Caro v. Caro

• Decision Date: 31 March 1903
• Citation: 34 So. 309,45 Fla. 203
• Parties: CARO et al. v. CARO et al.
• Court: Florida Supreme Court

34 So. 309

45 Fla. 203

CARO et al. v. CARO et al.

Florida Supreme Court

March 31, 1903

In Banc. Appeal from Circuit Court, Escambia County; Evelyn C Maxwell, Judge.

Bill by George W. Caro and others against Florida N. Caro and others. Decree for defendants, and complainants appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. Where a widow owns in fee a lot less than a half acre in size in an incorporated city, and resides thereon, making it her home and place of actual residence for many years prior to her death, and dies there, and such widow has several children, all of them over 21 years of age, but none of them reside with her except two unmarried daughters, who resided with their mother continuously up to the time of her death making her home their home, and they having no other home or dwelling place but their mother's, both of such daughters being of age, and both of them, by sewing, earning enough to supply all of their wants except their food, which they ate at their mother's table, both of them continuously remaining under the protection of their mother's rooftree and family fireside, one of them for several years prior to her mother's death acting as her nurse--the mother being in feeble health--and attending to her personal wants generally, while the other daughter attended exclusively to the duties of housekeeper and to her mother's outside business affairs, under these circumstances, held: (1) That such widow was the head of a family; and (2) that such lot upon which she resided and died was her homestead; and (3) that, under the Constitution of Florida of 1885, she was prohibited, where she left children surviving her, from devising such homestead by will; and (4) that a will by which she undertook to devise such homestead to two of her surviving children to the exclusion of her other children was void as to such homestead.

COUNSEL

Liddon & Eagan, for appellants.

John C Avery, for appellees.

OPINION

TAYLOR, C.J.

The appellants, as complainants below, filed their bill in equity in the circuit court of Escambia county against the appellees, as defendants below, alleging, in substance, as follows: That the complainants and defendants are the heirs at law of Mary A. Caro, deceased, who died on the 13th of February, 1898, in Pensacola, Fla.; that said Mary A. Caro was at the time of her death the head of a family, residing in the state of Florida, and was seised and possessed and residing upon the following described real estate situated in the city of Pensacola, Escambia county, Fla., to wit, lots 12 and 13 and north half of lot 14 in block 1 of the Belmont tract in said city, containing less than one-half acre, and being her homestead; that the complainants and defendants are all brothers and sisters, and children of the said Mary A. Caro and her husband, Philip A. Caro, who died on the 18th of November, 1875, except the defendants Annie L. Quina, Philip G. Caro, and John G. Caro, who are grandchildren of said Mary A. Caro, being children of her son Philip Caro, deceased, and the defendant Gregory Quina, who is the husband of Annie L. Quina; that they are all over the age of 21 years, and that complainants and defendants are coparceners in the above-described real estate, each of them being entitled to one-tenth part thereof, except Annie L. Quina, Philip G. Caro, and John G. Caro, who are each entitled to one-third of one-tenth thereof; that no other person or persons are entitled to any part thereof or claim therein; that complainants are desirous that a partition of said premises shall be made among the said several parties seised of and entitled thereto. The bill waives answer under oath, and prays for partition of the said premises, for general relief, and for subpoena. The defendants answered the bill admitting the relationship between the parties as alleged, but deny that the complainants and defendants are coparceners in the real estate described in the bill, or that the complainants or defendants, or either of them, are entitled to any porportionate share or quantity in the same, or are entitled to a partition thereof, because, as defendants aver, the said Mary A. Caro was the owner in fee simple of the property described in the bill, and prior to her death she made a will by which she devised the said property to two of the defendants, viz., Florida N. Caro and Georgia A. Caro, which said will remained unrevoked at the time of her death, and has been duly admitted to probate since her death in the county judge's court of Escambia county. By the written stipulations and agreements of the parties and the evidence taken before a master the following facts were established: Mary A. Caro, widow of Philip A. Caro, shortly after his decease, built a dwelling house on the real estate in dispute, and removed thereto with her children who were not then married. She owned the land in fee, and made it her home and place of actual residence for many years prior to her death, and died there. As her children married, they established homes for themselves elsewhere. The defendants Georgia A. Caro and Florida N. Caro were her daughters, and continuously resided with her, making her home their home, they having no other home or dwelling place, and resided with her at the time of her death. Their mother paid for and supplied the food for the household. Georgia acted as nurse for her mother, who was in feeble health for several years before her death, and attended to her personal wants generally. Florida attended exclusively to the duties of keeping house, and to her mother's outside business affairs. They were both continuously members of their mother's family and household. Both of them were of age, and had been for several years prior to their mother's death, and both of them, by sewing, earned enough money to supply all of their wants except their food, which they ate at their mother's table. Both of them were continuously under the protection of their mother's rooftree and family fireside.

The circuit judge, upon the bill, answer, and evidence, rendered a final decree adjudging that the real estate in question was lawfully devised to the said Florida N. Caro and Georgia A. Caro, and that the complainants were not entitled to partition thereof, and dismissing the bill at the cost of complainants. From this decree the complainants have appealed to this court, assigning the said decree as error.

The circuit judge erred in making the decree appealed from. The facts in the case are substantially on all fours with the facts in the case of De Cottes v. Clarkson, 43 Fla. ----, 29 So. 442, in which it was held that the widowed mother in that case was the head of a family at the time of her death, within the meaning of section 1 of article 10 of the Constitution, and, having children in being, that she could not devise her homestead by will. That case is decisive of this one, and we consequently hold that under the facts in this case Mary A. Caro was the head of a family, within the meaning of said section 1 of article 10 of the Constitution of Florida of 1885, and that, having children in esse at the time of her death, her will, in so far as it undertook to devise her homestead to two of her children to the exclusion of the others, was inoperative and void, and that the complainants were entitled to partition and division among her heirs at law of the real estate constituting such homestead.

The decree appealed from is reversed, with directions for such further proceedings in the cause as may be conformable to equity practice and not inconsistent with this opinion; the appellees to be taxed with the costs of this appeal.

MAXWELL, J., took no part in the decision of this cause.

CONCURRING

CARTER J. (concurring).

The conclusion reached in De Cottes v. Clarkson, 43 Fla.--, 29 So. 442, to the effect that an unmarried holder with children cannot dispose of his or her homestead by will, is thought by counsel for appellees in this case to be erroneous. In that case the question is not discussed further than to say that it is settled law in this state, not denied by counsel in that case. In the present case the opinion prepared by the Chief Justice merely follows the former decision, without discussing the question at all, and, in view of the very able brief of the counsel for appellees, based largely upon the written opinion of the circuit judge, I deem it proper to discuss the question more at length. In Walker v. Redding, 40 Fla. 124, 23 So. 565, it is broadly stated that 'under article 10, Const. 1885, only those who are without children can dispose of their homesteads by will.' Under the Constitution of 1868 it was uniformly held that the homestead could not be disposed of by will (Wilson v. Fridenburg, 19 Fla. 461; Wilson v. Fridenberg, 21 Fla. 386, and Brokaw v. McDougall, 20 Fla. 212), but in all the cases decided under either Constitution, except De Cottes v. Clarkson, the testator left a wife and children, and this fact, it is thought, makes those decisions inapplicable to the present question, leaving it to rest upon De Cottes v. Clarkson alone. So much of the provisions of article 10, Const. 1885, as bear upon the question to be decided, reads as follows:

'Section 1. A homestead to the extent of 160 acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this state, together with $1,000 worth of personal property, and the improvements on the real estate shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.

'Sec. 2. The exemptions provided for in section 1 shall inure to the widow and

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