IN RE ESTATE OF WILLIAM ROTHMAN, DECEASED. ROSE ROTHMAN, APPELLANT,
v.
HERMAN M. BERK AND RUTH R. COHEN, AS EXECUTORS OF THE ESTATE OF WILLIAM ROTHMAN, DECEASED, APPELLEES
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In this Florida probate case, a widow challenged an order requiring her to vacate a decedent's apartment and return collected rents, arguing she was entitled to a life estate in homestead property despite an ante-nuptial agreement limiting her rights. The appellate court reversed, holding that whether the property constituted homestead and whether the ante-nuptial agreement could waive homestead rights were questions of title requiring circuit court jurisdiction, not county judge jurisdiction.
The county judge lacked jurisdiction to rule on whether the ante-nuptial agreement waived the widow's homestead rights, as this is a question of title within the circuit court's exclusive jurisdiction. The county judge could determine whether the property constituted homestead, but if it did, only the circuit court could determine whether homestead rights had been validly waived by the ante-nuptial agreement.
“if a homestead was involved, then, under the law relating thereto, a widow would be entitled to a life estate in such homestead (§§ 731.05, 731.27, Fla. Stat., F.S.A.), and the county judge would not have jurisdiction to rule otherwise.”
Establishes that the county judge lacked jurisdiction to determine the effect of the ante-nuptial agreement on homestead rights; this is a title question for the circuit court.
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Join FLexlaw to unlock all legal intelligenceWilliam Rothman and Rose Rothman were married on January 20, 1954. Prior to his death on November 7, 1956, they resided in an apartment in a 12-unit a…
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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-, ceive 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 controlling such.”
The decedent was survived by appellant as his widow and by his four children 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 possession from the appellant of the apartment in which she was continuing to reside and to gain control of rents from apartments which they alleged she was collecting. A rule to show cause was issued. Appellant answered the rule, contending that the apartment house property was the homestead of the decedent, in which she, as the widow, was entitled to a life estate notwith*608standing the ante-nuptial agreement, which she contended did not apply to homestead property.
On hearing, the county judge made the rule absolute and entered the order which is appealed from. In that order, without ruling on the question of whether the apartment house or any part of it was homestead property (Cowdery v. Herring, 106 Fla. 567, 143 So. 433, 144 So. 348; McEwen v. Larson, 136 Fla. 1, 185 So. 866; Lockhart v. Sasser, 156 Fla. 339, 22 So.2d 763; Jacobs v. Berlin, 158 Fla. 259, 28 So.2d 539; and Brodgon v. McBride, Fla.1954, 75 So.2d 770), the county judge held, in effect, that even if the property were homestead the appellant would not be entitled to share therein as widow because the court construed the ante-nuptial contract to be broad enough to exclude any right she might have as a widow in homestead property.
If the property was not homestead property, there was no need for the county judge to construe and consider the effect •of the ante-nuptial contract, because the widow predicated her claim on the existence of homestead and did not claim an interest in the property otherwise.
But if a homestead was involved, then, under the law relating thereto, a widow would be entitled to a life estate in such homestead (§§ 731.05, 731.27, Fla. Stat., F.S.A.), and the county judge would not have jurisdiction to rule otherwise. That is, if by virtue of some deed or instrument, such as the ante-nuptial agreement involved here, it is claimed that the widow's right to a life estate in a homestead has been contracted 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 effect of the holdings in Mott v. First National Bank of St. Petersburg, 98 Fla. 444, 124 So. 36; and Spitzer v. Branning, 135 Fla. 49, 184 So. 770; and this court so held expressly in the case of In re Weiss’ Estate, Fla.App.1958, 102 So.2d 154. The county judge has jurisdiction to determine the existence vel non of the homestead. See In re Noble’s Estate, Fla.1954, 73 So.2d 873.
For the reasons stated,.the order appealed from is reversed, and the cause is remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
HORTON and PEARSON, JJ., concur.
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In re the Est. of Joseph Feldman v. Feldman, 109 So. 2d 407 (Fla. 2d DCA 1959)…770; In re Lawrence’s Estate, Fla.1950, 45 So. 2d 344; Zinnser v. Gregory, [*411] Fla.1955, 77 So. 2d 611; In re Weiss’ Estate, Fla.App.1958, 102 So. 2d 154; In re Coleman’s Estate, Fla.App.1958, 103 So. 2d 237; In re Rothman’s Estate, Fla.App.1958, 104 So. 2d 607. The strongest previous case tending to sustain the jurisdiction of the county judge in the case at hand would seem to be Wells v. Menn, supra, which also revolved about an agreement among the beneficiaries under a will. In that case it was held th…1 / 2
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Cohen v. Rothman, 138 So. 2d 328 (Fla. 1962)…. c, Florida Appellate Rules, 31 F.S.A. The opinion of the court below, containing full statement of facts, is reported in 127 So. 2d 143, Fla.App.1961. For disposition of related litigation see In Re Estate of William Rothman, dec’d., Fla.App.1958, 104 So 2d 607. . The agreement provided, inter alia: “ . . . this sum is given and accepted as full payment for any and all rights, which, as a widow, the party of the second part might otherwise have and be entitled to receive and that this instru [*329] ment…
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Johnson v. Johnson, 140 So. 2d 358 (Fla. 2d DCA 1962)…t when the defendant entered into the agreement, she intended to divest herself completely of all right to homestead. There is no Florida law directly in point on this question. The defendant cites the case of In re Rothman’s Estate, Fla.App. 1958, 104 So. 2d 607, as authority for the proposition that a widow cannot by ante-nuptial agreement waive the right to homestead. This case is not authority for the particular question now before us. Instead, the holding there was that the county judge was without juri…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Florence v. Cowdery, 106 Fla. 567 (Fla. 1932)
- Spitzer v. Briggs Branning, 135 Fla. 49 (Fla. 1938)
- Mott v. First Nat'l Bank of St. Petersburg, 98 Fla. 444 (Fla. 1929)
- In re Noble's Estate. Wakeman v. Noble, 73 So. 2d 873 (Fla. 1954)
- McEwen v. Larson, 136 Fla. 1 (Fla. 1939)
- Olie Lockhart v. Zera Sasser, 156 Fla. 339 (Fla. 1945)
- Brodgon v. McBRIDE, 75 So. 2d 770 (Fla. 1954)
- In re Est. of Helen L. Weiss v. Burton J. Wade, 102 So. 2d 154 (Fla. 3d DCA 1958)
- Jacobs v. Berlin, 158 Fla. 259 (Fla. 1946)