Doing v. Riley

• Decision Date: 17 September 1949
• Docket Number: No. 12500.,12500.
• Citation: 176 F.2d 449
• Parties: DOING et al. v. RILEY. RILEY v. DOING et al.
• Court: U.S. Court of Appeals — Fifth Circuit

176 F.2d 449 (1949)

DOING et al. v. RILEY.

RILEY v. DOING et al.

No. 12500.

United States Court of Appeals Fifth Circuit.

July 22, 1949.

Rehearing Denied September 17, 1949.

COPYRIGHT MATERIAL OMITTED

James A. Dixon, Miami, Fla., for appellants.

D. H. Redfearn, Miami, Fla., R. H. Ferrell, Miami, Fla., A. C. Dressler, Miami, Fla., for appellee.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

This is a suit for construction of a will¹ and for a declaratory judgment as to the rights of the parties, brought against the executor and the devisees under the will of the Plaintiff's wife.

The Plaintiff and Mrs. Riley were married in August, 1933. A year later testatrix purchased a lot in Surprise Lake Subdivision on which Plaintiff erected a residence with his own funds and with borrowed money secured by mortgage on the lot and building. This residence was occupied as their homestead until 1937, when they built the Adobar² Hotel and moved into it as their place of residence. The hotel was erected on four lots in Miami Beach which Plaintiff and testatrix purchased in 1935, taking title in the name of Mrs. Riley. Both Plaintiff and testatrix, according to the evidence, furnished funds for the purchase of the lots, but the amount furnished by each is not clear, although apparently the testatrix furnished a larger portion of the funds. There was quite a financial struggle by the couple to raise funds with which to build and to furnish the hotel. We do not undertake to determine the specific amounts of money furnished by each of the parties toward the acquisition of the lots, the construction of the hotel, and the purchase of the furnishings. Certain it is, however, that they entered into a joint adventure of acquiring the lots, constructing and furnishing the hotel, towards which each of the parties contributed their own separate funds. Some of the cost was borrowed and repaid out of the profits later derived from the hotel. Some of the advertising matter in evidence stated that the hotel was "operated under the individual supervision of Mrs. Bart A. Riley", but a post card picture of the hotel carried the following information: "Adobar Hotel (Mr. and Mrs. Bart A. Riley)". Much of the furniture was purchased on credit and in the name of the Adobar Hotel. Some of the invoices were addressed to "Mr. and Mrs. Bart A. Riley".

The evidence shows that the burden of financing the construction of the hotel and furnishing same fell heavily upon the husband, who apparently, by the utilization of funds derived from his law practice and by the full exercise of his credit, kept the enterprise from being put into bankruptcy or from being lost by foreclosure. At an early stage of the operation of the hotel the parties closed their individual bank accounts and opened a joint one in the name of "Adobar". The evidence shows that for a long time Plaintiff deposited all of his earnings over and above the personal expenses of himself and wife in this account and that same was largely used in financing the joint enterprise. The testatrix managed the hotel, but the transactions involving the finances and taking care of suits and judgments were handled by the Plaintiff, and were frequently satisfied out of funds which he made available.

It is in evidence that the hotel became a profitable venture, beginning with the opening of the 1938-1939 season, and was successfully operated thereafter, although the Plaintiff supplied funds toward the satisfaction of debts after that time. It is in evidence that Mrs. Riley drew some funds from the hotel account which were invested in a home in New Lebanon, New York, and in the furnishing thereof, and that she drew other sums out of the hotel account, the exact amount of which we do not here undertake to ascertain.

The opinion of the Court below is reported at D.C., 77 F.Supp. 415, and we shall discuss the questions in the order in which they appear in that opinion.

The first question presented is whether or not the will of Mrs. Riley conferred upon her husband the option to "renounce this will and elect to take the share of a surviving husband" under the laws of the state. No statute of Florida confers upon the husband any option to renounce his wife's will and take under the laws of intestacy, as the wife may do. The Court below decided that the will granted no such privilege to the husband and from that portion of the decree the Plaintiff has filed a cross-appeal. We agree with the conclusion of the lower Court in this respect and its decision on the cross-appeal is affirmed.

The Plaintiff also insisted in the Court below and here that as to the furniture in the hotel, certain funds in the Miami Beach First National Bank, and as to the real estate in Florida, an estate by the entireties was created and that under the laws of the State of Florida the title thereto vested in Plaintiff, the survivor, upon the death of the wife.

Before discussing this question, we think it well to take notice of the fact that much of the testimony as to these transactions was supplied by the Plaintiff, whom the defendants say, under Sec. 90.05 of Florida Statutes, 1941, F.S.A.,³ could not be examined as a witness in regard to any transaction or communication between himself and the deceased in order to establish a claim against, or interest in, the property of the decedent. The Supreme Court of Florida has held that the statutory disqualification of Sec. 90.05, Fla. Stat., 1941, F.S.A., may be waived either by the giving of testimony by opposing parties on the subject, or by any other conduct on the part of the class protected by the statute, clearly indicating that they, knowing their rights under the statutes, wished to waive the protection afforded thereby. See Rich v. Hunter, 135 Fla. 309, 185 So. 141. When Defendants introduced Exhibit C, which was a statement written by Mr. Riley on September 6, 1937, objection was made to its introduction unless the Plaintiff were to be accorded the right to explain the matters and things therein. The Court admitted the document and thereupon held that the introduction of same was a waiver of the bar of the statute. We accept this ruling of the lower Court and agree that Mr. Riley was not disqualified to give testimony in explanation or rebuttal of the matters thus put in evidence by the Defendants. Considerable documentary evidence, as well as testimony of disinterested parties, was admitted which in no wise came within the prohibitions of the statute. We will not undertake to segregate and separately discuss the rulings of the Court on the evidence, but will assume that he based his findings of fact on only the evidence that was competent.

The lower Court thought that because the furnishings for the hotel were billed to Adobar, and were paid for by checks on Adobar and by funds supplied by both the husband and wife, an estate by the entireties was thus created in such furniture, and, therefore, the title to all of the furniture — other than some that was admittedly the separate property of one or the other — passed to the Plaintiff as survivor in such estate by the entireties.⁴

An estate by the entireties in personal property can exist in Florida, according to the decisions of its Supreme Court, Bailey v. Smith, 89 Fla. 303, 103 So. 833,⁵ but no decision of that Court nor statute of the State prescribes the procedure by which an estate by the entireties in personal property may be created. The statement "the acquisition of property by and in the names of both husband and wife" plus an intent to create such an estate, seems to be about all that has been written by the State Court on the subject. See Bailey v. Smith, supra.

An estate by the entireties in real estate may be created by a properly executed conveyance to the husband and wife when there is shown no intent to create a tenancy in common. See: Bailey v. Smith, supra; Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223; Matthews v. McCain, 125 Fla. 840, 170 So. 323; Knapp v. Fredricksen, 148 Fla. 311, 4 So.2d 251.

We would have no difficulty in sustaining an estate by the entireties in personal property if it had been evidenced by a bill of sale to the husband and wife, as such, and where there was evidenced the requisite intent to create such an estate, but we are not convinced that the mere purchase of personal property out of a joint bank account of the husband and wife, and from contributions from each out of their separate funds, plus the facts that the furniture was billed to Adobar and that some of the invoices were made out to Mr. and Mrs. Riley, were sufficient, in the absence of any showing of any specific intent, to set up an estate by the entireties in such furniture. It is true that the title to personal property may pass by delivery, but there must also be an intent to create an estate by the entireties, and such intent ought to be made clearly to appear since upon the decease of one spouse the survivor would become the sole and complete owner of the property to the exclusion of the children and creditors. We do not believe that an estate by the entireties was shown to have been created in the furnishings of the hotel.

We agree with the lower Court that there was no proof of the creation of an estate by the entireties in the real estate.

The next question presented for a declaration of the rights of the parties is whether or not the Plaintiff would have been entitled to a homestead in his equity in the Adobar Hotel property, and, if so, what the effect would be upon the rights of the parties here. It is without dispute that upon the completion of the hotel Mr. and Mrs. Riley made their home there until the death of the testatrix, and that the real estate upon which the hotel was located comprised less than one-half acre of land. It is also shown that Mr. Riley claimed and secured from the taxing authorities of Dade County a homestead exemption to the extent of...