Spitzer v. Branning

• Court: United States State Supreme Court of Florida
• Writing for the Court: BUFORD, Justice.
• Citation: 184 So. 770,135 Fla. 49
• Decision Date: 16 November 1938
• Parties: SPITZER v. BRANNING et ux.

184 So. 770

135 Fla. 49

SPITZER
v.
BRANNING et ux.

Florida Supreme Court

November 16, 1938

Rehearing Denied Dec. 16, 1938.

Suit by Arthur W. Spitzer against Briggs Branning and wife, for partition of land. From a decree for defendants, complainant appeals.

Reversed and remanded. [135 Fla. 50] Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Stanley Milledge, of Miami, for appellant.

Hudson & Cason, of Miami, for appellees.

OPINION

BUFORD, Justice.

The appeal brings for review an order denying motion for decree in favor of the complainant on bill and answer and holding the answer sufficient as a defense.

[135 Fla. 51] The facts, as we gather them from the record, are that, William H. Spitzer died testate in June, 1930; his widow and an adult son, appellant here, were his sole heirs. By his will he bequeathed and devised all of his property to trustees for the benefit of his widow, his son and two grandsons. The widow dissented from the will and elected to take a child's part of all decedent's property.

Statutory proceedings were instituted to allot to the widow a child's part of the estate. Commissioners were appointed and reported. The County Judge approved Commissioners' division of decedent's property and this conclusion purported to vest in the widow the fee simple title to the property involved in this suit.

The record shows that while the property here involved was the homestead of William H. Spitzer at the time of his death, that fact was not brought to the attention [184 So. 771] of the County Judge in the allotment proceedings. The property not set apart to the widow was held by the trustees named in decedent's will for the benefit of the appellant and two grandsons of the decedent.

In October, 1932, the widow died testate, devising the property involved in this suit which, as above stated, is now shown to have been the homestead of William H. Spitzer, to Briggs Branning and Edith Branning, his wife; they went into possession and control of the property.

On March 23, 1937, the plaintiff, Arthur W. Spitzer, filed a bill of complaint in partition wherein he claimed an undivided onehalf interest in the property involved as the heir at law of William H. Spitzer, deceased, alleging, in effect, that the property involved constituted the homestead of William H. Spitzer at the time of his death and that the allotment of such property to the widow, who had elected to take a child's part, was without authority of law and of no force and effect insofar as that property was involved; [135 Fla. 52] and that the devise by Helen M. Spitzer, the widow, to Briggs Branning and his wife, Edith Branning, constituted a devise of only an undivided one-half interest in the property and was the entire interest in such property vested in Helen M. Spitzer at the time of her death.

The answer set up two defenses. The first is that the order of the County Judge's Court entered on August 1, 1931, approving the commissioners' report which purported to vest the fee simple title to the entire homestead in the widow was a valid order and operated to divest the appellant of his title and interest in the homestead; and, second, that even if the order was not valid the complainant in the court below, appellant here, is estopped from asserting any interest in the homestead property because the complainant had full knowledge of the election of Helen M. Spitzer to take a child's part, was advised of the pendency of the proceedings whereby a child's part was allotted to her; that he knew the homestead was included in the child's part allotted to the widow and consented to and acquiesced in such allotment, and has, until the commencement of this suit, acquiesced in the administration of the remaining one-half of the estate of William H. Spitzer by the trustees and has received the fruits and benefits of the trustees and is still receiving such fruits and benefits.

The question of estoppel may be disposed of by saying that the appellees are not in position to plead estoppel. Whatever interest they may have in the property is not the result of their reliance upon the action or non-action of the appellant. Whatever they have involved in this suit exists because of the devise by will which is nothing more than a gratuity and, therefore, whether it be little or much they have assumed no position to their detriment because of any conduct of the appellant.

Neither do the appellees stand in the position in all respects [135 Fla. 53] as that which was occupied by their donor or devisor further than as to the interest in the devised property which may have been subject to devise by the testate. As to title to real estate estoppel by acquiescence and without fraud oraffirmative action is fixed by statute where one in adverse possession for a period of seven years claims under color of title and where one claims title only by adverse possession for a period of twenty years. Neither fraud nor affirmative action to the detriment of appellees is pleaded here.

If the County Judge was without jurisdiction to dispose of the homestead property of the decedent, no conduct of any party could confer jurisdiction in that regard.

It may be conceded that the County Judge has jurisdiction of all matters cognizable in probate of estates, but it does not follow that the County Judge has jurisdiction of any property not cognizable in probate. The appellees contend that the probate jurisdiction operates on the res and that the judgments therein are binding on the rem. If this be true, certainly the judgment would be binding only on the rem of which the probate...