Johns v. Bowden

CourtUnited States State Supreme Court of Florida
Citation66 So. 155,68 Fla. 32
PartiesJOHNS et al. v. BOWDEN et al.
Decision Date25 June 1914

Appeal from Circuit Court, Duval County; R. M. Call, Judge.

Bill by Anna Mary Bowden Johns and others against Richard Fleming Bowden and others. From a decree dismissing the bill complainants appeal. Reversed and remanded.

Syllabus by the Court

SYLLABUS

An unmarried man who is 'the head of a family residing in this state' to whom homestead exemptions have accrued may alienate his 'homestead so exempted by deed or mortgage duly executed by himself'; and, if he 'be without children,' he may dispose of his 'homestead by will in a manner provided by law.'

A married man may alienate his 'homestead so exempted by deed or mortgage duly executed by himself' and his wife but a married man who leaves a widow or a child surviving him cannot lawfully make a testamentary disposition of his homestead.

While 'the exemptions' impressed by law upon 'a homestead' 'shall inure to the widow and heirs of the party entitled to such exemptions,' the homestead property may be alienated by deed or mortgage, and may be disposed of by last will and testament, if there be no widow or child or 'the holder' of the homestead.

The status of a homestead which the Constitution impresses upon property under certain circumstances does not change the nature of the estate in the property 'owned by the head of a family residing in this state,' but merely exempts such property from certain liabilities to which it would otherwise be subject, and limits the owner's inherent power of alienation, by making such property 'exempt from forced sale under process of any court,' and by making the real estate 'inalienable without the joint consent of husband and wife, when that relation exists.'

The homestead exemptions impressed upon property 'owned by the head of a family residing in this state' 'inure to the widow and heirs of the party entitled to such exemption,' along with the respective rights in the property which are cast by law upon the widow and heirs of the head of the family who was at his death entitled to the exemption benefits.

To constitute a 'head of a family' there must be at least two persons who live together in the relation of one family, and one of them must be 'the head' of that 'family.' When the natural relation of husband and wife or parent and child, or that of being in loco parentis does not exist, the relation should be one in which an established and continuing personal authority responsibility, and obligation actually rests upon one as 'the head of a family' for the welfare of the others who, in law, should, or in fact, do, recognize and observe a family relation to the one as 'the head of a family.'

That which the law forbids to be done directly cannot lawfully be done by indirection.

If an attempted conveyance of homestead real estate is, in legal and practical effect, and operation a will, it may not be effective when the owner of the homestead leaves a wife or child.

Though the allegations of a bill of complaint be abstract and general, and largely in the nature of asserted conclusions, yet, if under the allegations a case entitling the complainant to relief as prayed can lawfully be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.

COUNSEL D. C. Campbell, of Jacksonville, for appellants.

B. B. Shields, Jr., J. L. Doggett, and E. J. L. Engle, all of Jacksonville, for appellees.

OPINION

WHITFIELD J.

The bill of complaint herein brought against Richard Fleming Bowden, James Uriah Bowden, a minor, and V. W. Shields, trustee, alleges, in substance: That the complainants and the defendant Richard Fleming Bowden are the sole surviving heirs at law of Uriah Bowden, deceased. That said Uriah Bowden and his wife, Sarah Ann Hogan Bowden, continuously and for a long period of time, prior to her death, lived, resided upon, made their home, residence, and place of permanent abode in and upon, the east 75 feet and 2 inches, more or less, of the south 85 feet, more or less, of lot 3 in block 54 in the city of Jacksonville, county of Duval, and state of Florida, and said property and premises was their homestead, at the time of her death, and could not have been alienated without their joint consent. That at the time of the death of the said Sarah Ann Hogan Bowden about July 28, 1902, the said complainants and said respondent Richard Fleming Bowden, and her said husband, Uriah Bowden, being her sole surviving heirs at law, then and there became heirs to and inherited all the right, title, and interest of said Sarah Ann Hogan Bowden, in and to said homestead, and thereafter said Uriah Bowden could not have lawfully alienated said homestead without the joint consent of said complainants and said respondent Richard Fleming Bowden. That after the death of the said Sarah Ann Hogan Bowden, aforesaid, the said Uriah Bowden continued to live, reside, make his only home and place of permanent abode in and upon said homestead continuously, until the time of said death aforesaid, and died therein and thereon. That said Uriah Bowden, prior to his death aforesaid, and while actually living, residing, making his home and place of permanent abode in and upon said homestead, and while the same was the homestead aforesaid, made his will, dated July 13, A. D. 1903, and codicil thereto, dated April 15, A. D. 1908. That said codicil of the testator contains the following:

'I have arranged to have the land described as lot three (3) in block fifty-four (54) in said city, county and state, according to the old numbers of said city of Jacksonville, conveyed to my son, Richard Fleming Bowden, for his use and benefit during his natural life, with the remainder upon his death to my grandson, the son of said Richard Fleming Bowden, James Uriah Bowden, in fee simple; and if for any reason said last mentioned lot of land should not be conveyed, I devise the same with all the appurtenances thereof to my son, Richard Fleming Bowden, for his own use and benefit, for and during his natural life, and I devise the same upon his death to my grandson, James Uriah Bowden, his heirs and assigns, in fee simple, and if said Richard Fleming Bowden should die before me and said James Uriah Bowden should survive me, I devise said last-mentioned lot of land and appurtenances to said James Uriah Bowden, his heirs and assigns, in fee simple. If said Richard Fleming Bowden should be living at the time of my death but said James Uriah Bowden should not be then living, I devise said last-mentioned lot of land and appurtenances to said Richard Fleming Bowden for his lifetime, as aforesaid, and upon his death to such children or child of said Richard Fleming Bowden as shall then be living, in fee simple. If said Richard Fleming Bowden and said James Uriah Bowden both die before me, I devise such last-mentioned lot of land and appurtenances to such children or child of said Richard Fleming Bowden as shall then be living.'

That said Uriah Bowden, while still living, residing, making his home and place of permanent abode in and upon said homestead, and while the same was the homestead as aforesaid, about the 15th day of April, A. D. 1908, and the same date as his last codicil to will aforesaid, made, to V. W. Shields, as trustee, the following:

'Trust Deed.

'This Indenture, made this 15th day of April, in the year of our Lord nineteen hundred and eight, between Uriah Bowden, widower, of Duval County, Florida, of the first part, and V. W. Shields, now rector of St. Johns Church, of said state and county, as trustee, as hereinafter provided, of the second part,

'Witnesseth, that the said party of the first part, for and in consideration of the sum of one dollar, lawful money of the United States of America, to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has bargained, sold and conveyed, and by these presents does bargain, sell and convey unto the said party of the second part, and his heirs and assigns forever, all the following piece, parcel, or tract of land, situated, lying, and being in the city of Jacksonville, county of Duval, and state of Florida, described as follows:

'Lot three (3) in block fifty-four (54) in said city, county, and state, according to the old numbers of said city of Jacksonville.

'Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise pertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also all the estate, right, title, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances.

'To have and to hold the above-described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof forever, in trust, to permit the said party of the first part to occupy and use the said land and appurtenances and to collect, receive, and appropriate to his own use and benefit the rents, issues, and profits thereof, and of every part thereof, for and during his natural life, or until the same shall be conveyed as hereinafter provided, and to convey said land and appurtenances, or any part or parts thereof, to such person or persons, in fee simple or otherwise, as said party of the first part may in writing direct, such conveyance or conveyances to be made in the lifetime of said party of the first part, and if said land and appurtenances, or any part...

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