personal property of a homesteader, but the conbrovery is over the surplus of proceeds arising from the sale of a homestead after the death of the homesteader under proceedings to foreclose a mortgage executed by said decedent in his lifetime. It has been adjudicated in this State and may be regarded as settled that under the Constitution of 1868 the homestead is not subject to testamentary' disposition, and although a homesteader may leave a will, as to his homestead, he dies intestate. Wilson vs. Fridenberg, 19 Fla., 461; Wilson vs. Fridenberg, 21 Fla., 386.
Under the statute of descents in this State whenever any person, having title to real estate - of inheritance, shall die intestate as to such estate, it shall descend to his children or their descendants, if any there be. McClellan’s Digest, p. 468, sec. 1. We do not under
Our conclusion is, that the decision of the court below in dismissing appellant’s petition was correct.
Hie judgment is affirmed.