Herrin v. Brown

• Decision Date: 12 January 1903
• Citation: 33 So. 522,44 Fla. 782
• Parties: HERRIN et al. v. BROWN, Sheriff, et al.
• Court: Florida Supreme Court

33 So. 522

44 Fla. 782

HERRIN et al. v. BROWN, Sheriff, et al.

Florida Supreme Court, Division A.

January 12, 1903

Appeal from circuit court, Holmes county; William D. Barnes, Judge.

Bill by James A. Herrin and others against W. M. Brown, sheriff, and others. Decree for defendants, and complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where all the children of a father and mother have arrived at their majority and have permandently departed from the home of their father, permanently severing their connection with his rooftree as members of his immediate family and household, and permanently making their homes elsewhere apart from his parental care, guidance, authority, and protection, permanently leaving no one to constitute the family under the headship of the father but his wife, their mother, and the mother dies, leaving the father as the sole remaining member of the former family, such father, under these circumstances, ceases, upon the death of his wife, to be the head of a family within the contemplation of our Constitution, and his former homestead ceases to be exempt to him under the Constitution.

2. A pleading is to be construed most strongly against the pleader thereof.

COUNSEL C. M. Jones (William Roberts, on the brief), for appellants.

Francis B. & Jno. H. Carter, for appellees.

OPINION

TAYLOR C.J.

This cause, being reached for final disposition, was heretofore referred by the two qualified members of the court to its commissioners for investigation, who reported the same recommending affirmance. Upon consideration of the case, upon the abstracts of the record upon which it has been submitted by Division A of the court, it finds that the appellants, as complainants below, filed their bill and amended bills in the circuit court of Holmes county, Fla., as the children and heirs at law of J. R. Herrin, deceased, to restrain and enjoin the sheriff of sad county from levying upon and selling certain land in said county alleged to have been the homestead of their ancestor, the said J. R. Herrin under a judgment recovered in Jackson county, Fla., in favor of one Peter Gillette, one of the appellees and defendant below, against Marius Herrin, as administrator of the estate of said J. R. Herrin, deceased, and to have said land adjudged to be exempt to them from forced sale under said judgment and execution under the Constitution and laws of Florida, as the heirs at law of said J. R. Herrin. The bill alleged that said real estate was patented to said J. R Herrin by the United States as a homestead, and that it comprises less than 160 acres of land; that said J. R. Herrin resided continuously on said land as his homestead with his wife from before the time of issuance of said patent until his death, and had no other home, and claimed no other; that a few months before the death of said J. R. Herrin his wife died, his children having all reached their majority, and were living away from him, leaving the said J. R. Herrin, at the time of his death, living on said homestead without wife or child; that at the time of his death he was temporarily absent from said homestead on a visit to Marius Herrin in Escambia county, paying a visit ti him. Temporary injunction was granted. To the bill as amended the defendants interposed...