A. MARION MORGAN, BY HER HUSBAND AND NEXT FRIEND, H. E. MORGAN, APPELLANT,
v.
MIRA F. BAILEY, LARKIN T. TRULL AND HIS WIFE HANNAH J. TRULL, AND FANNIE E. TRULL, A SINGLE WOMAN, APPELLEES
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A Florida Supreme Court decision holding that a homestead property is not reduced in area merely because it is subsequently incorporated into a city or town, and that a testator cannot make testamentary disposition of homestead property when a widow or child survives. The court reversed a demurrer dismissing a partition bill filed by an adopted daughter claiming homestead rights.
The homestead is not reduced in area without the owner's consent by being incorporated into a city or town. A married man cannot make testamentary disposition of his homestead when a widow or child survives him, and any attempt to do so is ineffectual. The bill alleging these facts stated a valid claim and the demurrer was improperly sustained.
“A married man who leaves a widow or a child surviving him cannot make testamentary disposition of his homestead, and where he attempts to do so, with respect to such property the will is ineffectual.”
Establishes the core holding that homestead property cannot be disposed of by will when a widow or child survives
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Join FLexlaw to unlock all legal intelligenceLewis B. Bailey, deceased, owned an undivided one-half interest in land that served as his family homestead. He executed a will devising $500 to his a…
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West, C. J.-
This appeal is from an order sustaining a demurrer to a bill in chancery for partition of land. The bill in substance alleges that the complainant is the adopted daughter of Lewis B. Bailey, deceased; that he left surviving him at the time of his death his widow, Mira F. Bailey, and the complainant; that he left a will by which he attempted to dispose of all the property of which he died seized, by devising $500 to complainant and devising and bequeathing the residue of his property to his widow; that at the time of his death decedent owned an undivided one-half interest in the land sought to be partitioned; that the property described was the homestead of the decedent, and that as to such property, notwithstanding the will, he died intestate.
It is not necessary at this stage of the proceeding to refer to the alleged interest of other defendants in the property.
It is alleged “that the property above described was the homestead of the said Lewis B. Bailey and was not the subject of testamentary disposition and that the will above mentioned was and is totally void in so far as it appertains to the property above described, and that in spite of the said will, the said property descended to your oratrix, upon the death of the said Lewis B. Bailey, subject, however, to the dower interest of the said Mira F. Bailey, his widow, if she be equitably entitled to dower in the said property.
“Your oratrix further represents that although more than one year has passed since the death of the said Lewis B. Bailey, the probate of his last will and testament and the issuance of letters testamentary, letters testamentary having been issued out of and under seal of the County Judge’s Court of Putnam County, Florida, on the 8th day of February, A. D. 1922, to Mira F. Bailey, the said Mira F. Bailey has not dissented from the will or any of its provisions, but on the contrary has accepted all the beneficial interest accruing to lier by reason of said will in all the other property of the said testator. “Your oratrix further represents that the said Mira P. Bailey has not elected to take a child’s part in the estate of the said Lewis B. Bailey, deceased, although more than one year has passed since the death of the said Lewis B. Bailey and the issuance of letters testamentary upon his estate.
“Your oratrix further represents that the property herein described was occupied and was the home and the place of residence of the said Lewis B. Bailey and his family, of which family he was the head, from the time that the house was built on the said property, long before the incorporation of the Town of San Mateo, in which town the said property is now located, and that said home was built for him for the occupancy of himself and family by his mother, Ann S. Bailey, and was occupied and used by him as the residence of himself and family, and that the same was his homestead long before he actually acquired record title to same, and by reason, of the fact that the same was his homestead before the incorporation of the Town of San Mateo, that said incorporation did not reduce the said homestead, but that the entire tract above described remained and continued to be his homestead until the time of his death. ’ ’
The prayer is for a partition of the property and that complainant be allotted the undivided interest of decedent, subject to the dower interest of his widow.
The homestead is not reduced in area without consent of the owner by reason of its being subsequently included within the limits of an incorporated city or town. Sec. 5, Art. X, Const, of Pla. Nor is it necessary that the entire estate be vested in one occupying land as a homestead before it may be impressed as homestead in character. The homestead exemptions under the Constitution apply to the beneficial interest as owned by the head of the family. Hill v. First National Bank, 73 Fla. 1092, 75 South. Rep. 613; Brokaw v. Ogle, 170 Ill. 115, 48 N. E. Rep. 394; King v. Welborn, 83 Mich. 195, 47 N. W. Rep. 106, 9 L. R. A. 803; Clark v. Thias, 173 Mo. 628, 73 S. W. Rep. 616; Bailey v. D. R. Dunlap Merc. Co., 138 Ala. 415, 35 South. Rep. 451.
A married man who leaves a widow or a child surviving him cannot make testamentary disposition of his homestead, and where he attempts to do so, with respect to such property the will is ineffectual. Norton v. Baya, —Fla. —, 102 South. Rep. 361; Johns v. Bowden, 68 Fla. 32, 66 South. Rep. 155; Palmer v. Palmer, 47 Fla. 200, 35 South. Rep. 983.
Under the allegations of the bill proof that the interest of the decedent in the property described was the homestead of himself and family is admissible, and there was error in the order sustaining the demurrer. The order sustaining the demurrer will be reversed.
Reversed.
Whitfield, Terrell and Strum, J. J., concur.
On Rehearing.
Per Curiam.
The allegations as to the homestead character of the property are sufficient as a basis for proofs. If under the particular facts of the case it is inequitable for the complainant, an adopted child, to claim against the testator’s will and at the same time to demand or retain legacies under the will, such matters may be presented and adjudicated in further proceedings. See Palmer v. Palmer, 47 Fla. 200, text 205, 35 South. Rep. 983.
Rehearing denied.
West, C. J., and Whitfield, Terrell and Strum, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bessemer Props. v. Robert Howard Gamble et ux., 158 Fla. 38 (Fla. 1946)…ssential that he hold the legal title to the land. This court has also held that a one-half interest, the right of possession, or any beneficial interest in land gave the claimant a right to exempt it as his homestead. Morgan v. Bailey, 90 Fla. 47, 105 So. 143; Hill v. First National Bank, 73 Fla. 1092, 75 So. 614; Coleman v. Williams, 146 Fla. 45, 200 So. 207. It is only necessary that the homestead status attaches prior to the attachment of the creditors’ lien. This Court is committed to the doctrine t…
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Bess v. Anderson, 102 Fla. 1127 (Fla. 1931)…on v. Baya et al., 88 Fla. 1, 102 So. 361. As when the husband died, he had living children though they were married, the homestead could not be devised to his wife. Griffith v. Griffith, 59 Fla. 512, 52 So. 609; Morgan v. Bailey et al., 90 Fla. 47, 105 So. 143; Johns v. Bowden, 68 Fla. 32, 66 So. 155. Affirmed. Terrell and Davis, J.J., concur. Bíjeord, C.J., and Ellis and Brown, J.J., concur in the opinion and judgment.…
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S. Walls, Inc. v. Stilwell Corp. & Andrew O. Stilwell, 810 So. 2d 566 (Fla. 5th DCA 2002)…, the right of possession, or any beneficial interest in land gave the claimant a right to exempt it as his homestead” and “[i]t was not essential that he hold the legal title to the land.” Bessemer Props., 27 So. 2d at 833 (citing Morgan v. Bailey, 90 Fla. 47, 105 So. 143 (1925); Hill v. First Nat’l Bank, 73 Fla. 1092, 75 So. 614 (1917) (holding that a life estate interest is sufficient beneficial interest in property to qualify for homestead exemption)); see also Anemaet v. Martin-Senour Co., 114 So. 2d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johns v. Bowden, 68 Fla. 32 (Fla. 1914)
- Maude DeLong Norton v. Blanche Norton Baya, 88 Fla. 1 (Fla. 1924)
- Hill v. First Nat'l Bank of Marianna & H. A. Bowles as Sheriff of Jackson Cnty., 73 Fla. 1092 (Fla. 1917)
- Palmer v. Palmer, 47 Fla. 200 (Fla. 1904)