Menendez v. Rodriguez , 106 Fla. 214 ( 1932 )

The general common law of England is in force in this State except where it is inconsistent with the constitution and laws of the United States or of the State of Florida; and all the laws and ordinances in force in the Territory of Florida to July 22, 1822, are repealed. See Florida Territorial Acts of September 2d 1822, and November 6th, 1829; sec. 6, Art. 16, constitution of 1838; sec. 5, Art. 15, constitution of 1861; sec. 6, Art. 16, constitution of 1865; sees 2 and 3, page 21, Thompson's Digest; secs. 7 and 8, page 708; McClellan's Digest, Secs. 59 and 60; Rev. Stats. 1892, Secs. 59 and 60; Gen. Stats. 1906, secs. 87 (71), 88 (72) Comp. Gen. Laws 1927. By Act of Congress approved March 3, 1822, the first legislative council of the Territory of Florida was required to meet at Pensacola, Florida, on the second Monday in June, 1822, but it seems that such legislative council did not in fact convene till July 22, 1822, hence the date stated for the repeal of all laws and ordinances in force in the territory to July 22, 1822. See Act November 6, 1829, Sec. 88 (72) C. G. L.

"The laws and ordinances" that were repealed as above shown were the laws of Spain that were continued in force in the Floridas by the proclamation, and the ordinances promulgated in 1821, by Major General Andrew Jackson, Governor of the Provinces of the Floridas, pursuant to authority conferred by James Monroe, President of the United States, under an Act of Congress approved March 3, 1821, to carry into execution the Treaty with Spain ceding the Floridas to the United States. See pages 4829 et seq., Annotated Edition, page 75 et seq., Compact Edition, Compiled General Laws, 1927; Proclamation dated July 17, 1821; Ordinance dated July 21, 1821, pages XIV and XX, Statutes of Florida, 1823-25 et seq.

In view of the bove enactments, the civil law of Spain is not in force in this State, except as portions of such civil law may be incorporated in statutory enactments. See Sec. 5865 (3946) C. G. L., Supp. of 1932. As shown above, the common law of England is expressly made a part of the law of Florida; and by the rules of the common law, a conveyance of real estate in fee simple to husband and wife creates an estate by entireties in them, at least where a lawful contrary interest is not duly shown; and at the death of one spouse, the entire estate in the property vests in the survivor. These rules are not inconsistent with the laws of this State and such rules of the common law are the law of this State on that subject. The provision of Section 5482 (3617) Comp. Gen. Laws, 1927, that "The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this State," does not apply to estates by the entireties. See English v. English, 66 Fla. 427, 63 So. 2d 822; Ohio Butterine Co. et al. v. Hargrave et al., 79 Fla. 458,84 So. 2d 376; Bailey vs. Smith, 89 Fla. 303, 103 So. 2d 833; Ferris-Lee Co. v. Fulghum, 98 Fla. 171, 123 So. 2d 679.

At the death of one spouse the whole estate in property owned by husband and wife as tenants by entireties is by operation of law vested in the surviving spouse, and the decedent's heirs as such have no inheritable interest in the property, which, if not otherwise duly disposed of, will descend to the heirs of the survivor upon his or her death.

Section 1, Article X, constitution of 1885, provides that "a homestead to the extent" stated in the section, "owned by the head of a family residing in this State" * "shall be exempt from forced sale under process of any court," with stated exceptions not material here. The constitution limits the homestead land area that may be exempted, but it does not define or limit the estates in land to which homestead exemption may apply, therefore, in the absence of controlling provisions or principles of law to the contrary, the exemptions allowed by section 1, Article X, may attach to any estate in land owned by the head of a family residing in this State whether it is a freehold or less estate, if the land does not exceed the designated area and it is in fact the family home place. When the estate or interest of the owner in the homestead land terminates the homestead exemption of such owner therein necessarily ceases.

Under section 2, of Article X, "the exemptions provided for in section 1 shall inure to the widow and heirs of the party entitled to such exemption." This provision can be applicable only when the estate of the owner in the homestead land does not terminate before or at the death of such owner.

Where a family home place is owned by the husband and wife as tenants by entireties, under the common law in force in this State, upon the death of one spouse, the entire estate in the land so owned, is by operation of law vested in the survivor to the exclusion of the heirs of the deceased spouse. Where the husband is the head of the family entitled to a homestead exemption in land owned by the husband and wife as tenants by entireties, his exemption at his death terminates with his estate in the land, which land by operation of law immediately becomes the sole property of the surviving wife. As the husband's interest in an estate by entireties ceases at his death, it cannot pass to his heirs under the statute, and as they, as such heirs, have no estate or interest in the land, there is no exemption to inure to them under the constitution. If the widow acquires and retains homestead exemption rights in property after the death of the husband, such exemption if existing at her death would inure to her heirs. Sec. 2, Art. X, constitution.

BUFORD, C.J., AND ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.