Jones v. Neibergall
| Decision Date | 01 August 1950 |
| Citation | 47 So.2d 605 |
| Parties | JONES v. NEIBERGALL et al. |
| Court | Florida Supreme Court |
Hal S. Ives, Paty, Warwick & Paul, all of West Palm Beach, for appellant.
Clyde G. Trammell, West Palm Beach, for appellee.
On first consideration of this cause, and on petition for rehearing, the sole question with which we were confronted, was whether or not the locus involved was a homestead as contemplated by Article X of the State Constitution, F.S.A. No other question was raised by the pleadings or adjudicated by the chancellor. The chancellor gave an affirmative answer to this question. We affirmed his decree in the face of evidence that was in sharp conflict.
On reconsideration, it was, for the first time, contended that our order affirming the chancellor's decree had the effect of creating a wholly inequitable situation, in that under such ruling the appellee will, under the will of her deceased mother, receive all of her part of the mother's estate and two-thirds of that part decreed to be the homestead. Not only that, but it is contended that appellee is forever barred from claiming any right to that portion of the property of said estate which appellant has received and appropriated under the mother's will without offering to do equity, notwithstanding she assented to the distribution, appropriated her part and does not now offer to do equity.
The pleadings in the case did not present any such alleged equities and they were not urged at the bar of this court until the reconsideration. It is quite true that reasonable inferences from the evidence may be said to point to said equities, but not having been presented or ruled on by the trial court, it would be utter folly to urge their adjudication by this court at this time. We will not divine issues from the ether nor attempt to adjudicate those not presented by the pleadings or ruled on by the trial court. It is a fact that the chancellor retained jurisdiction of the cause for the purpose of entertaining appellee's, Pauline Jones Neibergall's counterclaim in which she became the first actor seeking equitable relief.
In this state of the record Mr. Chief Justice ADAMS, Mr. Justice CHAPMAN, Mr. Justice HOBSON and Mr. Justice TERRELL are of the view that our order affirming the decree of the chancellor should be adhered to and reaffirmed, but without prejudice to an application on the part of either party at the time the chancellor entertains the counterclaim, to recast the pleadings so as to raise and present the equities contended for, produce evidence to establish them, and secure a ruling by the chancellor on the issues so made.
Mr. Justice THOMAS and Mr. Justice SEBRING are of the view that our order affirming the decree of the chancellor should not be adhered to and reaffirmed.
Ordered accordingly.
Willie Jones was aged and the mother of three adult children. Pauline and Howard had married and Paul remained single. Mother Jones wished to leave an equal portion to her three children. She called them into conference and then all conferred. Distribution was agreed upon. The will was drawn and shortly thereafter mother Jones died. The will was probated and distribution made accordingly. Paul went to war and left his sister Pauline in charge of that which was devised to him. Upon his return she turned over to him $1000 in collected rents.
Then the trouble started. Pauline now claims that the one lot devised to Paul was her mother's homestead and not alienable by will. Paul also received a specific devise of 100 acres of land near Brooksville.
The mother made specific devises to Pauline, Howard and Paul and the devise to Pauline is first and is as follows:
'Third
'I hereby give, bequeath and devise unto my beloved daughter, Pauline Neibergall, the following described realestate: Lots Fifty (50), Forty-eight (48), Forty-seven (47), Forty-one (41), Thirty-nine (39) and Thirty-eight (38), of Lincoln Park Addition to the City of...
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...or ruled upon by the trial court will not be considered by this court on appeal. Mariani v. Schleman, Fla., 94 So.2d 829; Jones v. Neibergall, Fla., 47 So.2d 605. Moreover, appellant Lipe was under no obligation to assault the validity of the 1955 Act until he was adversely affected by it. ......
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Bennett v. State, 94-1306.
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