Whidden v. Abbott

• Decision Date: 14 May 1936
• Parties: WHIDDEN v. ABBOTT et al.
• Court: Florida Supreme Court

168 So. 253

124 Fla. 293

WHIDDEN v. ABBOTT et al.

Florida Supreme Court, Division B.

May 14, 1936

Suit between Lillie Whidden, as administratrix of the estate of T G. Albritton, deceased, and Vastia Abbott and others. From an adverse decree, the former appeals.

Reversed. Appeal from Circuit Court, Hardee County; W. J Barker, judge.

COUNSEL

W. W Whitehurst, of Wauchula, for appellant.

Leitner & Leitner, of Arcadia, for appellees.

OPINION

BUFORD Justice.

In this case the only question is whether or not the home and lands occupied by T. G. Albritton at the time of his death possessed the character and attributes of a homestead exempt from sale under execution under the provisions of section 1 of article 10 of the Constitution.

The record shows that T. G. Albritton prior to January, 1929, lived with his wife on the homestead belonging to him in Hardee county, Fla. In January, 1929, Mrs. Albritton died. Mr. Albritton and his wife were old people. All of their children had grown up, married and moved away, establishing homes of their own.

The status of the homestead then at the death of Mrs. Albritton was exactly like that which obtained and was under consideration in the case of Herrin et al. v. Brown, 44 Fla. 782, 33 So. 522, 103 Am.St.Rep. 182, in which case this court held that on the death of the wife the former homestead ceased to be exempt to the husband who survived the wife; the death of the wife having occurred after all the children had permanently left the parental roof. Therefore, on authority of the opinion and judgment in that case, the former homestead of T. G. Albritton immediately upon the death of his wife ceased to be exempt from forced sale under provisions of section 1 of article 10 of the Constitution.

The contention in the instant case, however, is that the homestead status was revived because of the fact that several years after the death of Mrs. Albritton a son of Mr. and Mrs. Albritton who had for 17 years been living away from his parents and was the head of a family consisting of a wife and four children, and who was a poor man and earned a meager living by preaching the gospel, moved into the home of his father and continued to live there with his family until the death of the father.

In the case of Johns v. Bowden et al., 68 Fla. 32, 66 So. 155, this court defined what is necessary to constitute the head of a family under the provisions of section 1 of article 10 of our Constitution as follows:

'To constitute a 'head of a family' there must be at least two persons who live together in the relation of one family, and one of them must be 'the head' of that 'family.'

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