Brown v. Hutch, 3671

Decision Date25 September 1963
Docket NumberNo. 3671,3671
Citation156 So.2d 683
PartiesBessie BROWN, Appellant, v. Doris Brown HUTCH, Appellee.
CourtFlorida District Court of Appeals

P. B. Howell, Jr., Leesburg, for appellant.

Arthur E. Roberts, Groveland, for appellee.

KANNER, Acting Chief Judge.

A final decree confirming and ratifying a deed of conveyance to certain property is the target of this appeal. The deed was from one W. J. Brown, now deceased, to one of his daughters, defendant-appellee, Doris Brown Hutch, and the suit was brought by another daughter, Bessie Brown, plaintiff-appellant, who attempted to have the deed set aside. Grounds asserted were that the property was the homestead of Brown, a widower, and that there had not been an effective delivery of the deed.

Briefly, the record reveals that Brown in 1947 purchased approximately 20 acres of rural land in Lake County and in 1948 constructed a small concrete block home on about 6 acres of it. Although Brown was the father of eleven living children, including appellant and appellee, he was at the time alone, a widower whose offspring had dispersed and gone their separate ways. In 1949, appellee daughter, with her infant son, moved into the home with the father. Thereafter, in 1952 or 1953, she was married to James Hutch. Since then, except for brief departures, the two have continued to reside there, as has appellee's son. In May of 1960, the father left for Frostproof, where he spent the remainder of his life with another daughter. He died there in June, 1961, at the age of 90.

The deed to the house and the 6 acres upon which it stands was prepared at the father's behest on or about March 1, 1951, and was delivered by Brown to a friend and adviser, together with a letter under that date instructing the friend to deliver the deed to appellee upon Brown's death:

'I am handing you herewith deed of my home place to my daughter, Doris Hopman. You are to hold this deed & deliver it to my daughter upon my death. It is understood however, that no party (sic) is to invest in her during my lifetime and I am to have the use and enjoyment of the property so long as I live.'

In December of 1958, Brown had a new deed prepared by an attorney and transmitted it to the same person who had held the original one. Asking for the old deed, Brown handed the depositary the following letter:

'Since making the above mentioned deed, my daughter is divorced an remarried and is now married to James Hutch, so in order to have her name correctly written in the deed, I have rewritten the above deed and enclose the same for delivery to Mrs. Doris Hutch upon my death as above stated.'

Pursuant to Brown's instructions, the holder of the deed, upon the grantor's death, delivered it to appellee, who had it recorded in the public records of Lake County.

The chancellor found 'That the property involved in this cause was not homestead property on the date of W. J. BROWN'S death;' and 'That there was an effective delivery from W. J. BROWN to DORIS HUTCH of the deed to the property which is the subject of this suit.' Both aspects of the final decree are asserted on the appeal to be erroneous.

Generally, a family, for homestead purposes, includes at least two persons living together as one family under direction of one of them, who is recognized as the 'head of the family.' Hussa v. Hussa, Fla.,1953, 65 So.2d 759; 16 Fla.Jur., Homesteads, section 28, page 291. For determination of the existence of a family relationship, there are, in Florida, two basic recognized tests to be met, either singly or in combination: (1) a legal duty to maintain arising out of the family relationship; (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Crosby and Miller, Our Legal Chameleon, 2 Fla.L.Rev. 24; Beck v. Wylie, fla.1952, 60 So.2d 190; 16 Fla.Jur., Homestead, section 27, page 290.

The force of appellant's argument is directed to the proposition that there was communal living among the occupants of the house, with W. J. Brown being the person in authority, the one who was looked to as the head of the family, and the one who paid the normal household bills and expenses. The testimony as to this, however, is diametrically conflicting.

The witnesses who testified for the respective parties consisted of members of the family of the litigants, except for the depositary of the deed who was a lifelong friend of Brown, his business adviser, and executor of his estate. In substance, that portion of the testimony upon the subject of family relationship within the home which was given by appellant and one of her brothers on her behalf was that the father paid the bulk of the ordinary household expenses, together with costs for repairs and additions to the house, that he owned the furniture used in it, that he was recognized as the one in authority, that he was comparatively well-to-do, having left a cash estate of $35,000, that he had been seen upon occasions to write checks for living expense items. Appellant also presented testimony purporting to show that appellee was derelict in taking care of her father and in attending to housekeeping duties.

Appellee, on the other hand, along with a sister, a brother, and a sister-in-law, through the sum of their testimony depicted a situation in which appellee, while respecting her father's wishes, looked to her husband as head of their family. There was testimony that the father would give to appellee occasional small sums of money; that Hutch was the main support, that he and appellee paid the usual bills and household expenses, that both appellee and her husband were gainfully employed, since the wife worked during the fruit seasons, drawing unemployment compensation during off seasons, while Hutch had year-round work in citrus and melons; that they paid part of the expense of repairs to the house and addition of a bathroom; that Hutch installed a pump to supply water indoors; that appellee planted flowers outdoors; that the two painted the house; and that the household furnishings were largely appellee's. All testified that appellee attended to her father's physical care and needs. The sister-in-law stated that Brown confided to her in about 1952 or 1953 that he 'had made a deed out to Doris giving her the place * * * that she was taking care of him and that she ought to have the place;' and in the spring of 1960, she related, he again told her that he had taken care of Doris for the trouble of waiting on him for the years she had lived with him.

The father's friend and business adviser testified that at times when he visited Brown, he would observe appellee doing the household chores. Brown, he said, was never dependent on anyone. He also stated that the father never ran an account, but appellee and her husband 'would do some buying and charge it through our office' and that they paid the bills thus incurred as well as the cost of some of the materials for repair of the house. He had seen Hutch at the home in question and had known him for sometime, since Hutch was for several seasons in his employ.

Of the nine other surviving children of W. J. Brown, or those aside from appellee and appellant, none joined appellant in prosecution of the suit protesting their sister's right to the property and seeking to invalidate the deed made by their father to her; only three, aside from the parties to the suit, testified; and two of these were witnesses for appellee, in addition to the sister-in-law. Out of the totality of the testimony emerges the fact that it was applee who provided her father with the only regular day-to-day care and attention which he received during the more than ten years he lived in the house, since the others, living elsewhere, furnished only occasional courtesies and aid. Brown acknowledged in 1952 or 1953 and again in 1960 the services...

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