Efstathion v. Saucer

• Decision Date: 18 March 1947
• Citation: 29 So.2d 304,158 Fla. 422
• Parties: EFSTATHION et al. v. SAUCER et al.
• Court: Florida Supreme Court

29 So.2d 304

158 Fla. 422

EFSTATHION et al. v. SAUCER et al.

Florida Supreme Court

Jan. 28 1947.

Rehearing Denied March 18, 1947.

Appeal from Circuit Court, Putnam County; George William Jackson, judge.

Walton & Walton, J. V. Walton and Kate L. Walton, all of Palatka, for appellants.

Fred S Rizk, of Jacksonville, for appellees Joseph M. Saucer and Jamily Mallem.

J. B Canon, of Palatka, for appellee Lillie Attim.

HARRISON, Associate Justice.

The facts of this case and the questions to be determined can be more clearly stated by a full recital of the decree entered by the trial court, which is as follows:

'Declaratory Decree.

'This cause coming on to be heard upon the Plaintiffs' Bill of Complaint, and the several Answers of the Defendants as Amended, and the Stipulation of the parties, and the Special Master's Report of Testimony of the parties and their witnesses, and the same having been argued by counsel for the said parties, and the Court having considered the same, upon consideration thereof, the Court finds

'1. That on September 6, 1886, said Moses Saucer and Djedaidy George were lawfully married, and that the plaintiffs, Joseph M. Saucer and Jamily Mallem were born of said marriage, and were all of the children of the said Moses Saucer; that thereafter, on to-wit: February 11, 1918, the said Djedaidy Saucer, died and that on May 30, 1920, the said Moses Saucer and Marti Ellis, a widow, were lawfully married in Putnam County Florida; that the defendant, Lottie Milam, is the daughter of the said Marti Ellis Saucer, deceased, born of a prior marriage between the said Marti Ellis Saucer and Ellis, and said Lottie Milam was and is the sole surviving heir at law of the said Marti Ellis Saucer; that the said George Milam is the son of the said Lottie Milam; that the said defendant Lillie Attim is a niece of the said Marti Ellis Saucer; and that the said Joseph M. Saucer and Jamily Mallem were the step-children of the said Marti Ellis Saucer.

'2. That on, to-wit, June 24, 1922, the said Moses Saucer acquired title to the southerly 140 feet of Lots 2 and 3 of Block 37 in the City of Palatka, Florida; on which was then situated a dwelling house, out buildings used in connection therewith, and certain store buildings; the said dwelling house was a two story building and divided into two apartments, one on the lower and one on the upper floor, and that from the said June 24, 1922, until the date of his death, August 20, 1939, the said Moses Saucer and his wife, the said Marti Ellis Saucer, lived and resided and had their permanent home and place of abode on the second floor of said dwelling house, and occupied the entire second floor thereof, and used certain of the out buildings situated thereon for domestic purposes and garaging an automobile of the said Moses Saucer; that during all of said time, said Moses Saucer rented the lower floor of said dwelling house to tenants; that after purchasing said Lot 2, and during his lifetime, the said Moses Saucer built and constructed on said Lot 2, a certain garage shown and designated on the plat attached to and made a part of the stipulation of the parties, as building 'B', and used said garage from the time of its construction until the time of his death for the purpose of garaging his automobile; that said dwelling house and the out buildings so used by the said Moses Saucer, including said garage, are situated wholly within the southerly 140 feet of Lot 2 of Block 37; that subsequent to his purchasing said property, and some years prior to his death, the said Moses Saucer built and constructed on said Lot 2, a certain building shown on the plat filed with and as a part of the stipulation of the parties herein, and designated on said plat as building 'C'; that from the time said building 'C' was constructed, and up to the death of the said Moses Saucer, said building 'C' was rented to tenants and was never used or occupied by the said Moses Saucer as a business house or for domestic purposes; that situated on said Lot 2 are two store buildings, which are shown on the plat attached to and made a part of the stipulation of the parties herein, and thereon designated as buildings 'D' and 'E'; that from the time that the said Moses Saucer purchased said property up to the time of his death, he alternately rented said store buildings 'D' and 'E' to tenants, or used the same as places of business for the transaction mercantile business run and operated by himself and the said Marti Ellis Saucer; that from about the year 1932 until he was incapacitated by his last illness, the said Moses Saucer operated a pool room in building 'E'; that the operation of said pool room was intermittent on account of the age and failing health of the said Moses Saucer; that during the latter months of his life, and up to the time of his death, a small mercantile business was operated in the store room 'D' by said Marti Ellis Saucer or Moses Saucer, or by both, the record does not definitely disclose by whom said business conducted in said store room 'D' was operated.

'3. That from the time said Moses Saucer acquired title to said Lot 3, and up until his death, all the buildings situated on Lot 3 of Block 37, were almost continuously used as rental property and had been rented for considerable time prior to the death of said Moses Saucer; that the said Moses Saucer occasionally and temporarily used the buildings situated on said Lot 3 for business purposes when they could not be rented to tenants.

'4. That the said Moses Saucer died August 30, 1939, leaving his last will and testament, which was duly admitted to probate, whereby he attempted to bequeath and devise all of his property, real, and personal and mixed, to his wife, the said Marti Ellis Saucer, except two insignificant legacies of personal property; that the said Moses Saucer was survived by the said Marti Ellis Saucer as his widow, and by Joseph M. Saucer and Jamily Mallem, who were all of his heirs at law, and who were children of the said Moses Saucer by a former marriage; that said Marti Ellis Saucer died March 14, 1943, leaving her last will and testament wherein she attempted to devise to Lottie Milam, her daughter by a marriage to Ellis, who was her sole heir at law, all of Lot 2, of Block 37; and to her niece Lillie Attim, the easterly three feet of Lot 3 of Block 37; and to her stepchildren, Joseph M. Saucer and Jamily Mallem, the westerly 47 feet of Lot 3 of Block 37; that said will was duly proven and admitted to probate.

'It is thereupon ordered, adjudged and decreed That at the time of his death, the said Moses Saucer was the head of a family residing in the State of Florida, and that the following described parcel of land, and the improvements thereon, constituted his homestead, to-wit:

'That parcel of land described as follows:

"Being a part of Lot 2 of Block 37 of the City of Palatka, Florida, and commencing at the corner of the building which is situate at the intersection of the southerly line of Lemon Street with the easterly line of Seventh Street, this said point being the northwesterly corner of Block 38 of the City of Palatka Florida, thence run north 12 degrees and 30 minutes east along the easterly side of Seventh Street for a distance of 60 feet and ten inches to the building which is situate at the southwesterly corner of Block 37 of the City of Palatka, Florida, which is also the...