De Cottes v. Clarkson

• Decision Date: 30 January 1901
• Citation: 29 So. 442,43 Fla. 1
• Parties: DE COTTES et al. v. CLARKSON et al.
• Court: Florida Supreme Court

29 So. 442

43 Fla. 1

DE COTTES et al. v. CLARKSON et al.

Florida Supreme Court

January 30, 1901

Appeal from circuit court, Duval county; Rhydon M. Call, Judge.

Suit by George A. De Cottes and others against Walter B. Clarkson and others. Decree for defendants, and plaintiffs appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. Where no objection is made in any manner to the jurisdiction of a court of chancery in a partition suit, and the case is regularly brought to final hearing and decree on bill answer, and testimony, the appellate court will not consider objections as to jurisdiction raised for the first time on appeal, where the record fails to disclose an entire absence of jurisdiction over the subject-matter.

2. Who is the head of a family, within the meaning of section 1 art. 10, of the constitution, exempting homesteads from forced sale, must be ascertained from the facts of each case and there is no invariable test, based solely upon dependence, and especially legal dependence.

3. At the time of her husband's death, Mrs. M. was the owner of a lot of land in an incorporated city, containing less than one half acre, upon which there was a dwelling house, and in which she resided with her husband and two unmarried daughters; there being two other married daughters living away from the family residence. The husband died in 1887, and Mrs. M., the widow, and the two unmarried daughters continued to reside in the same house until the death of Mrs. M., in 1894. One of the daughters married in 1891, and thereafter she and her husband paid board, and were in no way supported by the mother. The other daughter was vigorous and healthy capable of attending to household affairs, and did assist in attending to them, besides assisting her mother in connection with the latter's estate, that amounted in value to some $60,000. All this was done out of a sense of filial duty and affection, and there was no agreement about it, or stipulated price to be paid, but this daughter was supported and provided for by her mother as long as she lived. Held, that Mrs. M. was the head of a family at the time of her death, within the meaning of section 1, art. 10, of the constitution.

4. The word 'children,' in the fourth section of the tenth article of the constitution, permitting a devise of the homestead when the holder be 'without children,' has reference to relationship, and there is nothing in the context to authorize a construction restricting it to minor children.

COUNSEL

H. Bisbee and C. D. Rinehart, for appellants.

R. H Liggett, for appellees. Appellants filed a bill in chancery against appellees and one Margaret C. Fairlie for a partition of lot 5, block 33, old numbering, of the city of Jacksonville, or lot 5, block 81, of the new numbering; said lot being situate at the southeast corner of the intersection of Laura and Monroe streets in said city.

The bill alleged that Mary L. Moody, deceased, during her lifetime and to the time of her death, was the head of a family, and resided upon the lot described as her homestead; that she died on the 19th day of January, 1894, leaving as her heirs complainants Mary A. De Cottes and Estelle Hopkins, and the defendants Hattie P. Moody and Rosa Clarkson, and that the title to the said lot descended under the laws of Florida to said heirs as tenants in common, and each was entitled to a one-fourth undivided interest in the same; that on or about the 23d of July, 1894, Estelle Hopkins and her husband, Edward H. Hopkins, mortgaged the one-fourth interest of Estelle in said lot to Margaret C. Fairlie for $2,000.

The defendants Hattie P. Moody and Rosa Clarkson, her husband, Walter B. Clarkson, joining therein, filed a joint answer, admitting that Mary L. Moody, deceased, during her lifetime was seised and possessed of the lot described in the bill, and that she resided in the house situated on the west 82 1/2 feet of said lot, but alleged that this part of the lot was completely cut off and separated from the east 22 1/2 feet, which was under a separate fence, and that upon the east 22 1/2 feet and the west 30 feet of lot 6, block 33, there was located a dwelling house, which was occupied by a tenant of the said Mary L. Moody at the time of her death; that the said eastern part of lot 5 had been cut off from the western portion for many years prior to the death of Mary L. Moody, and during all of said time the dwelling house had stood upon said lots, and had been occupied by tenants of Mrs. Moody (except occasional intervals), who exercised exclusive possession and control over the same. Respondents further answered that they are advised and believe that Mary L. Moody was not the head of a family at the time of her death in the sense in which the allegation is made, and that no part of the said lot 5 was a homestead within the meaning of the constitution and laws of the state of Florida.

It is alleged that Mary L. Moody acquired said lot 5 during the life of her husband, Paran Moody, on the 20th day of August 1886, by deed of conveyance, and that she lived on the said west 82 1/2 feet of said lot 5, with her husband and two daughters, Hattie and Rosa, until the death of her husband, in June, 1887, and after his death she continued to live thereon until the time of her death; that after the death of her husband, and until the 11th day of November, 1891, Mrs. Moody lived upon said property with her two unmarried daughters, Hattie P. and Rosa, when Rosa was married to defendant Walter B. Clarkson, and that thereafter she continued to live upon said property with her said daughters and Walter B. Clarkson until the time of her death. It is admitted that Mrs. Moody left surviving her the heirs named in the bill, and it is alleged that Mary A. De Cottes and Estelle Hopkins were married to their respective husbands many years before the death of their mother, and from the time of their marriages they lived separate and apart from their mother, and were so living at the time of her death, and had been from the time of their marriages, supported by their respective husbands. It is alleged that Rosa Clarkson had been supported and maintained by her husband from the time of their marriage, and that Hattie P. Moody was over 21 years of age at the time of her father's death (June, 1887), and from that time until her mother's death she was possessed of a strong and vigorous constitution, and was not dependent upon her mother for a support; that during all of said time she was fully capable and able to earn her own living, and that, although she lived with her mother until her death, and had remained with her all the former's life, and had been maintained and supported by her mother, yet the services which she rendered her more than compensated her for the food and clothing provided for the daughter. It is also stated that Hattie P. Moody assisted her mother with housekeeping, and attended to most things of that kind that were to be done, and that she attended to most of the details of her mother's business, the latter being possessed of considerable property. It is also stated that Mary L. Moody was sick, infirm, and feeble for six months prior to her death, and that during this time Hattie P. had almost complete charge of all of her mother's affairs, and nursed her and constantly attended her in her last illness; and it is alleged that at the time of her death Mary L. Moody had no one dependent upon her for...