Shone v. Bellmore
| Decision Date | 08 April 1918 |
| Citation | 78 So. 605,75 Fla. 515 |
| Parties | SHONE et al. v. BELLMORE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; H. Pierre Branning, Judge.
Suit by Theresa Bellmore, in her own right and as next friend of her minor son, Samuel Rhodes, against Anna H. Shone and others. From an order overruling their demurrers to the amended bill Anna H. Shone and certain other defendants appeal. Orders affirmed.
Syllabus by the Court
A demurrer addressed to the entire bill of complaint will be overruled if the bill contains any equitable ground or basis for the relief sought.
A demurrer to a bill in equity operates as an admission that all such matters of fact as are well and sufficiently pleaded in the bill are true, but allegations of law are not admitted by the demurrer.
A head of a family who is the owner of a homestead cannot by his will bar the interest of his wife and children in the homestead.
A posthumous child of a man who is the owner of a homestead in this state is included among the heirs to whom the exemptions provided by article 10 of the Constitution inure.
An allegation in a bill of complaint that the deceased was at the time of his death the owner of certain lands lying in a body, which with his wife he occupied as their homestead, is sufficiently certain to present an issue as to whether the land occupied by the deceased at the time of his death was his homestead.
The mere platting of land, not within the limits of an incorporated city or town, and sale of lots according to such plat, which land is owned by the head of a family, and occupied by them as their homestead, does not destroy its character as a homestead, nor conclusively show an abandonment of the homestead by the owner.
COUNSEL Atkinson & Burdine, of Miami, for appellants.
Carson & Pine and R. B. Gautier, all of Miami, for appellee.
Theresa Bellmore, in her own right and as next friend of her minor son Samuel Rhodes, brought a suit in chancery in the circuit court for Dade county against the appellants and others.
The purpose of the bill was to obtain a decree declaring the will of Samuel Rhodes, deceased, the former husband of Theresa Bellmore, and the father of Samuel Rhodes, minor, to be void as an attempt to devise a homestead; to set aside the homestead to the use of the widow and child; and to declare certain deeds which purport to convey part of the lands covered by the homestead to be null and void.
The appeal is taken by some of the defendants named in the amended bill of complaint, and by some who are named as defendants in the original bill, but not named as defendants in the amended bill, from an order overruling their demurrers to the amended bill.
A great many points of law were presented by the demurrers, one of which contained 25, and another 45 grounds. These demurrers however, were all general demurrers, in that they were addressed to the bill as a whole, although there are some grounds which might have been specially directed to certain portions of the bill as amended.
Following the settled rule in this jurisdiction, therefore, we will confine our investigation to the inquiry whether there is equity in the amended bill of complaint, and if the bill appears to rest upon any equitable ground, we shall affirm the chancellor's order. Of course if there is no equity in the bill, the order should be reversed and the bill dismissed, or leave be given to amend. See Prince v Mahin, 73 Fla. 525, 74 So. 696; Mitchell v Mason, 65 Fla. 208, 61 So. 579; Carlton v. Hilliard, 64 Fla. 228, 60 So. 220.
A demurrer to the whole bill in equity operates as an admission that all such matters of fact as are well and sufficiently pleaded in the bill are true, allegations of law are not admitted by the demurrer. Capital City Bank v. Hilson, 64 Fla. 206, 60 So. 189, Ann. Cas. 1914B, 1211.
It appears from the allegations of the bill that Samuel Rhodes was the owner of a tract of land, not within the limits of any incorporated city or town; that on November 11, 1898, two days before he was married, he caused the land to be platted. On November 15, 1898, two days after his marriage, he caused this plat to be filed in the office of the clerk of the circuit court for Dade county. This plat was duly recorded, and shows that the lands were divided into blocks and lots varying in dimensions and into streets and 'avenues'; that on the 13th day of November, 1898, he and the complainant Theresa Bellmore were married, and they lived upon the land as their homestead until May 4, 1900, when Samuel Rhodes died. He left a will in which he devised to his sister certain lots of land in section 14, township 54 S., range 41 E., in payment of a debt he owed her, and empowered his executors to execute a deed to her therefor; to his wife, Theresa, he devised all the remainder of his real and personal property to be held for her in trust by Mrs. Ellen Fox and George L. McDonald, with power to 'sell and convey for the best prices and in such parcels as they may deem to the interest' of his estate and for his wife. Then follows a description of the land. The will provided that the trustees should continue until his wife should attain the age of 25 years, when they should render a full account of their acts and doings, and execute to her a deed for all the real estate which may then be held by them under the will. The same persons were appointed executors. By a codicil dated about a month later he appointed John A. McDonald as one of his executors, to have the 'same power and authority already given to the other two.'
It appears from the amended bill of complaint that the will was duly admitted to probate, and that five months after his death his wife gave birth to a son, who is one of the complainants to the bill by his mother as next friend.
Paragraph 1 of the bill describes certain blocks and lots according to the above-mentioned plat as having been occupied by Samuel Rhodes at the time of his death as his homestead; that said blocks and lots were 'contiguous, lying in a body, and each piece thereof adjacent to some other part or parcel thereof.' The plat is attached to the bill as an exhibit, and is made a part thereof. This plat shows that many of the lots and blocks are separated by streets, but wherever that is the case it appears that the deceased owned the lots or blocks on each side of the street.
After the death of Rhodes his widow executed a deed of conveyance to Vernon Price-Williams to many of the lots. It appears: That other lots 'had been conveyed,' presumably before Rhodes' death, to Mary E. Peacock and J. S. Pent, and that certain other lots had at the time of Rhodes' death certain mortgages unpaid and outstanding against them. These mortgages were afterwards foreclosed, and certain other lots were sold under executions issued upon deficiency decrees against George L. McDonald as trustee, and George L. and John A. McDonald as executors, of the will. That the platted lands described as blocks and lots comprised 160 acres, and were 'held and occupied' by Rhodes as his homestead at the time of his death. That some of the defendants named in the bill claimed title to certain lots under the sheriff's deeds made under the deficiency decrees, others claimed title under deeds executed by George L. McDonald as trustee, one other, Vernon Price-Williams, under a deed from the complainant Theresa and other defendants who are named as defendants in their official capacity as county commissioners claim title to certain of the lands under tax deeds. It appears from the bill as amended that the complainant Theresa after the death of her husband remained 'at the home of the deceased' for about eight months, after which she moved with her infant son to the city of Miami. Afterwards she moved to Atlanta, Ga., and other places out of the state from time to time, until September, 1906, when she married her present husband, J. A. Bellmore, and in 1914, they moved to Dade county, which is her present place of residence.
The prayer of the amended bill of complaint is as follows:
'That a homestead may be declared and defined for the use and benefit of complainants, consisting of 160 acres of lands hereinbefore described, of which said Samuel Rhodes, deceased, died seised and possessed of, and which he occupied as his homestead at the time of his death; that after the said homestead shall be declared and defined by the court, any and all of the conveyances to any of said lands made by any person or persons without authority as herein alleged shall be canceled of record, and shall be declared null and void as against complainants; and that the will of Samuel Rhodes, deceased, as herein described, shall be declared null and void as to the lands so declared to be the homestead of said Samuel Rhodes, deceased; and that your orators, the complainants herein, be declared the owners of said lands set apart as a homestead; that all of the defendants, and each of them, having or claiming to have any interest in said lands, be ordered by this court to convey all their right, title, and interest therein to the said complainants; and that the title of the complainants to the lands so declared to be the homestead of the said Samuel Rhodes deceased, be quieted as against the said defendants, and each of them; and that any and all deeds through which the said defendants or any of them claims title to said land or any part or parcel thereof be declared clouds against the title of complainants, and be canceled of record by the decree of this court; and for such other and further relief as equity may require and to your honor shall seem meet.'
If the will of Samuel Rhodes, deceased, is void for any reason, and the complainants...
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