DeCottes v. Clarkson , 43 Fla. 1 ( 1901 )

Mabry, J.

(after statiúg the facts.)

Counsel for appellants say in their brief filed in this •case that the “bill of complaint through inadvertance prayed for a partition, of the whole lot, but the western portion is the only part of the lot sought to be subjected to the partition, and it was so> understood at the final hearing in the court below.” In view of this statement our decision will be confined to> the western, eighty-two and one-half feet of lot five (5) in block thirty-three (33)- old numbering, of the city of Jacksonville or lot five (5) in block eighty-one (81), new numbering.

Counsel for appellees questions here the jurisdiction of the lower court, and contends that such an adverse possession of title as is disclosed by the joint answer can not be adjudicated by a court of chancery in a partition suit. No- objection was made to* the jurisdiction of the court by demurrer to the bill or reservation in the answer of any such objection, and the case was brought on for final hearing before the chancellor upon bill, answers and testimony submitted. On the disclosures of this record, in the absence of any such objection, in the trial ■court, we are not properly called on to go into a consideration of the jurisdiction of the court to entertain the suit. Rivas v. Summers, 33 Fla. 539, 15 South, Rep. 319.

There is also some insistence on the part of counsel for appellees that should the court hold the designated-western portion of lot five to> be the homestead of Mrs. Mary L. Moody, we should further consider the merits of the cross-bill filed in behalf of Hattie P. Moody and Mrs. Clarkson. The object of the cross-bill was to obtain affirmative relief in a certain contingency, and it was based upon the theory suggested in the last clause of the joint answer to the original bill. We have not stated the substance of the cross-bill because the demurrer to it was not passed upon by the chancellor, and the appeal is from the decree on the original bill holding that the complainants had no right, title or interest in lot five that entitled them to- partition.

The facts set up in the joint answer are substantially established by the testimony. Paran Moody died in 1887, leaving a wife, Mary L. Moody, and four daughters. Prior to that time Mrs. Moody had acquired the title to the lot in question and was then living with her husband and two daughters, Hattie and Rosa, in a dwelling-house situated on the western portion of the lot. The other two children, Mary A. and Estelle, had married and were living away from the home. All of the children were twenty-one years of age when- their father died. Mrs. Moody continued- to reside after the death of her husband in the same house with the two daughters, Hattie and Rosa, until she died, but Rosa was married to Walter B. Clark-son in 1891, and thereafter they paid board to Mrs. Moody and she did not support them-. Hattie P. Moody was vigorous and healthy and capable of attending to household affairs, besides assisting her mother in transacting business connected with the latter’s estate that amounted in value to some sixty thousand dollars. It is shown that Hattie P. Moody did materially assist her mother in her household and business affairs and nursed and cared for her in her last illness. All of this was done,, it appears, as was natural, out of a sense of filial duty and affection, and there was no agreement about it or stipulated price to be paid for it. Miss Moody continuously lived with her mother and was provided for and supported by her up to the time of her death.

Our constitution provides, Article X, section 1, that “a homestead to the extent of one hundred and sixty 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 * * * shall be exempt from forced sale under process of any court,” and we are of opinion that under the facts of this case Mrs. Mary L. Moody was the head of a family, within the meaning' of the constitution., at the time of her death. If it be conceded that Mrs. Clarkson after her marriage was not a member of Mrs. Moody’s family, such can not be said of Hattie P. Moody. The court has carefully read the numerous cases oitefcl) in briefs -of counsel, and examined others accessible to us, but it is not deemed necessary that the court should enter upon a discussion of the cases on the subject. We must obey the constitution when in possession of its meaning’, and confining ourselves to the facts of the present case we have no doubt of the correctness of the conclusion, reached.

The provision “dependent for support” ’incorporated into' the statute construed in the case of Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876, is not employed in our constitution in connection 'with the term “head of p family,” and we do not feel authorized to establish an invariable test based solely on dependence, and especially 'legal dependance. The trae test of who> is the head of a family, within the contemplation of our homestead provision, must be found in the,facts and circumstances of the case. The conclusion reached determines this case. Mrs. Mary L. Moody permanently residing in this State at the time of her death on the west eighty-two and one-half Ifeet of lot five, block thirty-three, in the city of Jacksonville, and she died leaving children. It is the settled law of this State, and not denied in this case, that a homestead is not the subject of testamentary disposition, unless the holder be without children; and such property upon the death of the homesteader descends to his or her heirs at law. Counsel insist that the word “children” in the fourth section of the homestead article permitting a devise of the homestead when the holder be “without children” means minor children, but it clearly has reference to relationship and we find nothing in the context to authorize such a restrictive meaning. The court erroneously decreed that the complainants in the original suit, Mary A. DeCottes and Estelle Hopkins, had no right, title or interest in the part of the lot in question, and the decree must, therefore, be reversed. Ordered accordingly.