Miller v. Finegan

• Decision Date: 17 January 1890
• Citation: 7 So. 140,26 Fla. 29
• Parties: MILLER v. FINEGAN et al.
• Court: Florida Supreme Court

7 So. 140

26 Fla. 29

MILLER v. FINEGAN et al.

Florida Supreme Court

January 17, 1890

Appeal from circuit court, Orange county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

1. A busband and wife living together constitute a 'family,' within the meaning of the word as used in the first section of the ninth or homestead article of the constitution of 1868.

2. The third sections of the same article provided that the exemption of the homestead from forced sale, granted by the first section, to the head of a family residing in this state, should accrue to his heirs; and under it the exemption from such liability for indebtedness of the head of the family passed on his death to whomsoever the title of the homestead descended by virtue of the statute of descents, and became incident to the inheritance of the land.

3. The term 'heirs' in the third section includes an adult son, and an adult grandson, the son of a daughter deceased at the death of the head of the family, notwithstanding they were not at his death living at the home places.

4. Residence by the heirs on the homestead of the ancestor after his death is not necessary to continue the exemption of it from his debts.

5. A creditor seeking to satisfy a judgment which he has recovered against the administratrix out of the homestead of her intestate, who was the head of a family residing in this state, can claim no advantage from the fact that the wife has elected to take a child's part in lieu of dower. If by her election she forfeited her dower interest, the heirs took the entire homestead.

6. A judgment rendered against an administratrix on an indebtedness of her intestate, not excepted from the exemption provisions of the homestead provisions of the constitution of 1868, was not a lien on the homestead of the intestate, who was the head of a family residing in this state. The title to the homestead descended at his death to his heirs exempt from any liability for the indebtedness.

COUNSEL C. F. Akers, for appellant.

Foster & Gunby and J. F. Welborne, for appellees.

OPINION

RANEY C.J.

The first question to be disposed of in this case is whether Joseph Finegan, the intestate, was at the time of his death November 3, 1885, the 'head of a family residing in this state,' within the meaning of the first section of the ninth article of the constitution of 1868. That he and his wife were at the time occupying the land as a home is not denied, and that husband and wife living together constitute a family, within the spirit and intent of homestead legislation, whether it be in the form of organic or of more mutable law, is a sound and recognized proposition. Thomp. Homest. & Ex. §§ 44, 46, 48; Kitchell v. Burgwin, 21 Ill. 40, 45. Where the relation of husband and wife exists, their joint consent is essential under our constitution, to any voluntary alienation of the homestead, and the existence of such relation logically, if not necessarily, fills out the measure of the requirement of the constitution for exemption of the land owned by the head of the family, and occupied by them as a home, from forced sale.

2. Two of the complainants, J. Ford Finegan and J. Finegan Paramore are the heirs of the intestate; the former being his son, and the latter a grandson, and the child of a daughter, Mrs Paramore. The son was not living with the father at the death of the latter; and whether or not the grandson was, the record does not inform us. The son had attained his majority before such death; and the answer says that the grandson reached maturity before the filing of the bill, which, however, was nearly 19 months subsequent to his grandfather's death. As it does not affirmatively appear that the grandson was at the intestate's death under 21 years of age, or that he was living with his grandfather at the homestead, we will, as the most favorable view that can be taken with reference to the argument of counsel for appellant, regard him as having been over the age of 21, and as not one of those living at the homestead.

The complainants before us, seeking an injunction against the sale of the homestead of the intestate upon a judgment recovered since his death against his administratrix, are, then, his widow, a son, and a grandson. The constitution of 1868 provided that 'a homestead, to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of an incorporated city or town, owned by the head of a family residing in this state, together with one thousand dollars' worth of personal property, and the improvements of the real estate, shall be exempted from forced sale under any process of law, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists, * * *' and the exemptions 'shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption. * * *'

The indebtedness against which the exemption is claimed is a judgment recovered against the administratrix on a promissory note made by the intestate early in February, 1882.

The intestate enjoyed the benefit of the exemption. It was not necessary to such enjoyment that there should have been an attempt to enforce the debt against the land, nor an actual setting apart of the homestead in the manner provided by the statute, nor that there should be any record thereof.

To those upon whom the statute throws the title by descent, the constitution gives the right of exemption; or, in other words, the constitution makes the exemption an incident to the inheritance, and thereby, in so far as the homestead or other exempt property is concerned, repeals the general law, governing in the case of other property, that the heir takes subject to the debts of the ancestor.

The rights of the complainants, whatever they may be, accrued under the constitution of 1868; the indebtedness having been contracted and the intestate having died prior to the adoption of the present organic law, which organic law, we may remark, expressly ordains (section 3, art. 9) that the exemptions allowed by the former constitution shall apply to all debts contracted and judgments rendered subsequent to its adoption, and prior to the adoption of the present constitution.

It has been held, and must be regarded as settled by this court, that a widow is not an 'heir' of her husband, within the meaning of the ninth article of the constitution of 1868, where children survive him. Wilson v. Fridenburg, 19 Fla. 461, (decided in June term, 1882;) Brokaw v. McDougall, 20 Fla. 212; Wilson v. Fridenberg, 21 Fla. 386.

That the son and grandson are heirs, according to the statute of descents, cannot be denied; but it is urged that 'heirs' means 'children,' and that 'children' means 'infants,' or persons under 21 years of age, not adults; and two sections of statutory law are invoked in support of this view. The first of these is section 8, p. 531, McClel. Dig., it being the fifth section of an act approved January 16, 1866. The previous provisions of the act exempted certain personal property, and every dwelling-house, and the lot upon which it stood, in any city, town, or village, when the owner or his family resided in the house, and the house and lot did not exceed the value of $1,000, and to every farmer 40 acres of land, 5 acres thereof being in cultivation or productive use, or so much of the 40 acres as did not exceed the value of $1,000. The section relied upon by counsel provided that the proprietor of such lands so exempted from execution, attachment, and distress should have power to dispose of the same by last will and testament; and, should the proprietor of such land die intestate, then the same should descend to his widow and minor children, and such exemption continue through the widowhood of the widow, and the minority of the children; and, should the proprietor leave neither widow nor children, the property shall be subject to his debts.

The other section invoked is section 16, p. 533, McClel. Dig the sixth section of the act approved June 23, 1869, entitled 'An act for setting apart a homestead and personal property to be exempted from forced...