Brady v. Brady

• Decision Date: 22 December 1950
• Citation: 55 So.2d 907
• Parties: BRADY et al. v. BRADY et al.
• Court: Florida Supreme Court

Page 907

55 So.2d 907

BRADY et al. v. BRADY et al.

Supreme Court of Florida, Division B.

Dec. 22, 1950.

On Rehearing Special Division A, Dec. 4, 1951.

Rehearing Denied Jan. 21, 1952.

John D. Shepard and Shepard & Dykes, all of Cocoa, for appellants.

Russell Snow and Lloyd Campbell, Cocoa, for appellees.

PER CURIAM.

Affirmed.

ADAMS, C. J., and CHAPMAN, SEBRING and HOBSON, JJ., concur.

On Rehearing

HOBSON, Justice.

We have reconsidered this case in light of the petition for rehearing which was filed by appellants and have concluded that we should cleave to our original judgment of affirmance.

The real question in this case is whether the family relationship of father and son, which had existed from the death of the wife and mother, continued to exist until the death of the father in the face of the intervening facts and circumstances disclosed by the record. The subject property patently constituted a homestead from the death of the mother until some time after the marriage of the son Robert Converse Brady. The mere fact that the son married did not operate to dissolve the family relationship of father and son theretofore existing. However, the evidence in this case established facts which distinguish it from the case of Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448. In the instant suit the testimony showed that Robert Converse Brady, who is an able-bodied man, supported and actually assumed the responsibilities as head of his own family consisting originally of himself and his wife and subsequently of himself, his wife was their two children. In the Hillsborough Investment Co. case the son was a disabled veteran and in many ways was dependent upon the ministrations and assistance of his mother who paid most of the household expenses.

In this suit it was made to appear that although Robert Converse Brady prior to the creation of their partnership worked for his father, he worked thereafter as a member or employee of the partnership as by the terms of each partnership agreement he was required to do. He used his own earnings to maintain his wife and children. He looked after his father's property, part of which was deeded to the son by the father at the time of the formation of the first partnership which was many years prior to the latter's death and, in fact, took over practically all of the duties, responsibilities and prerogatives of the head of a family. In a situation such as this wherein the son became the head of his own family we are not constrained to hold that he could at the same time continue to be a member of his father's family of which the father might be said to be the head. Although the following cases are distinguishable factually, they do recognize the impropriety of approving such inconsistency. Whidden v. Abbott, 124 Fla. 293, 168 So. 253; Dania Bank v. Wilson & Toomer Fertilizer Company, 127 Fla. 45, 172 So. 476; Shambow v. Shambow, 153 Fla. 760, 15 So.2d 836. See also Morgan v. Cunningham, 109 Wash. 105, 186 P. 309.

Appellants lay great stress upon the fact that the father continued to sit at the head of the dining table and to either say grace himself or request someone else to offer thanks. Our reaction to this circumstance is that the recognition by the son of this courtesy to his father was normal and praiseworthy, but it does not overcome the evidence which the Chancellor believed and whch showed a dissolution of the family relationship of father and son and the establishment of the son as the head of his own family. In the last few years of the father's life he did little more than sit at the head of the table, water the grass and occasionally ride with the son out to the grove properties which then were owned by the father and son as tenants in common.

We do not mean to hold that once a homestead is established it ceases to exist when, as in this case, one of the two members constituting the family, who is not the head of such family, marries and brings his wife into the home. The homestead character of the property ceased to exist in this case sometime after the...