Spitzer v. Branning

Decision Date16 November 1938
Citation184 So. 770,135 Fla. 49
PartiesSPITZER v. BRANNING et ux.
CourtFlorida Supreme Court

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. 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.

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 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 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 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 court has jurisdiction.

It, therefore, follows that if the judgment of the probate court purports to bind the rem over which the court is without jurisdiction the judgment is not binding on such rem and is a nullity in that regard. The mere inclusion of the description of property in pleadings or orders probate proceedings cannot confer jurisdiction of the rem.

Section 1 and 2 of Article 10 of our Constitution are as follows:

'Section 1: A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any 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 on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no property shall be exempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.'
'Section 2: The exemptions provided for in section one shall inure to the widow and heirs of the party entitled to such exemption, and shall apply to all debts, except as specified in said section.'

Section 4 of Article X is:

'Nothing in this article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law.'

We hold that the question as to whether or not the County Judge sitting as a court of probate may assume to adjudicate rights in homestead property is inferentially settled by the opinion and judgment of this Court in the case of Mott v. First National Bank of St. Petersburg, 98 Fla. 444, 124 So. 36, where we said [page 37]:

'In respect to estates of decedents, the jurisdiction committed to the county judge is confined to that of a court of probate; that is, for the establishment of wills and the administration...

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21 cases
  • Brown's Estate, In re, 2150
    • United States
    • Florida District Court of Appeals
    • 8 d3 Novembro d3 1961
    ...623. In any event, the mere filing of the claim did not confer jurisdiction upon the county judge's court over the fund, Spitzer v. Branning, 135 Fla. 49, 184 So. 770, nor do we think it altered in any way the nature of appellant's right While the question of jurisdiction was not raised in ......
  • In re Monks' Estate
    • United States
    • Florida Supreme Court
    • 28 d2 Novembro d2 1944
    ...would put at rest petitioner's right to inherit an interest in Samuel E. Doane's estate. An analysis of the facts involved in Spitzer v. Branning, supra, discloses erroneous order entered by the County Judge's Court of Dade County, Florida. The inadvertent order entered gave the widow a chi......
  • Feldman's Estate, In re
    • United States
    • Florida District Court of Appeals
    • 6 d5 Fevereiro d5 1959
    ...directly or indirectly controlled are: Mott v. First National Bank of St. Petersburg, 1929, 98 Fla. 444, 124 So. 36; Spitzer v. Branning, 1938, 135 Fla. 49, 184 So. 770; In re Lawrence's Estate, Fla.1950, 1950, 45 So.2d 344; Zinnser v. Gregory, Fla.1955, 77 So.2d 611; In re Weiss' Estate, F......
  • Burdick v. Burdick
    • United States
    • Florida District Court of Appeals
    • 2 d2 Junho d2 1981
    ...the personal representative had any right of possession nor did the probate court even have jurisdiction over it. Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938); Raulerson v. Peeples, 77 Fla. 207, 81 So. 271 Consequently, the order of the predecessor judge finding the property in ques......
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