Hussa v. Hussa

• Decision Date: 05 June 1953
• Citation: 65 So.2d 759
• Parties: HUSSA et al. v. HUSSA et al.
• Court: Florida Supreme Court

Page 759

65 So.2d 759

HUSSA et al. v. HUSSA et al.

Supreme Court of Florida, Special Division B.

June 5, 1953.

Allen & Knudsen, Fort Myers, for appellants.

Henderson, Franklin, Starnes & Holt, Fort Myers, for Leopold Hussa and Philip Hussa, Executor.

Cyrus Q. Stewart, Fort Myers, for Grace Wilson, appellees.

HOBSON, Justice.

Appellants filed a complaint in the Circuit Court of Lee County, Florida, against the appellees in which they sought to have a certain house and several lots located in the City of Fort Myers declared the homestead of the decedent Philip Hussa. Rosa Hussa was the wife and is the widow of Philip Hussa, deceased. They lived in New York City and because of his condition of health they visited Florida during the Winter season of 1939-40 and rented a home in Fort Myers. During their tenancy Philip Hussa decided to buy this home and entered into negotiations for the purchase thereof prior to the return of the Hussas to their home in New York.

It is not clear from the record just when Rosa Hussa left Fort Myers but it is evident that she returned to New York City in the Spring of 1940. Thereafter, upon completing the negotiations for purchase of the subject property and acquiring a deed thereto, Dr. Hussa returned to New York. The appellant Norman H. Bonter, who never lived in Florida, was the adopted son of Dr. Philip Hussa, deceased. Following the purchase of the house and lots in Fort Myers, Philip Hussa, deceased, formed and followed the pattern of spending the Winters in this home and the Summers in New York.

After the purchase of the Fort Myers property Rosa Hussa continued to be a citizen and resident of New York State and exercised the right of franchise there at all times up to the death of Philip Hussa. Appellant Rosa Hussa visited Fort Myers on two occasions after the purchase of the subject property but she did not live therein with Dr. Hussa or alone. Although she had never returned to Fort Myers after the Winter season of 1943 until subsequent to the death of her husband in 1950, she then came to Fort Myers, lived in the home and claimed it as homestead property. From the time of the purchase of the Fort Myers property until after Dr. Philip Hussa's death Rosa Hussa was an actual bona fide resident of New York City and occupied as her home an apartment at 315 West 79th Street. Philip Hussa left a will in which he devised the subject property to his brother Leopold Hussa with the understanding that the latter was to turn said property over to appellee Grace Wilson in payment of Philip Hussa's obligation to her of approximately $17,500 which sum she had loaned to decedent during his lifetime.

Appellants lay great stress upon the fact that the decedent Philip Hussa lived in the same apartment with his wife Rosa Hussa each Summer until shortly prior to his death. At this juncture it is deemed advisable to observe that although he admittedly lived in the same apartment with Rosa Hussa in the Summertime, as before stated, the testimony discloses the fact that they did not live together as man and wife. Moreover, when Dr. Hussa returned to New York City in the Spring or Summer of 1950 he rented a cottage at Woodmere on Long Island where he lived alone and in August of that year he passed away.

We are confronted with two questions on this appeal: (1) Did the property in Fort Myers, Florida, ever become vested with the character of 'homestead property'? (2) If it ever acquired the status of 'homestead property' was there an abandonment of the homestead as such?

The learned Chancellor who considered this case in the court below entered a final decree denying the relief prayed for by the appellants. It cannot be gainsaid that by necessary implication the Chancellor upheld the contention of the appellees that the subject property never constituted a homestead as contemplated by our Constitution or that if it ever acquired such status there was a definite abandonment of the property as homestead property.

After careful study and consideration of the transcript of the testimony in the light of the able briefs prepared by counse...