Kionka's Estate, In re

• Citation: 113 So.2d 603
• Decision Date: 01 July 1959
• Docket Number: No. 1039,1039
• Parties: In re ESTATE of Anna Z. KIONKA, deceased. Robert E. TRAPP, Lloyd F. Kruckemyer, and Albert H. D. Besalski, as the President, Secretary, and Pastor, respectively, of the Congregation of Trinity Evangelical Lutheran Church of Orlando, Florida, Appellants, v. Margaret Ann HEBBARD, and Walter R. Ziegler, Executor of the Last Will and Testament of Anna Z. Kionka, Appellees.
• Court: Florida District Court of Appeals

Page 603

113 So.2d 603

In re ESTATE of Anna Z. KIONKA, deceased.

Robert E. TRAPP, Lloyd F. Kruckemyer, and Albert H. D. Besalski, as the President, Secretary, and Pastor, respectively, of the Congregation of Trinity Evangelical Lutheran Church of Orlando, Florida, Appellants, v. Margaret Ann HEBBARD, and Walter R. Ziegler, Executor of the Last Will and Testament of Anna Z. Kionka, Appellees.

No. 1039.

District Court of Appeal of Florida, Second District.

July 1, 1959.

Sanders, McEwan, Schwarz & Mims, Orlando, for appellants.

Bishop & Bornstein, Orlando, for appellee, Margaret Ann Hebbard.

Stephen R. Magyar, Orlando, for appellee, Walter Ziegler.

MOODY, JAMES S., Associate Judge.

The appellee, Margaret Ann Hebbard, filed her petition in the County Judge's Court of Orange County for the determination of the homestead status of certain property owned by Anna Z. Kionka, deceased, at the time of her death. The appellants, Robert E. Trapp, Lloyd F. Kruckemyer, and Albert D. Besalski, as President, Secretary, and Pastor, respectively, of the Trinity Evangelical Lutheran Church of Orlando, Florida, and the appellee, Walter R. Ziegler, as executor of the last will and testament of Anna Z. Kionka, filed answer. From the order of the County Judge determining said property to have homestead status, the appellants filed this appeal.

The evidence in this case showed that Hans C. Kionka and wife, Anna Z. Kionka, in 1948, requested Mr. Kionka's niece, Rose Marie Gaertner, a registered nurse, 28 years of age, residing in Germany, to come to this country to live with them in their household as a member of their family. The Kionka's had no children of their own although they had previously legally adopted Margaret Ann Hebbard, petitioner below, in 1918. Mrs. Hebbard had subsequently married and had been residing elsewhere for a number of years. Rose Marie Gaertner came to this country in January, 1950, took up residence with the Kionkas in their home as a member of the family in New Jersey and attended a vocational training school for further training. In June of 1951 the Kionkas moved to Florida and bought the property in question in their joint names. Rose Marie and the Kionkas lived together on said property until the death of Hans C. Kionka on October 29, 1951. Thereafter Mrs. Kionka, being the sole owner of the property, continued to live there with Rose Marie until her death in December 1957. Rose Marie worked as a practical nurse in New Jersey until she moved to Florida and then obtained a similar position at the Florida Sanatorium in Orange County.

During the times involved the parties lived together as one family group with Hans C. Kionka the head of the group. After his death Rose Marie and Anna Z. Kionka continued to live together on the property in question as a family group with the latter exervising controlling authority. Rose Marie was allowed to keep her earnings both in New Jersey and in Florida without having to pay any sums for room and board. Immediately after Mr. Kionka's death, Mrs. Kionka became in poor health so Rose Marie no longer worked outside the home and spent her time caring for Mrs. Kionka. She was paid a specified amount each week for her services although she could have earned more outside the home. During this period of time, Rose Marie gave birth to an illegitimate child which was named after a deceased son of Mrs. Kionka who expressed great love for the child. Mrs. Kionka's health gradually failed and for the last several years of her life she was more or less an invalid unable to care for herself or her affairs. Active management of her affairs was taken over by her brother and later executor, Walter R. Ziegler, and Mr. Stephen Magyar, her attorney, who had drawn her will. Mr. Magyar paid the bills and treated Rose Marie as any other employee, there being evidence that this was deemed advisable because of the jealousies that arose between Rose Marie and other nurses called in to assist in the care of Mrs. Kionka.

Mrs. Kionka died testate on September 24, 1957, leaving the bulk of her estate to Margaret Ann Hebbard, devising the sum of $5,000 each to Rose Marie Gaertner and her son, Karl Fredrick Gaertner, and devising the property in question to the Trinity Evangelical Lutheran Church of Orlando, Florida, for the purpose of establishing a memorial in the name of her deceased husband. The will was probated and in June of 1958 Rose Marie filed a claim for herself, and for her son, respectively, each in the amount of $5,000 alleging under oath that it would appear the assets of the estate would be insufficient to pay the legacies in the will, that such legacies were based upon valuable consideration, namely, an agreement with Mrs. Kionka according to which, in return for services rendered by Rose Marie Gaertner, Mrs. Kionka had agreed to pay the two sums of $5,000 each. During the course of taking testimony, it develpped that Miss Gaertner, after filing these claims, reached an agreement with Mrs. Hebbard, the adopted daughter, that if Mrs. Hebbard were successful in having the property declared homestead, that it be sold and the sales price equally divided.

The lower court found that there was no legal duty of support from Mrs. Kionka to Rose Marie and her son, but that Mrs. Kionka treated said parties as members of her family; that Mrs. Kionka was the head of the household; that Rose Marie and her son were members of her family group and therefore the property in question was the homestead property of Anna Z. Kionka at the time of her death leaving surviving her daughter, Margaret Ann Hebbard. The lower court, in effect, held that at the time of her death Mrs. Kionka was the head of a family within the meaning of the Florida Constitution, Section 1 of Article 10, F.S.A., and that the attempted testamentary devise was invalid as to the home place.

The question of what constitutes the head of a family under the above constitutional section has been the subject of a number of decisions, but we have found no Florida cases construing this provision as applied to an alleged family group, the members of which are unrelated by blood to 'the head' of that 'family'. Research as to cases in other jurisdictions reveals a dearth of authority there.

The early case of Johns v. Bowden, 68 Fla. 32, 66 So. 155, 159, although not involving strangers in blood, states the rule of law which appears to have been uniformly followed in this state and by the weight of authority in other jurisdictions. In that case, it is stated:

'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." (Emphasis supplied.)

It has been loosely stated that a party constitutes the head of a family if there is a family at law or a family in fact. Beck v. Wylie, Fla., 60 So.2d 190; Solomon v. Davis, Fla., 100 So.2d 177, 179. Parties cannot stipulate as to a family relationship so the rule of 'personal authority and...