Mayer v. Mayer

• Decision Date: 31 August 1951
• Citation: 54 So.2d 105
• Parties: MAYER v. MAYER et al.
• Court: Florida Supreme Court

Page 105

54 So.2d 105

MAYER v. MAYER et al.

Supreme Court of Florida, en Banc.

Aug. 31, 1951.

F. A. Currie and William J. Lake, West Palm Beach, for appellant.

David B. Newsom, Miami, Fla., and S. F. Slaff, Passaic, N. J., for appellees.

HOBSON, Justice.

The learned Chancellor who determined the equities of this case made the following observations in his final decree:

'The question presented is whether under a conveyance dated February 1, 1932, the defendant, Alice Wash Mayer, holds title to certain property as the survivor of an estate by the entirety, or whether the property is a homestead and she holds possession only as the widow of the deceased, William Mayer, Sr.

'The deed in which Alice Wach, then single, was the grantor, was delivered while William Mayer, Sr., grantee, was married to another person. After the death of that person and the marriage of William Mayers, Sr., to Alice Wach, William Mayer, Sr., with the knowledge and consent of his then wife, Alice Wach Mayer, wrote in the deed after his name as grantee, the following: 'his wife Alice Mayer', and then recorded the deed. Unquestionably William Mayer, Sr., and his then wife Alice Wach Mayer, intended to create an estate by the entirety, so that Alice Mayer would have the whole on his death.'

In his order denying a petition for rehearing the Chancellor stated: 'As I indicated in the Final Decree, I reluctantly arrived at the conclusion announced in the Decree. If the testimony of Alice Wach Mayer is admissible--then it well may be that the interlineation was made in the deed before delivery and that, coupled with adverse possession, a sufficient basis exists to grant the Petition for Rehearing and hear further testimony. But, as a matter of law, I do not believe her testimony is admissible as to the transactions with her deceased husband.'

It may thus be seen that the Chancellor has 'pinpointed', so to speak, the question presented for our determination. That question is: Was the testimony of Alice Wach Mayer upon the subject of delivery of, and of how and when the interlineation was made in, the deed, admissible?

We are inclined to disagree with the able Chancellor and hold that the testimony offered by Alice Wach Mayer, which was stricken Should have been admitted.

The objection to the proffered testimony was predicated upon the so-called 'dead man's statute' which is Section 90.05, F.S. 1941, F.S.A. It is true that since Alice Wach Mayer was the wife and is the widow of William Mayer, Sr., and therefore a person who is interested in the event of this suit, she should not have been 'examined as a witness in regard to any transaction or communication between' herself and her deceased husband unless the defendants, or some of them who are heirs at law of William Mayer, Sr., should have first been examined on their or his own behalf concerning some feature or features of the overall transaction which took place between Alice Wach Mayer and William Mayer, Sr., during the latter's lifetime, with reference to the title to the busject property.

Counsel for appellee insist that none of the appellees attempted 'to testify as to actual delivery of the deed, or as to when and why the inserted words were written therein.' Appellees maintain that such testimony as they gave was confined to possession and occupancy of the property and the character of their deceased father's possession, whether as owner or otherwise. The inference to be drawn from their brief is they they would give to the word 'transaction' as it is used in Section 90.05, supra, a very narrow and restricted construction. They appear to hold the view that the act of interlining and the conversation and circumstances attendant thereon should be construed as the 'transaction' contemplated by the statute. Appellees emphatically state that no one of them gave any testimony within this limited sphere. Our study of the record sustains this contention.

Nevertheless, appellees, or some of them, testified concerning what their father told them about his relationship to the property. This testimony was to the effect that the father had claimed to be its sole owner. The question of ownership of the property is what gave rise to this litigation. When some of the appellees testified that their father told them he owned the property, such testimony obviously was given with the purpose in mind of persuading the Chancellor that William Mayer, Sr., had not intended to do, and had not done, any act which would have been calculated to create an estate by the entirety. Alice Wach Mayer endeavored to testify to the contrary by explaining the circumstances surrounding the insertion in the deed of the words 'his wife, Alice Mayer'.

The claims of all litigants are founded upon one and the same written instrument, to-wit: the deed in which the interlineation appears. This controversy revolves around the title to the property described in that deed. The appellant was the grantor and the deceased husband was originally named as sole grantee. They were, at the time of the interpolation, the only parties who possessed any interest in the title to the land in litigation. It is true that the act of...