MARIE B. MOOREFIELD, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF HELEN DUNK, DECEASED, APPELLANT,
v.
CHARLES M. BYRNE, JR., ELLEN A. MCMAHON, BETTY BYRNE BUCHMAN, PATRICIA BYRNE DOUGHTY AND NANCY BYRNE LANEY, APPEL-LEES

Fla. 3d DCA | 1962-05-15
No. 61-383
Before HORTON, CARROLL and HENDRY, JJ.
140 So. 2d 876 Florida District Court of Appeal, Third District (1962) Positive Treatment
Cited by 7 cases

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Holding

The court held that a conveyance of homestead property by a husband without his wife's joinder is void, and the homestead descends according to statutory provisions, not by will.

Facts & Procedural History

A husband, after establishing a homestead, attempted to convey it to himself and his wife as tenants by the entireties without his wife's joinder. He …

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Topics
Alienation Of Homestead Vested Remainder Tenancy By The Entirety Life Estate

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Opinion of the Court
CARROLL, Judge.

CARROLL, Judge.

This is an appeal by defendant from an adverse judgment in ejectment. The property involved had been the homestead of Charles M. Byrne. The five plaintiffs were his children by a first marriage.

Byrne was divorced from the mother of the plaintiffs. Thereafter he moved to Florida and acquired the property which is the subject of this suit. He married again and proceeded to live on the property with his new wife and her daughter by a prior marriage, Marie B. Moorefield. After establishing the homestead, Byrne attempted to make a transfer of the property to himself and his wife as tenants by the entireties by a conveyance in which his wife did not join. The defendant-appellant Marie B. Moorefield, in her pleadings and brief, does not dispute the proposition that the property became a homestead when the father of the plaintiffs lived thereon as the head of a family with his wife Helen and the defendant. However, she contends the subsequent conveyance created an estate by the entireties under which her mother became the owner by right of survivorship.

The conveyance of the homestead by the husband without joinder by the wife was void under Art. X, §§ 1 and 4, Fla. *877Const., F.S.A.1 See Estep v. Herring, 154 Fla. 653, 18 So.2d 683; Jahn v. Purvis, 145 Fla. 354, 199 So. 340; Byrd v. Byrd, 73 Fla. 322, 74 So. 313; Thomas v. Craft, 55 Fla. 842, 46 So. 594. Section 689.11, Fla.Stat., F.S.A., permitting creation of estates by the entireties by deed from a husband to his wife, is inapplicable to homestead property, which under organic law may be alienated only by deed or mortgage duly executed by husband and wife when that relation exists. Here, while the homestead continued, the husband died. His will devising all property to his wife was ineffective as to the homestead, which descended, as provided by statute, to the widow for life with vested remainder to the plaintiffs. Sections 731.-05(1), 731.27, Fla.Stat., F.S.A.2 The appellant’s argument, that the plaintiffs could not inherit under the homestead statute of descent because their parents were divorced and they were nonresidents of Florida and had not resided on the property, is rejected as without merit. Plaintiffs came within the statute as “lineal descendants in being at the time of the death of the decedent.” Thereafter, the wife died, leaving a will under which her daughter Marie, the defendant here, was sole beneficiary. Upon the death of the widow, the said children owned the homestead property and were entitled to possession. The trial court was eminently correct in so construing and applying the law, and the judgment appealed from should be and hereby is

Affirmed.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Chapman v. Chapman, 526 So. 2d 131 (Fla. 3d DCA 1988)
    …982); Gotshall v. Taylor, 196 So. 2d 479 (Fla. 4th DCA) (where the requirements of the constitution are not complied with in alienating homestead property, the attempt is void ab initio), cert. denied, 201 So. 2d 558 (Fla.1967); Moorefield v. Byrne, 140 So. 2d 876 (Fla. 3d DCA) (attempt by husband to transfer homestead property to himself and second wife as tenants by the entireties was void where second wife did not join in [*134] conveyance), cert. denied, 147 So. 2d 530 (Fla.1962). Jameson v. Jameson, 387…
  • Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978)
    …Hyman Robbins attempted to create an estate by the entirety with May Robbins, both spouses were expressly required to join in the execution of a deed conveying homestead property. Thomas v. Craft, 55 Fla. 842, 46 So. 594 (1908); Moorefield v. Byrne, 140 So. 2d 876 (Fla.3d DCA 1962); 16 Fla.Jur., Homestead, Section 57 (1957). Additionally, the homestead provision of the 1885 constitution was construed to implicitly require that any alienation of homestead property be accompanied by valuable consideration. See,…
  • DeSTEFAN v. Thropp, 291 So. 2d 18 (Fla. 3d DCA 1974)
    …PER CURIAM. Affirmed on authority of Estep v. Herring, 154 Fla. 653, 18 So. 2d 683; Moorefield v. Byrne, Fla.App.1962, 140 So. 2d 876.…

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