OUR
LEGAL CHAMELEON, THE FLORIDA HOMESTEAD EXEMPTION: I-III
HAROLD
B. CROSBY AND GEORGE JOHN MILLER
The Florida homestead exemption is at once the great
bulwark of the individual homeowner and a formidable barrier to creditors and
county and municipal fiscal authorities. To the intending alienor
it is frequently a pitfall, and to many a testator or trustor
it is the fatal rock upon which he is lured by the sirens of full and free
choice in leaving his property. To the general practitioner, however, it is
more often than not a chameleon, which changes color to accord with the
background against which he is viewed.
The same individual, living on the same property, can
enjoy a homestead exemption taxwise and yet find
himself with no exemption from forced sale.1 Conversely, the same individual,
owning a house and grounds, may find that it is free from levy for all debts of
his father, or mother, or both, but that he is nonetheless liable for taxes on
its full assessed valuation.2 He will discover in any event, whether he is
entitled to a tax exemption or nor, that freedom from execution never bars
enforcement of a valid tax judgment. The homestead provisions do not constitute
a law of descent, he is told, yet he dare not plan his estate, or while living
convey his realty, without observing strictly the homestead limitations.3 Their
influence extends even into the fields of federal taxation4 and Florida tax
titles.5
Our chameleon does have form, however, and his alleged
obscurity results in most instances from failure to determine at the outset the
precise background upon which he is resting and to bear constantly in mind that
1E.g. a bachelor residing alone in Florida in
a house that he owns.
2E.g.,
assume father, mother and dependent son residing in the father's house in
Florida. The father dies intestate and leaves the mother as head of the family.
She dies soon afterward; the son goes to live permanently with an uncle and
rents the former family home to tenants.
3Discussed in Part ii infra. We
shall see that as a practical matter the judiciary has gradually converted a
part of the homestead provisions into a law of descent, in spite of reluctance
to admit the metamorphosis.
4Discussed in Part V infra.
5E.g., the
ten-year redemption period granted a homesteader against a Murphy Act purchaser
of a tax sale certificate; FLA. STAT. §192.36 (1941), Golden
v. Grady, 34 So.2d 877 (Fla. 1948) (alternative holding), Stewart v. Powell, 18
Fla. 420, 28 So.2d 879 (1947).
[*13] as he moves rapidly from one setting to another
the same form appears in strikingly different colors. At
times, also, separate and distinct chameleons, one of one size and one of
another, perch on a single object. Thanks to the early draftsmen in this
field, who, if they did not write too well, at least refrained from writing too
much, and to a Supreme Court that for decades has shown a high degree of sound
common sense and logical consistency in the interpretation of most of the
homestead provisions, there exist today definite contours that remain distinguishable
amid the camouflage of varying factual situations.
Without purporting to anticipate every conceivable
question that might be asked, this article does attempt to delineate the main
principles. The sharpest conceptual distinction falls between exemption from
forced sale and exemption from taxation; accordingly, Part V of this article
deals with the latter. Part I analyzes the steps required for ascertaining the
existence of the exemption of homestead realty from forced sale; Part II covers
the inurement of this exemption and its influence on
the transfer of homestead realty; Part III explains the difference between the
realty and personalty exemptions from the standpoint
of both forced sale and transfer; and Part IV takes up the procedural aspects
of securing exemption, including the troublesome problem of jurisdiction.6
ORIGIN
AND PURPOSE
Great though our debt is to the common law, the
homestead and the extensive body of law that has developed around it are
distinctly American. Although the so-called homestead tax exemption as applied
to a portion of the assessed valuation of realty is nothing more than a mere
residence exclusion,7 having no legal connection with
family headship and confined to only a few states,8 the true homestead
exemption from forced sale is a
6For convenience the current homestead
provisions of the Constitution of the State of Florida are quoted in full at
the end of Part III of this article, of which Parts I, II and III are included
in this issue. Parts IV and V will follow in the next issue. Footnotes are
numbered consecutively throughout the entire article, in the Interests, of
clarity and consistency.
7For the term "residence exclusion"
the authors are indebted to a former student, Louis W. Wallace, now of the
Tampa bar. The tabulation of the laws of other states has been made possible by
the research of Mandell Glicksberg,
Irvin P. Golden and Mallory E. Home, of the research staff of U. of Fla. L.
Rev.
8Less than one fourth of the states, including
Florida, permit this exemption; one of these limits it to veterans, while two
confine it to state taxes only. Discussion appears in Part V infra.
[*14] fundamental part of the law in all but four
states and the District of Columbia.9 In Florida it was introduced in 1868 and
has remained with us ever since.10 The Florida provisions are worded in a
manner all their own, and for this reason judicial constructions in other
jurisdictions are not of great assistance;11 but in
any event a sizable body of Florida statutory and judicial material exists
today, supplementing and expounding Article X of our Constitution.
The basic philosophy underlying the exemptions of both
homestead realty and homestead personalty from forced
sale, and the canons of construction governing interpretation of its
constitutional and statutory formulation, were early and well set forth. In the
words of Mr. Chief Justice Browne:12
"Their obvious purpose is to secure to
each family a home and means of livelihood, irrespective of financial
misfortune, and beyond the reach of creditors; security of the State from the
burden of pau-
9Delaware, Maryland, Pennsylvania and Rhode
Island allow no exemption of the homestead from forced sale. Indiana, like
Florida, provides an exclusion for resident
householders, but the amount is $700 only. Of the states authorizing this
exemption, over half limit it to $2,500 or less. Florida has no valuation limit
on property so exempted.
10The so-called exemption actually comprises
several exemptions. The original protection against forced sale was embodied in
the three sections of Article IX of the Florida Constitution of 1868. In the
Constitution of 1885, adopted by the Convention held in that year and effective
January 1, 1887, these provisions were perpetuated, as well as expanded in some
respects, in the then six sections of Article X, which is the organic law of
today. The 1868 Section 2, which created an additional exemption of $1,000 in
any of his property that the head of a family residing in Florida might select,
was dropped. The new Section 2 stated that the exemptions in Section 1 should
"inure to the widow and heirs," in lieu of the 1868 provision that
these should merely "accrue to the heirs. .
."
On November 6, 1934, the basis of Section 7 of
Article X, establishing what is generally known as the homestead tax exemption,
was added by amendment; and in 1938, by further amendment, Section 7 in its
present form was adopted, the exemption to apply "for the year 1939 and
thereafter." The statutory material supplementing the organic law of
homesteads is collected chiefly in FLA. STAT., cc. 222
(method of setting apart), 731 (descent), 192, 200 (tax) (1941), as amended and
brought up to date periodically.
11This was recognized in the early days of
Florida homestead law. See, e.g., Smith v. Guckenheimer
& Sons, 42 Fla. 1, 12, 36, 27 So. 900, 914, 911 (1900); McDougall v. Meginniss,
21 Fla. 362, 369-372 (1885).
12West Florida Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 229,
77 So. 209, 212 (1917), quoting Hines v. Duncan, 79
Ala. 112, 114-115 (1885).
[*15] -perism, and o
the individual citizen from destitution. Such statutes are
entitled to a liberal construction. . .
Again, as Mr. Chief Justice Buford aptly phrased it:13
"The purpose of the exemption laws is to
prevent the unfortunate citizen, from being deprived of the necessaries of life
and to preserve for him and his family certain things reasonably necessary to
enable him to earn a livelihood and where his livelihood is produced by his
personal labor and services to so protect him and his family that such earnings
may not be taken from them and they be left destitute and a charge upon
charity."
Mr. Chief Justice Randall, speaking of similar
provisions in the Constitution of 1868, said:14
"The object of exemption laws is to protect
people of limited means and their families in the enjoyment of so much property
as may be necessary to prevent absolute pauperism and want, and against the
consequence of ill advised promises which their lack of judgment and discretion
may have led them t make, or which they may have been induced to enter into by
the persuasion of others."
He distinguished as follows the lien of a mortgage
upon specified property from a blanket waiver:15
"Few men would mortgage their household
goods and their children's clothes to a hard creditor with the inevitable
result brought vividly to their understanding, but many thoughtless and
improvident people might be induced to obtain credit by merely 'waiving the
benefit of exemption,' and thus placing the last blanket and bed and their own
and the children's clothing at the mercy of a hard creditor, if an agreement
like this should be sustained."
A further caveat was succinctly expressed by
Mr. Chief Justice Whitfield in Milton v. Milton: 16
13Patten Package Co. v. Houser, 102 Fla. 603,
606, 136 So. 353, 355 (1931).
14Carters Adm'rs v.
Carter, 20 Fla. 558, 569 (1884); cf. Patterson v. Taylor, 15 Fla. 336, 345-347
(1875).
15Carters Adm'rs v. Carter, 20 Fla. 558, 570 (1884).
16 63 Fla. 533, 536, 58 So. 718, 719 (1912).
[*16] "Organic and statutory provisions
relating to homestead exemptions should be 'liberally construed in the interest
of the family home. But the law should not be so applied as to make it an
instrument of fraud or imposition upon creditors."
A word of explanation is due at this point. The
important factor, in borderline situations involving either creation or
abandonment of a homestead or debts possibly constituting exceptions to the
exemption, is the intent of the homesteader. In the eye of the law, acquisition
of homestead status deprives a creditor of nothing; he is presumed to know what
the law authorizes, and should insist on a mortgage if in doubt as to the
reliability of his debtor.17 The mere existence of a strong motive, whether it
be the desire to obtain credit by holding out as non-homestead property a lot
that the debtor intends at the time to occupy later as his residence, or the
instinctive urge of a debtor to avoid levy by unsecured creditors if
possible,18 or the natural determination of an intending alienor
to avoid restraints arising by virtue of the homestead character of his
property,19 is beside the mark provided there be shown of record the overt acts
and the intent requisite to the creation or continuance of a home and a
position as head of the family, or the contrary in the case of the intending alienor.
Such a motive is material, however, in reaching a
decision as to the true intent of the claimant and the actual existence, at the
precise time involved, of those factors essential to the creation or
continuance of a homestead exemption, such as ownership of the property in
question, residence thereon, headship of the family, a debt that is not within
the classes excepted from the protection against forced sale, and absence of any
equitable lien. This is amply demonstrated by an examination of what the
Supreme Court of Florida and the local federal courts have done in
17Heddon v. Jones, 115 Fla. 19, 154 So. 891 (1934); Rigby v. Middlebrooks, 102 Fla. 148, 135 So. 563 (1931) ; see Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938),
and opinions from other jurisdictions quoted with approval therein by a
unanimous court.
18Heddon v. Jones, 115 Fla. 19, 154 So. 891 (1934) (exemption upheld although property was
occupied to prevent attachment of judgment lien of creditor who had been led to
regard this land as possible asset in event of default) ;
contrast Read v. Leitner, 80 Fla. 574, 86 So. 425
(1920) (dubious claim to exemption sustained), with Murphy v. Farquhar, 39 Fla.
350, 22 So. 681 (1897) (abandonment
of homestead found as a fact, primarily because of attempted conveyance to wife
as insulation against creditors).
19Menendez v. Rodriguez, 106
Fla. 14 143 So. 223 (1932).
[*17] practice in close cases of various types;20 in these is found the true significance of the statement
that the homestead provisions are not to be used as a cloak for fraud and
deceit.
A homestead is popularly conceived as a piece of
realty or a slice of personalty; but once this has
been said the less the notion is pursued, the better. In the first place, the
homestead may be a mere interest in realty. More important still, to the
Florida resident -- and therefore to his attorney -- the significant factor is
the homestead exemption. This exemption provides freedom from a particular type
of legal process, or of taxation, or of both, accorded to particular legal
types of individuals, owning realty within particular dimensions in particular
localities or personalty within a particular assessed
valuation, or both, under particular sets of conditions, at particular times,
as regards particular kinds of debts, and with mandatory provisions for descent
of the exemption -- not the property -- to particular classes of persons.21 To
arrive at a meaning, or rather at the several meanings, of the term homestead
exemption, each of the above components must be analyzed individually.
PART
I -- EXEMPTION OF HOMESTEAD REALTY FROM FORCED SALE
The steps in ascertaining the existence of the
homestead realty exemption22 are these:
1. Is the obligation upon which the attempted forced
sale is predicated one that gives rise to any exemption?
2. If so, was the obligor the head of a family?
20E.g., Croker v. Croker, Si F.2d ii (C.
C. A. 5th 1931); In re David, 54 F.2d 140 (S. D. Fla. 1931); Parrish v. Robbirds, 146 Fla. .324, 200 So. 925 (1941); Bishop v. First Old State
Bank, 142 Fla. 190, 194 So. 488 (1940); LaMar v. Lechilder, 135 Fla. 703,
185 So. 833 (1939); First Nat. Bank of Chipley
v. Peel, 107 Fla. 413,-145 So. 177
(1932); Bess v. Anderson, 102 Fla. 1127, 136 So. 898 (1931); Church v. Le?, 102 Fla. 478, 136 So. 242 (1931) ;
Anderson Mill and Lumber Co. v. Clements, 101 Fla. 523, 134 So_ 588 (1931);
Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); Semple v. Semple, 82 Fla. 138, 89
So. 638 (1921); Rawlins v. Dade Lumber Co., 80 Fla.
398, 86 So. 334 (1920); Pasco v. Harley, 73 Fla.
819,75 So. 30 (1917); C. . WiLt Co. v. Moody, 72 Fla. 459, 73
So. 582 (1916); Florida Loan & Trust Co. v. Crabb, 45 Fla. 306, 33 So. 523 (1903) ; Drucker v. Rosenstein, 19 Fla.
191 (1882).
21Descent of the exemption and descent of the
homestead realty itself have been confused in several of the opinions; see Part
II, 3 infra.
22Throughout Parts I and It
the term "exemption," unless otherwise specifically stated, is
confined to the exemption from forced sale of homestead realty. In Part III it
is limited to the exemption from forced sale of homestead
personalty.
[*18] 3. Did he reside in
Florida on the property claimed as exempt?
4. Did he own any estate in such property?
5. Were these factors all in existence at the material
time, and what is the physical extent of the property to which the exemption
applies?
1. The Underlying Obligation
This
problem is posed first, because if the underlying obligation be
such that it does not fall within the exemption, the final decision can be
reached immediately; forced sale is not forbidden. Article X, Section 1, of the
Florida Constitution provides:
no property shall be exempt from sale for taxes or
assessments or for the erection or repair of improvements on the real estate
exempted, or for house, field or other labor performed on the same."
Taxes
and Assessments.
The matter of taxes and assessments offers little difficulty, inasmuch as the
term "taxes" here embraces any tax validly levied and does not
contemplate the problem of what can be taxed and to what extent. The wording of
Section 1 of Article X raises a doubt as to whether the taxes under
consideration embrace all taxes or merely those levied against the homestead
property itself. The question was left unanswered by the Supreme Court in
Florida Industrial Commission v. Coleman,23 although
the chancellor took the latter position below. In any event, Section 1 is in no
way modified by Section 7, which, broadly speaking, excludes from all
"taxation," other than assessments for special benefits, a certain
amount of the assessed valuation of the realty owned and used as a home by any
Florida resident, even though he or she resides alone. Nor is it affected by
the exclusion of $500 of personalty from the taxable
base of the head of a family residing in Florida.24 Whenever these limits are
passed, the excess is subject to taxation; and forced sale of the homestead
will follow unless such tax be paid. Assessments for special benefits apply to
homestead and privately owned non-homestead property alike, and forced sale can
always be used to collect them.
Purchase
Obligations. The exception of purchase obligations is not so clear. While its
basis is the obviously fair principle that one cannot, in
23
154 Fla. 744, 18 So.2d 905 (1944). That chancellor is now Mr. Justice Barns. The decree
involved personalty and was affirmed on appeal,
though on statutory grounds. The cogent reasoning in the decree, which is
quoted in the opinion, is believed to express the sound view.
24FLA.
CONST. Art. IX, §11.
[*19]
the very acquisition of the homestead, secure it in practical effect free from
liability for payment, the removal of this type of obligation from the exempted
class is strictly construed against the creditor.25 Purchase-money means money
directly used in purchasing, and does not extend to refinancing operations
after purchase. This issue arose specificaly in
Wilhelm v. Locklar,26 in which the homesteader
borrowed cash from a friend, giving his unsecured note in return, and used the
cash to pay off at a discount a note originally delivered to cover a part of
the purchase price of his homestead. The Supreme Court refused to allow
execution against the homestead on the second note, although conceding that
payment of the first note could have been so enforced. The following statement
of principle was quoted with approval from Lewton v.
Hower,27 in which a general commingled claim "for
work and labor and money expended" in improving the homestead land was
denied enforcement by levy thereon:
"An
indebtedness for money borrowed to purchase materials, or to pay for labor
bestowed in improving lands, or money expended in the purchase of such
materials, or in payment for such labor, is not an obligation contracted 'for
the erection of improvements,' nor an obligation contracted for such labor, and
is not within the exceptions of the constitutional provisions. The contract in
such case is to repay money loaned or expended, and not a contract to pay for
the erection of improvements, or for labor on the 'premises.
"The
purpose of the exception of 'obligations contracted for the erection of
improvements' and for 'labor performed on the same,' so that a homestead is
liable for such debts, though not for debts generally, is that those who have
furnished the materials and performed the labor may have their remedy upon the
property they have in part created and enhanced by the bestowal of their labor
and property, and in the absence of any provision giving the lender of moneys,
which have been expended upon the property, the benefit of the exception, the
courts are powerless to extend it to them."
The
purchase money, once advanced, need not be used immediately, however. An
elderly woman advanced funds to a young Polish immigrant in New York over a
period of years, and also served as his housekeeper,
25Citizens
State Bank v. Jones, 100 Fla. 1492, 149ö, 131 So. 369,
31 (1930), and cases there cited.
26 46 Fla. 575, 35 So. 6 (1903).
27 18 Fla. 872, 882 (1882).
[*20]
under an agreement that he would support her when she became too old to work.28
They moved to Florida, where his business, a tourist camp outside Tampa in
which they both resided, was acquired with funds obtained in substantial
measure from her, and was maintained through their joint efforts. He later
acquired a young wife and an aversion to his elderly benefactor. The Court
upheld an equitable lien on his rural homestead in the amount of purchase funds
advanced and value of services rendered by Mrs. Sonneman.
The use of her funds in acquiring his homestead was "reasonably inferred
from the testimony adduced ."159 The specific
advances of cash occurred prior to the purchase of the tourist camp, while the
services were rendered both before and after this date. These two sources of
obligation, however, are placed together in the Florida Constitution as
exceptions not confronted with the barrier of homestead exemption.
The
obligation incurred in purchasing a homestead need not be based on money alone.
In Porter v. Teate30 the consideration given by Porter in acquiring from Teate 400 acres in Florida was a conveyance to Teate of certain Georgia lands, with full covenants. The
title to the Georgia property failed, and Teate
obtained judgment in Florida against Porter for breach of the covenants. When Teate bought Porter's 400 acres at execution sale, Porter
claimed that 160 acres were exempt as his homestead. The claim was summarily
rejected, not only as regards Porter but also as to the third party who had
purchased this tract from him for value but with notice. The decision is
logical as well as fair; the consideration agreed to as the purchase price was
never furnished.
Labor.
Obligations arising out of labor performed on the homestead, or out of the erection
of improvements on the real estate, or out of repairs made to such
improvements, present no serious problems. Indeed, the dearth of cases on these
points indicates that the law is well understood. Payment for materials used in
constructing or repairing improvements is of course obligatory,31 as is payment for labor; but enforcement of repay-
28Sonneman
v. Tuszynski, 139 Fla. 824, 191 So.
18 (1939).
29Id.
at 830, 191 So. at 20.
30 17 Fla. 813 (1880).
31In
Gidderis v. Dickenson, 60 Fla. 320, 53 So. 929 (1910), a carpenter purchased materials on credit,
used these to construct a building, then claimed as against the suppliers a
homestead personalty exemption of $1,000 out of the
money owed him by the owner of the building. His claim was rejected on the
purchase-money theory; his $1,000 of personalty
was in fact created by his obtaining and using the materials.
[*21] ment of funds used for such payment runs afoul of the rule
in Lewton v. Rower32
Nearly a
quarter of a century ago, however, our Supreme Court nipped in the bud any fond
notion that it was gong to let this rule get out of hand. The president of a
corporation facing bankruptcy fraudulently used over $500 of its cash to effect
substantial repairs to his house; and its trustee in bankruptcy, suing to
recover this sum, was met by the claim of homestead exemption.33 This answer
was summarily brushed aside on the ground that this chicanery was no mere
contract of loan; as a matter of equity the corporation was deemed to have
furnished the materials and labor, in view of its ignorance of the financial
transaction.
Partnership
Obligations. Our chameleon adopts a different hue when he pauses in the
partnership field. In a well-considered dictum an early opinion established in
Florida the principle that partnership assets cannot be claimed by an
individual partner as his homestead property prior to dissolution.34 In a later
case Joseph Platt purchased the entire interest of his brother in their general
merchandising business, a co-partnership, in consideration of the payment of
$490 to his brother and the assumption of all of the partnership liabilities.35
Joseph paid the $490, but was unable to meet all the liabilities. His brother
thereupon requested a receiver of the stock of merchandise remaining in Joseph's
hands, as well as a declaration subjecting these assets to liability for
partnership debts. Joseph claimed $1,000 of such assets as his homestead
exemption. Final decree in favor of his brother was affirmed on the ground that
'the assumption of the partnership liabilities was an integral part of the
purchase price of the brother's interest.
This
reasoning applies a fortiori against: the owner of the home in which the
materials are used; e.g., Anderson Mill and Lumber Co. v. Clernents,
101 Fla. 523, 134 So. 588 (1931);
Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925).
Mere chicken-feed, insecticides, tonics and similar merchandise, however,
furnished on credit to a homesteader engaged in the poultry business, are not
materials used in the erection or repair of improvements, nor do they
constitute labor. Lamb v. Ralston Purina Co., 155 Fla..
638, 21 So.2d 127 (1945).
32 18 Fla. 872 (1882), discussed at p. 19, supra.
33Jones
v. Carpenter, 90 Fla. 407, 106 So. 127
(1925).
34See
Peck v. Bowden, 18 Fla. 17, 19-21 (1881).
35Platt
v. Platt, SO Fla. 594, 39 So. 536
(1905). Although this case involves the personalty
exemption, the principle applies to the realty exemption as well.
[*22]
The same reasoning was applied more recently by a federal court in meeting the
same type of claim.36 The partners had dissolved their partnership and
partitioned its assets, the consideration from each being assumption of his pro
rata share of the liabilities. Each partner then raised the bar of homestead
exemption. The maneuver failed.
Lee v.
Bradley Fertilizer Co.,37 in which exemption was
accorded assets of individuals obtained upon dissolution of their partnership
during its insolvency but before judgment against it, does not lessen the force
of the foregoing decisions. Counsel for plaintiff, the corporation, committed
the tactical error of setting down the matter for hearing on his bill and the
amended answer without replication and short of the time allowed for taking
testimony, thereby admitting the Lee brothers' allegations of dissolution in
good faith based on delivery of valid consideration. The maxim lex nemini operatur
iniquum was applied, and both the partition and the
subsequent acquisition of homestead exemption were accordingly upheld. The
decision should not be construed, however, as authority for any substantive
rule condoning dissolution and distribution of partnership assets in fraud of
creditors.
Growing
Crops. Shifting to a somewhat different setting, with our chameleon sitting
first on a cotton boll38 and then on a grapefruit39 grown by a tenant, still
another concept appears. Growing crops, whether regarded as fructies
naturales or fructus industriales, are a part of the realty
unless expressly reserved as between the parties, and accordingly annot be claimed by the tenant against his landlord as
exempt homestead property.
Prior
Liens. Once again, our chameleon seems to scamper off -- in any event, he
cannot be found -- when confronted with the prior lien of a validly executed
mortgage of either specific realty or specific personalty,
or with the prior lien of a judgment at law or a decree in equity, or with a statu-
36In re David, 54 F.2d 140 (S. D. Fla. 1931).
37 44 Fla. 787, 33 So. 456 (1902).
38Hodges
v. Cooksey, 33 Fla. 715, 15 So. 549
(1894); Cathcart v. Turner, 18 Fla. 837 (1882) (both
cases relating to levy by creditors).
39Adams v. Adams, 158 Fla. 173, 28 So.2d 254 (1946). Fruit on the tree was declared homestead realty for
purpose of descent. The opinion limited Gentile Bros.,
Inc. v. Bryan, 101 Fla. 233, 133 So. 630 (1931), strictly to the decision that homestead fruit, as distinct from the trees, can be mortgaged by
the husband alone as personalty to secure payment for
fertilizer, spray and insecticides furnished to produce and protect it.
[*23]
-tory lien attaching in spite of the protection of
the homestead exemption.
Analysis of these matters is pursued in connection with the problem of the
material time and also in the discussion of personalty.40 As will be shown, the
chameleon does not really run away; there was nothing that he could crawl upon
in the first place.
Homesteader-Debtor.
Finally, a general word of caution regarding the debt itself does not come
amiss. Our chameleon always perches on a property interest, but his parents are
a homesteader and a debt. Neither alone can give birth to him. To ascertain who
owes the debt is just as important as to decide who
owns the property. It is basic that the debtor must be a homesteader; otherwise
no exemption can possibly arise. This rule causes no confusion during the
homesteader's life, because at this stage the elementary principle that the
property of one person is not subject to execution in discharging the debt of
another is easily applied.
When the
homesteader dies and the exemption inures to his widow, however, the picture
sometimes becomes blurred. Assuming no lineal descendants, the entire homestead
property passes to her under the law of descent41 and the exemption still
clings to it as regards the debts of her husband,42
even though he is no longer in existence. But this exemption does not embrace
her debts.43 The property that constituted his
homestead is now hers, with the chameleon resting permanently on it; but it is
not necessarily her homestead. To free it from subjection to forced sale for
her debts a new and different chameleon must be created for her, albeit as to
the same property, by her becoming in turn the head of a family residing in
Florida.44 The question asked about him at the moment he
40See
Part I, 5 infra and Part III infra.
41FLA.
STAT. §731.27, 731.23 (Cum. Supp. 1947), discussed in Part II infra. For a
clear analysis of the principle that homestead property passes pursuant to the
statutes governing descent and does not constitute a separate estate created by
Article X of the Florida Constitution, see the classic opinion of Taylor, C.
J., in Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897),
recently cited as the controlling authority in Nesmith v. Nesmith, 155 Fla.
823, 21 So.2d 789 (1945).
42FLA.
CONST. Art. X. §2, Raulerson v. Peeples,
77 Fla. 207, 81 So. 271 (1919).
43See,
e.g., the opinion of Whitfield, J., on rehearing in Seashole
v. O'Shields, 139 Fla. 839, 844, 191 So. 74, 76 (1939).
44E.g., Cowdery v. Herring, 106
Fla. 567, 143 So. 433 (1932); cf. DeCottes v. CIa.rkson, 43 Fla. 1, 29 So. 442 (1901), applying the same
reasoning to the problem of devise and descent; see Menendea
v. Rodriguez, 106 Fla. 214, 222, 143 So. 223, 226 (1932). A sound analysis of the underlying theory
by Brown, J., appears in Moore v. Price, 98 Fla. 276, 285, 123 So. 78, 771 (1929).
[*24]
dies must accordingly be asked again about her as regards her debts. If she
later dies as the head of a family the principles of analysis remain the same,
but the ultimate result to children receiving his property and hers may be
several chameleons at once.45
2. The Head of a Family
Much of
the homestead litigation has centered on the meaning of family headship. The
decisions, though numerous, disclose two basic tests, which may be met together
or in the alternative: (I) the legal duty to maintain arising out of the family
relationship at law, and (2) continuing communal living by at least two
individuals under such circumstances that one is recognized as the person in
charge. Stated broadly, there must be a family at law, or a family in fact, or
both.
In the
normal situation of man and wife living together, with or without children, the
issue has proved too simple to provoke litigation.40 Conversely, divorce of
husband from wife, with no dependents in the home, obviously eliminates family
headship, there being no family in fact or at law. Even so, however, the
inevitable close questions have at times arisen; and the opinions dealing with
them are worth analysis.
Mere
physical separation of husband and wife by reason of age and financial
difficulties does not abolish the family relationship. A homesteader, as he
passed eighty, became too old and feeble to care for himself, whereupon his
younger and resourceful wife took boarders into his home and paid a third party
to care for him properly elsewhere.47 The principle involved in the decision,
which reversed the dismissal of a bill praying that the executor under the old
gentleman's will be enjoined from taking possession of his home, is succinctly
set forth in the following passage from the opinion of Mr. Justice Whitfield:48
"The
homestead was the means of support for both the husband and the wife and the
living apart was for mutual welfare, one remaining on the homestead and
supporting the other from earnings made on and by the use of the homestead
property, which was maintained as
45A complicated example of shifting interests in
property accompanied by changes in family headship is ably analyzed by Ellis, 3., in Hill v. First Nat. Bank of Mariauna, 73 Fla. 1092, 75 So. 614
(1917).
46Miller
v. Finegan, 26 Fla. 29, 7 So.
140 (1890).
47Nelson
v. Hainlin, 89 Fla. 356, 104 So.
589 (1925).
48Id.
at 359, 104 So. 590.
[*25]
a home on which the wife lived and to which the husband went as he was disposed
and able to do in his enfeebled condition during the last few years of his
life, there being amicable relations between the husband and wife at all
times."
One
might assume that whenever the husband supports the wife on her property the
same reasoning applies. The situation is not analogous, however, perhaps
because sex rears its lovely head. Her separate property is not his, of course,
and accordingly it cannot be his homestead.49 But unless she supports the
family he is the head; and the fact that the home is on her property,50 or that he uses her property to support himself and
her,51 does not alter his status as the head of the family. In a case directly
in point,52 the wife had obtained the property from
her father, and her husband had no equitable interest in it; accordingly the
claim of homestead was rejected. The absence of any equitable interest on his
part in this type of case is important; if he purchases the property and gives
her the legal title, his equitable ownership provides a background on which the
homestead chameleon can rest.53
Nevertheless,
a woman can be the head of a family for purposes of law, provided the facts
substantiate her claim. A widow with dependent children, whether they be
adults54 or minors,55 and a wife supporting an
incapacitated husband,56 are definitely in such a position. Furthermore, a
widower who rears his granddaughter in his home at his own expense, after her
mother dies and her father moves away, from the grandfather's home, is the head
of a family, even though he never formally adopts her.57
49Nelson v. Frmklhi, 152
Fla. 694, 12 So.2d 771 (1943).
50Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 188 So. 804 (1939). It is obvious that the rather significant word
"not" has been erroneously omitted in printing line 1 of 138 Fla. at
67 and line 13 of 188 So. at
805.
51C.
B. Witt Co. v. Moody, 72 Fla. 459, 73 So. $82 (1916).
52See
note 49 supra.
53Bessemer
Properties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946).
54Hillsborough
Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943) ;
Davis v. Miami Beach Bank & Trust Co., 99 Fla. 1282, 128 So. 817 (1930); Caro v. Caro,
45 Fla. 203, 34 So. 309 (1903).
55Jetton
Lumber Co. v. IM, 67 Fla. 61, 64 So. 440 (1914) ; cf. Matthews v. Jeacle. 61 Fla. 686, 55 So. 865 (1911); see Jones v. Federal Farm
Mtg. Corp., 138 Fla. 65, 66, 188 So. 804, 805 (1939).
56Bige!ow
v. Dunphe, 143 Fla. 603, 197 So.
328, rehearing denied, 144 Fla. 330, 198 So. 13 (1940).
57Adams v. Clark, 48 Fla. 205,37 So. 734 (1904).
[*26]
The same result follows as regards a grandmother supporting her grandchildren
in her home.58 Indeed, even a single man supporting his mother and the children
of a deceased sister in his home is the head of the am59
Still
greater complications have arisen in connection with alleged families consisting
of one elderly parent and an adult child living in the parent's home. Again,
the influence of sex has left its mark. In DeCottes
v. Clarkson,60 early in the development of Florida
homestead law, it was settled that factual dependency is not the sole legal
test of family headship, that children living at home need not be minors or
invalids to sustain a claim of headship on the part of their parent, and that a
healthy adult female could be a dependent of her elderly mother even though she
rendered substantial service in the household. Promptly thereafter this
reasoning was slightly extended to uphold the family headship claim of Mrs.
Caro,61 two of whose daughters, Georgia and Florida,
acted as nurse, housekeeper and business manager, and earned all except their
board by taking in sewing. Both were of age. But they lived in her home and
accordingly were members of her family.
Whidden v. Abbott62 raised a similar issue as regards a son,
an impoverished preacher of the gospel with a wife and four children. Upon the
death of his mother he returned to live with his father in the family home
after an absence of seventeen years. Although he testified that he considered
his father the head of the family, the Supreme Court found a mere
"arrangement for the mutual benefit of all parties concerned";63 the father's claim of homestead was rejected. Within a
few months this principle was applied in Dania Bank v. Wilson & Toomer Fertilizer Co.64 The allegation of the father that
be ran the business in which he and his son were engaged, as distinct from the
home, was quite properly brushed aside as immaterial. The Supreme Court, in
directing reversal of a decree exempting the alleged homestead from levy,
emphasized the lack of "clear and convincing evidence" that the son
had "abdicated the position as head of the family which the law cast upon
him,"65 even though all of the individuals concerned lived in his father's
home.
78EM
v. First Nat. Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917).
79Ibid.
80 43 Fla. 1, 29 So. 442 (1901).
81Caro
v. Caro, 45 Fla. 203, 34 So.
309 (1903).
82124 Fla. 293, 168 So. 253 (1936). 821d, at 295,
168 So. at 254. 84127 Fla. 45, 172 So. 476 (1937).
621d. at 52, 172 So. at 480.
[*27]
Some two years later, however, the, opposite conclusion was reached in
Cumberland & Liberty Mills v. Keggin.66 The vital distinction was said to
lie in the fact that the son brought his wife to his father's home, in which he
was already living when he married her, and in which they both remained until
the father's death. This time the emphasis was placed on "the absence of a
showing that the father and the married son did not regard the son and his
family, while they lived on the father's homestead with him, as being of the
family of the father. . ."67
The
lines of reasoning in the Dani Bank and Cumberland
cases are difficult to reconcile. Mere continuity of residence with the father
is indeed a slender reed.68 The gist of the problem in every instance is not
whether the owner of the property was formerly the head of a family, or whether
he may perhaps become one later, but simply whether he is the bead of a family
at the time a lien attaches, or upon his death, as the case may be. In the
Dania Bank case, the son's headship of his own family was presumed in the absence
of convincing evidence to the contrary. Yet in the Cumberland case the
presumption was just the opposite. With the authorities in this unhappy state,
the principle of law applicable in borderline cases involving a determination
of headship as between an adult male child, as distinct from a female, and an
elderly parent, is anybody's guess. In its other aspects, however, the law as
to headship is reasonably clear.
One
further case should be mentioned in this connection.69 A dutiful son acquired
title to certain property while judgments were outstanding against him, after
having supported his dependent parents on a separate parcel of property for
several years. Subsequently he married. His claim of
homestead was denied by a divided court. Although one may feel reluctant
to approve the decision, it does follow the law. His marriage could not operate
to defeat an existing lien. The obligation to support his parents was moral,
not legal. And since he did not live with them, there was no family in fact.
66 139 Fla. 133, 190 So. 492 (1939).
67Id.
at 136, 190 So. at 493.
68The
absence of any evidence pointing to abandonment of his position as head of his
own family by a son returning to live with and care for his aged and infirm
mother, upon the death of her husband, was mentioned in Shambow
v. Shambow, 153 Fla. 760, 15 So.2d 836 (1943) ; the facts obviously warranted the chancellor's finding
that the mother was not the family head. Probably it is significant that this
case involved a son rather than a daughter.
69Morebead
v. Yongue, 134 Fla. 135, 183 So.
804 (1938) (two justices dissenting).
[*28]
The problem of dispersal of the family is but another aspect of the preceding
discussion. The principle in itself is simple: no family, no head. That there
once was a family is immaterial. The homestead provisions are designed to
protect the family, not the aged. Regardless of how harsh the policy may seem,
the law insists that an elderly parent, when left alone at the end of his span,
is no longer entitled to the homestead exemption. Perhaps filial affection may
effectively counteract the callous philosophy that an aged parent has served
his purpose and is expendable, but the homestead provisions are of no
assistance on this score. The issue was clearly raised and settled with
finality at the turn of the century in Herrin v. Brown.70
Legal
separation of husband and wife, either when childless or after departure of
their children to establish homes of their own, destroys the family.71 A question that might at first blush appear difficult is
presented by divorce resulting in award of custody of the minor child to the
mother. The family is dispersed in fact, yet the father nevertheless remains
under a duty at law to support the child. The matter has been unanimously and
logically decided; the father is still the head of the family for homestead
purposes.72
In
instances of desertion the line is a thin one, but it has nonetheless been ably
drawn. The husband retains his family headship even though the wife leaves him
for reasons of cruelty and with her small daughter remains absent for ten
years, provided she does not establish a domicile elsewhere and is privileged
to return home at will. If, however, the wife leaves her husband with an
expressed intent not to return, removes to another city with her belongings,
and engages counsel to procure a divorce, the family relationship is terminated
in the absence of dependent children, and she cannot claim his property under
the law of homestead.74 The Supreme Court noted the "dearth of
evidence" in the record to sub-
70 44 Fla. 782, 33 So. 522 (1902) (father left alone) ;
accord, Matthews v. Jeacle, 61 Fla. 686, 55 So. 865
(1911) (mother left alone); Jordan v. Jordan, 100 Fla. 1586, 132 So. 466 (1931) (both left alone upon their
separation after departure of adult children).
71Miller v. West Palm Beach AU. Nat. Bank, 142 Fla. 22, 194 So.
230 (1940); Jordan v. Jordan, supra note 70. In the Miller case even a
subsequent reconciliation. following several months of
living apart was held not to abrogate an executed contract, specifically a
settlement by deed of property formerly homestead, executed by the husband
alone to his wife.
72Osceola
Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929).
73O'Neal
v. Miller, 143 Fla. 171, 196 So. 478
(1940).
74Barlow v. Barlow, 156 Ea. 458, 23 So.2d 723 (1945).
[*29] -stantiate the "cruel treatment" alleged by her in
this case.75 Whether the decision be based on her establishment of a separate
domicile or on reasoning similar to that which evoked the time-honored Statute
of Westminister II76 penalizing an adulterous and
deserting wife with loss of all dower rights, the conclusion is not illogical
and is obviously sound as a matter of policy.
Desertion
by the husband does not render his wife the head of a family unless she
supports dependents residing with her.77 Does he remain the head of the family,
however? If he establishes his domicile outside Florida, he is ipso facto no
longer a resident, of course. And if he sets up his residence elsewhere within
Florida, he cannot claim his former residence. Furthermore, during whatever
time he lives apart he has no family in fact. The duty to support any children
he may have remains, nevertheless, and so does his duty to maintain his wife
until the chancellor decides otherwise. On principle, and by analogy to Osceola
Fertilizer Co. v. Sauls,78 he should be regarded as
the head of the family if he in fact contributes to the support of any of its
other members.
As a
matter of strict logic the same reasoning would leave him as the head on the
basis of legal duty alone; but, as a means of furthering the protection of the
family from destitution by granting exemption, the inducement to contribute
after desertion must be weighed against the wholesome deterring effect of
realization on the part of a husband toying with such an idea that the
chameleon rides in his pocket and disappears when he does. Of course, when
there are children and the wife is in fact forced to support them, there is no
valid reason why he should have an exemption in addition to hers; and
furthermore, there cannot be two heads at any one time.79 This
rules out his exemption, it is submitted.
3. Residence in Florida on Property Claimed as Exempt
The mere
establishment of family headship will not alone confer rights of exemption. The
claimant must have a permanent residence, and it
75Id. at 460, 23 So.2d at 724.
76 13 Edw. I, c. 34 (1285); cf. FLA. STAT. §65.08 (Cum. Supp.
1947), proscribing alimony award to adulterous wife, Malby
v. Malby, 142 Fla. 656, 195 So.
601 (1940).
77Contrast In re Hallbauer,
280 Fed. 118 (S.
D. Fla. 1921) (no children) with Jetton Lumber Co. v. Hall, 67 Fla. 61, 64 So. 440 (1914) (children left dependent on
deserted wife).
78See note 72 supra.
79See Johns v. Bowden, 68 Fla. 32, 45, 66 So. 155, 159 (1914).
[*30]
must be in Florida.80 Elementary though this may sound, one must never lose
sight of the concept "home" in "homestead." What
"home" connotes to the layman, the terms "domicile,"
"permanent residence" or "principal residence" denote to
the lawyer.
It is
fundamental that an individual can have only one domicile, or permanent
residence, at any one time-at least for the same purpose within the same
jurisdictions81--and accordingly a decision by the Florida judiciary that his
domicile is at one particular location automatically forecloses every other as
far as the law of Florida is concerned. This determination is a conclusion of
fact, and the relevant factors are those considered in settling the issue of
domicile for any other purpose. Citizenship may well have some slight bearing
on the matter, but it is by no means conclusive.82 Nor
is it prescribed by law.83
Whether
the question be one of residence within or without the State of Florida, or one
of principal or permanent residence as between two or more locations within
Florida, the usual indicia such as the situs of the
claimant for purposes of taxation, his voting precinct, his physical presence
during the major portion of the period involved, his formal declarations and informal
statements, the actual location of his family, his participation in local
politics, his club memberships, the situs of the
major portion of his belongings, his telephone and mailing address, and the
location of his business, his bank account and his safe deposit box, are all
relevant.84
Assuming
the permanent residence of the claimant to be Florida, what of the phrase
"head of a family residing in Florida"?85
Fortunately,
80FLA.
CONST. Art. X, §1, Post v. Bird. ); see, e.g.,
Williamson v. Osenton, 232 U. S. 619, 625 (1914) (per
Holmes, J.) ; In re v. Wurtz, 53 N. Y. 556, 561
(1873).
81
Beale Conflict of Laws 123 (1935 Dorrance's Estate,
115 N. J. Eq. 268, 170
AtI. 601 (Prerog.
Ct. 1934) passim; Dupuy A. 5th
1931).
82Croker v. Croker, 51 F.2d
11 (C.C.A. 5th 1931).
83Citizenship
never has been prescribed in Florida as a prerequisite to homestead exemption
from forced sale. It was specifically included in the 1934 amendment creating
the realty tax exemption, Art. X, §7, 28 Fla. 1, 25, 9 So.
888, 894 (1891). Steuart v. State ex rel. Dolcimascolo, 119 Fla.
117, 161 So. 378 (1935), but it was deleted in the current amendment
adopted in 1938.
84On
the question of the factors considered in establishing domicile,
see the excellent analyses by Hutcheson, Circ. J., in Croker
v. Croker, 51 F.2d 11 (C. C. A. 5th 1931), and by
Chapman, j., in Miller v. Nelson, 35 Sold 288 (Fla. 1948), as well as those in
Smith v. Croom, 7 Fla. 81 (1857), and In re Dorrance's Estate, 115 N. J. Eq. 268, 170
Ad. 601. (Prerog. Ct. 1934), aff'd mem. sub
nom. Dorrance v. Martin, 13 N. J. Misc. 168, 176 AtI. 902 (Sup. Ct. 1935),
116 N. J. L. 362, 184 Atl. 743 (Ct. Err. & App. 1936), cert. denied,, 298 U. S. 678 (1936), rehearing denied, 298 U. S.
692 (1936).
85FLA.
CNST. Art. X, §1.
[*31]
although this expression is hardly a model of linguistic accuracy, confusion
can seldom arise as a practical matter. Normally the permanent residence of a
man's family is his residence, even though some or all of his family may leave
the home temporarily. The absence may be prolonged, but O'Neal v. Miller86
demonstrates that if he is a Florida resident and the family relationship
continues legally, then the homestead requirements are met. Assume, however,
that he resides outside Florida and his family establishes a separate domicile
here. Grammatically, there is a "family residing in Florida,"
although its head is not a resident. It is submitted that on principle he is
not entitled to a homestead exemption as regards his Florida property. If he resides
permanently elsewhere, the house here is not his "home"; either the
permanent residence of the family is his foreign domicile, or there are two
separate domiciles, with the result in either event that the husband himself is
not the head of a family residing in Florida.
4. Ownership of the Estate in Question
Family
headship and Florida residence do not alone establish exemption. The interest
claimed as homestead must be owned by the claimant, or
in other words headship and ownership must be joined in one individual. When
the husband is the head and the property is his, no question arises. The
determination is equally simple when the wife supports him on her property. If
he is old enough, or clever enough, to induce her to support him on his
property, he may still remain the head in the eye of the law; 87 but if he
supports her on her property there can be no homestead exemption, because he is
the bead and yet she is the owner.88 The same reasoning applies as between
parent and chIId.89 The problems involved in partnerships have already been
discussed.90
Since
there can be only one head of a family, it follows as a corollary that there
can be only one homestead per family. It also follows that there may on
occasion be no homestead at all, as we have noted in the preceding paragraph,
even though a family does exist.
86 143 Fla. 171, 196 SO. 478 (1940).
87See
note 47 supra.
88Nelson v. Franklln, 152
Fla. 694, 12 So.2d 771 (1943); C. B. Witt Co. v. Moody, 12 Ma. 459, 73 So. 582 (1916); see Semple v. Semple, 82 Fla. 138,
148, 89 So. 638, 641 (1921).
89See
notes 62, 66, 68, 69 supra.
90See
text supra . 21.
[*32]
Property is, of course, the background on which our homestead chameleon lies,
and accordingly the nature of the property interest is an important
consideration. The meaning of the term "homestead" connoted by the
words "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"91
is misleading without an analysis of the relevant decisions. The mind of a
lawyer naturally turns to fee simple when ownership of land is mentioned. This
is the wrong turn, however, in analyzing the homestead exemption.
The
"homestead" to which the exemption applies is an estate, and this may
be less than the fee simple. It may consist of the equitable or beneficial
ownership of the physical property,92 or an undivided
one-half interest,93 or a one-fourth interest as coparcener,94 or a one-third
interest as tenant in common,95 or mere possession either as licensee96 or
without objection on the part of the legal owner,97 or the equity of redemption
that a deserted wife supporting minor children has in two encumbered business
automobiles abandoned by her absconding husband, an interest in personalty that the Supreme Court found without
describing.98 Mr. Justice Terrell, speaking of realty, recently summarized the
law in his statement that "a homestead exemption extends to any right or
interest the head of a family may hold in land."99
In
addition to the foregoing interests in property, the law of Florida furnishes a
rather unusual perch for our chameleon in the form of an es-
91FLA.
CONST. Art. X, §1 (italics supplied).
92BeaII v. Pinckney, 150 F.2d 467 (C. C. A. 5th 1945);
Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946).
93Morgan
v. Bailey, 90 Fla. 47, 105 So. 143
(1925).
94Milton
v. Milton, 63 Fla. 533, 58 So. 718
(1912).
95Hill
v. First Nat. Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917).
96Anderson
Mill and Lumber Co. v. Clements, 101 Fla. 523, 134 So.
588 (1931). Fr. STAT. §222.05 (1941) authorizes
exemption of a house owned and occupied as one's home though located on
property not owned but merely lawfully possessed.
97FM
v. First Nat. Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917).
98Jetton
Lumber Co. v. Hall, 67 Fla. 61, 64 So. 440 (1914)
(precise type of interest of wife doubtful in view of express refusal to base
decision on title to automobile in wile; with title in husband, her interest is
limited to mere right of possession, since she did not claim on basis of his
family headship but rather on hers); see Pasco v. Harley, 73 Fla. 819, 829, 75
So. 30, 34 (1917).
99Bessemer
Properties, Inc. v. Gamble, 158 Fla. 38, 39, 27 Sold 832, 833 (1946); cf.
Miller v. Finegan, 26 Fla. 29, 7 So. 140 (1890).
[*33] -tate by the entirety.100 Such property cannot be sold to
pay the separate debts of either spouse while they are both living,100 nor does any interest or right of the deceased spouse
remain to be levied upon when '"On the nature in general of the Florida tenancy
by the entirety see Note, 1 U.
or Fr.. L. Rzv. 433 (1948), as well as the helpful summaries by Sibley, Cift. J., in
Sheldon
v. Waters, 168 F.2d 483, 484 (C C. A. 5th 1948), and
by Whitfield, J., in
Newman
v. Equitable Life Assurance Soc'y, 119 Fla. 641, 160
So. 245
(1935), and in
Bailey
v. Smith, 89 Fla. 303, 103 So. 833 (1925). This latter case and Dodson v. National Title Ins. Co., 31
So.2d 402 (Fla. 1947), affirm the possibility of a tenancy by the entirety in personalty as well as realty. Further concise analysis is
found in the opinion of Thomas, J., in Andrew v. Andrews, 155 Fla. 654, 21
So.2d 205 (1945), holding that a wife cannot acquire title in herself alone by
purchasing, at tax sale following delinquency, realty held by herself and
husband as tenants by the entirety. More specifically, FLA.
STAT. §689.11 (Curs. Supp. 1947), authorizing conveyance of real estate from
either spouse direct to the other, cannot constitutionally embrace homesteads
because of FLA. CONST. Art. X, §4, Estep v. Herring, 154 Fla. 653, 18 So.2d 683
(1944); Jaim v. Purvis, 145 Fla. 354, 199 So. 340 (1940).
The
interest of the husband in non-homestead property held by the entireties can be
released to his wife, however, for the reasons ably set forth by Buford, J., in
Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941).
Divorce automatically renders the two spouses tenants in common, FLA. STAT. §689.15 (1941), Markland v. Markland, 15 Fla. 629, 21 So.2d 145. (1945),
following Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941)
; therefore a deed from husband to wife of his interest in entirety
property is valid if placed in escrow and not delivered until after grant of
divorce, at which time he is a mere tenant in common; and, even though they
have minor children at the time, such a deed may properly embrace the former
family home, as Weigel v. Wiener, 149 Fla. 231, 5
So.2d 447 (1947), holds; accord, Moore v. Hunter, 153 Fla. 158, 13 So.2d 909
(1943) (homestead owned by man alone and conveyed to ex-wife though he had
lineal descendants).
Can a
wife release her interest in homestead entirety property to her husband prior
to divorce, provided he is the family head? With no lineal descendants, no one
else has any interest in the matter until both spouses die. Assuming lineal
descendants, however, he as family head still cannot alienate without her joinder; and as a practical matter expectancies by
survivorship, previously impossible, are created in these descendants upon
vesting of the whole homestead property interest in him alone. From a strictly
legalistic standpoint, she cannot be the head while he is; and what she
releases vests in her husband as an incidence of the original title. It is not
homestead property; rather it is her non-homestead share of the usufruct of
what is homestead property by virtue of his interest therein. For a related
analysis see the opinion of Whitfield, C. J., in Newman v. Equitable Life
Assurance Soc'y, 119 Fla. 641, 648, 160 So. 745, 748 (1935).
101Rithardson
v. Grill, 138 Fla. 787, 190 So. 235
(1939); Ohio Butterine Co v. Hargrave,
29 Fla. 458, 84 So. 376 (1920).
[*34] he
or she dies.102 Up to this point there is no need for the protection of
the homestead exemption. A joint debt, however, can be
collected by levying on property held by the two as tenants by the entirety,103 and in such instances the homestead exemption becomes
vital.
To be
sure, the incidence of survivorship in joint tenancies exists today in Florida,
if, and only if, provided for expressly in the instrument creating the estate;104 but in the venerable common-law fusion of two physical
persons into one legal person known as a tenancy by the entirety the whole
title continues in the remaining spouse as an incidence of the original title.105
The essence of this estate is ownership per tout et non per my; in other words,
neither the husband nor the wife owns the property, but rather a single legal
person consisting of both husband and wife is the owner.106 At the same time,
it is obvious that this legal unit cannot be the head of a family, nor can both
the husband and the wife, if regarded as two distinct persons, be the head at
any one time. Logically, therefore, it might be argued that the true owner of
the property as a matter of law cannot be the head of a family, and that
accordingly there can be no homestead exemption.
Our
Supreme Court met this cerebral legerdemain in sound practical fashion. To
accept such a contention would deny the homestead exemption to all families
cursed with an estate by the entirety. On the other hand, to deny to the
surviving spouse title to the whole homestead estate held at the death of the
other spouse by the two spouses as tenants by the entirety would crack a pillar
of Florida property law. Our bench has accordingly established two definite
principles: the surviving spouse takes all upon the death of the other,107 but the exemption from forced sale
102See,
e.g., Ohio Butterine Co. v. Hargrave,
supra note 101; English v. English, 66 Fla. 427, 431, 63
So. 822, 823 (1913).
103E.g., Stanley v. Powers, 123 Fla. 359, 166 So. 843 (1936).
104FLA.
STAT. §689.15 (1941); see Kozacik v. Kozacik, 157 Fla. 597, 601, 26 Sold 659, 661 (1946).
105E.g., Palm Beach Estates v. Croker,
106 Fla. 617, 632, 143 So. 792, 797 (1932).
At
times language will be found implying that the interest of the deceased spouse
in tenancies by the entirety passes by survivorship; see, e.g., Coleman v.
William, 146 Fla. 45, 47, 200 So. 207, 208 (1941). In
a physical sense this is true; the fact that one spouse dies and the other
survives results in full title in the survivor. But such phraseology is
misleading to a lawyer. In a legal sense the resultant full title is not
produced by survivorship, but rather as an incidence of the original title in
this unique type of estate.
106See
note 100 supra.
107Knapp
v. Fredricksen, 148 Fla..
311, 4 So.2d 251 (1941); Coleman v. Williams,
[*35]
attaches as a shield by virtue of the property interest of the spouse serving
as head of the family during his or her life.108 This result is not merely
practical; it is also logical, once one admits that the protected homestead
interest need not be so extensive as sole ownership in fee.
To go a
step further in analysis, when the head of the family dies, an estate held by
the two spouses as tenants by the entirety remains free from liability for the
debts of the decedent, not because his exemption passes but rather because
property of another, namely, the surviving spouse, cannot be sold to pay his
separate debts. Similarly, from the standpoint of descent, the survivor takes
the entire estate immediately and automatically by operation of law, and the
heirs do not acquire any interest or expectancy to which an exemption can
attach.
5. The Material Time and the Physical Extent
Time may
or may not be of the essence in contracts, but it is always of the essence in
the matter of homestead exemptions. Catch phrases such as "once a
homestead, always a homestead" are best forgotten; they constitute the
exception rather than the rule.
Attachment
of Lien. Subject
to the specifically favored classes of obligations previously detailed,109 which are always protected by the remedy of forced
sale, unsecured debts are not recoverable by levy on the homestead. Neither are secured debts in many instances. The material time is
that of attachment of lien: if the lien precedes the establishment of the
homestead, forced sale is permitted; if the establishment of the homestead is
prior and the homestead status has not ceased by the time the lien attaches,
then forced sale is barred.110
Although
detailed discussion of attachment and enforcement of liens in general is beyond
the scope of this article, a judgment at law or a
146 Fla. 45, 200 So. 207 (1941); Menendez v. Rodriguez,
106 Fla. 214, 143 So. 223 (1932). The dictum,
purporting to summarize the Menendez holding, appearing in the Knapp opinion at
148 Fla. 315, 4 So.2d 252, to the effect that "the homestead status
continued to exist and inure to the surviving wife," is not only a patent
misstatement of the decision and opinions but is contrary to the basic
characteristic of an estate by the entirety.
108Harkins
v. Bolt, 124 Fla. 774, 778, 169 So. 481,
482 (1936) (decision on cross-assignment of error by appellee).
109See
Part I, 1 supra.
110Contrast,
e.g., Pasco v. Harley, 73 Fla. 81% 25 So. 30 (1917)
(lien did attach) with Milton v. Milton, 63 Fla. 533, 58 So.
118 (1912) (lien did not attach).
[*36]
ground that this did not constitute a "forced sale" proscribed by the
1868 homestead article;"9 and this principle of law has never been
seriously questioned by the courts since then. The date of attachment of the
mortgage lien, and not the date of foreclosure, is the material time.
Establishment
of Homestead Status.
This date of lien does not of itself
solve the problem, however; it must be checked against the
date of creation of homestead status. This latter involves two things:
assumption of headsliip of a family, and acquisition
of an estate. Neither is sufficient by itself. The gay bachelor or allegedly
morose spinster without dependents, and the plodding family man without a home,
must all pay their debts,
Furthermore,
the mere presence of these two prerequisites at some one time is not
conclusive. They must exist at that precise moment when the exemption is
alleged to apply. In short, one or more of the characteristics essential to the
existence of a homestead may have appeared and vanished. As has been noted
previously, the homesteader may have ceased to be the head of a family, or he
may have moved to a location outside Florida, or his interest in an estate by
the entirety may have been termiNated by his death.120
Physical
Abandonment. The foregoing factors are not the only ones to be considered. A
homestead can be physically abandoned. In the simplest instance, a man owning
two separate pieces of property in Florida may move from one to the other.
Obviously he cannot have two homes, in the required sense of permanent
residence, at the same time in the same jurisdiction. In establishing the
second residence he loses the first. He may do precisely this unwittingly.
One
Farquhar and his wife acquired a parcel of country land, onto which he moved
with his wife; and within a few months he attempted to convey it to her by deed
from him alone.121 After residing there for three years he joined her in
conducting a grocery business in a two-story building owned by her separately
and located some two and a half miles away. Throughout the ensuing five years
they lived in furnished rooms above the store, although they visited the other
property frequently on weekends, taking their provisions with them. The
evidence was found to establish the inference that these visits "were of
about the same frequency and
119FLA.
CONST. Art. IX, §1 (1868), carried over in 1885 as FLA.
CONST. Art. X, i.
120See
pp. 24 et seq., 29 et seq., and 32 et seq., supra.
121Murpby
v. Farqubar, 39 Fla. 350, 2 So.
681 (1897).
[*38]
character s any one would ordinarily make for the purpose simply of looking
after" such property.122 The Farquhars furnished
the store property as a home, and even took in boarders. Meanwhile the
community in which the store was located was incorporated as the town of Tarpon
Springs. Farquhar participated in organizing the municipality, voted as a
resident, and served as town marshal.
The
country lot was sold to satisfy a judgment, and the Farquhars
filed a bill requesting that the deed be set aside and their homestead rights
upheld. In directing dismissal of the bill the Supreme Court stressed two facts
prompting reversal of the decree below: the attempt to convey the property to
Mrs. Parquhar, indicating an opinion by her husband
that the property would in fact be abandoned and would accordingly no longer be
protected as his home after the two moved into the store: and his participation
in public affairs, including voting, in Tarpon Springs.
On facts
strikingly similar, the same conclusion was later reached in McGregor v.
Kellum.123 Conveyance of an alleged homestead by the husband alone direct to
his wife was sustained in Rawlins v. Dade Lumber Co.124 The opinion of the
majority gets into difficulties in attempting to uphold such a conveyance,
merely on the ground that there were no
122Id.
at 359, 22 So. at 684.
123 50 Fla. 581, 39 So. 697 (1905). The opinion, by
Cockrell, J., illustrates in a brief statement at 584-585, 39 So. at 698, a recurring type of
evidentiary factual situation establishing the conclusion of fact termed
abandonment:
"It
is shown conclusively that Dr. James Kellum lived for
ten years or more with his wife and children on the property, cultivating with
little success a small grove, but was persuaded in 1886 to move to the town of
Fort Myers where the greater population would enable him to utilize his
profession, that of a practicing physician, to greater advantage; that he
remained at Fort Myers continuously with his family until his death in 1890,
and was there buried with his wife whose death preceded his a year or more;
that he left a portion of his household goods at the old place, but these were
all moved to Port Myers in 1888, after a fire had destroyed an outhouse; that
he made some attempt to keep up the orange grove for about two years, when all
attempts were abandoned, and the only attention paid to the place was the
voluntary act of a neighbor who occasionally went over there to secure some
slight fire protection, and that during the four years and more intervening the
move to Fort Myers and the mortgagor's death neither he nor any member of his
family ever saw the old place. On the contrary, he entered at once into the
active life of the town, remained there continuously, maintained himself and
family by the practice of his profession there, and took an unusual amount of
interest in its public affairs and local politics."
124 80 Fla. 398, 86 So. 334 (1920).
[*39]
children, when faced with the express prohibition in Section 1 of Article X of
the Florida Constitution. The decision is obviously sound, however; before
executing the deed Rawlins left his wife and the homestead property with the
intention of living elsewhere permanently. He carried out this intent; and a
suit for divorce, ultimately successful, was pending at the time of conveyance.
The record, considered on the whole, establishes abandonment.
In a
fairly recent case,125 on the other hand, the claim of
homestead was sustained against a creditor alleging abandonment. The record
contained the testimony of numerous witnesses that "in passing or visiting
. . . some member of the family would be seen about the Marshall home."126
At certain times of the year Marshall spent the major portion of each week in
Jefferson County managing and directing operations on a large farm owned by a
Florida corporation of which he was president and his wife the sole
stockholder. During such period his wife accompanied him and they lived in an
old house on the farm; his children remained in the city. Marshall voted in
Orlando and took an active part in local politics. Said the Court:127
"Common
necessity frequently requires the bread earner to labor away from his family
and home so as to sustain dependents .... "
Temporary
absence of the head of the family for reasons of business, health or pleasure
does not constitute abandonment.128 Determination as to abandonment, like
ascertainment of the establishment of a homestead, is a conclusion of fact
logically inseparable from the concept of domicile; and no single evidentiary
fact is decisive. Indeed, in Read v. Leitner129 the rural homestead did not
lose its character even though the owner voted for a time in the city; voting residence,
while highly persuasive, is not conclusive. The principle is set forth with
customary thoroughness by Mr. Justice Whitfield, speaking for a unanimous court:130
"The
Constitution does not expressly require the owner of a home-
125United
States Fidelity & Guaranty Co. v. Marshall, 148 Fla. 286, 4 So.2d 337
(1941).
126Id. at 291, 4 So2d at 338.
127Id.
at 292, 4 Sold at 339.
128See
Lanier V. Lanier, 95 Th. 522, 525, 116 So. 867, 868 (1928).
129 80 Fla. 574, 86 So. 425 (1920).
130Id.
at 577, 86 So. at 426.
[*40]
-stead or his family to occupy the home place that may be exempt from forced
sale, but the word 'homestead' implies occupancy as the home place, though
having once in good faith been occupied as the home place, it is not essential
that the occupancy should be continuous, provided the intent to return to it as
the homestead continues, and the absence therefrom is
reasonably shown to be for the temporary benefit of the family. Having once
occupied the place as a homestead, the period of absence and the use of the
place must be consistent with a bona fide intent to return and with the purpose
of the absence, all the relevant circumstances being evidentiary in determining
each case on its merits."
Functional
Abandonment. When the homestead amendment was adopted in 1868 Florida was
decidedly a frontier community. The aim of the amendment was to preserve for
the family not only a place in which to live but also certain minimum physical
necessities for producing a living.131 The rural
homestead accordingly embraced the essentials of the farm -- in short, all
"the improvements on the real estate."132 In order to even the score,
the urban dweller was in turn allowed exemption of improvements to the extent
of his "residence and business house,"133 but no more. This short
phrase, innocuous though it sounds, has produced several hundred pages of
conflicting judicial pronouncements and decades of litigation. Even today no
reliable solution exists, but an analysis of the various underlying theories
advanced from time to time should at least serve to outline the nature of the
problem -- the which [sic]
is ever the first step toward solution.
Of all
the cases involving functional abandonment, one in particular stands out as a
landmark.134 Shortly before the turn of the century one Smith sought an
injunction restraining Guckenheimer & Sons from
levying upon his property to satisfy judgment following attachment. The issue
of urban homestead was squarely raised. As might be expected in that period,
the residence and business house were one building, a two-story frame structure
found as a fact to be physically indivisible without destruction. Smith, his
wife and eight children lived in nine of the ten rooms constituting the top
floor; of the five larger rooms below, Smith ran a restaurant in one and rented
the other four to business tenants.
131Discussed under Origin and Purpose supra.
132
FLA. CONST. Art. X, 1.
133Ibid.
Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So. 900 (1900).
[*41] He
occasionally took in lodgers upstairs. The chancellor accorded Smith
the privilege of selecting a portion of the building as
his homestead, his living quarters to be directly over his place of business.
Smith declined. The chancellor thereupon, as requested by cross-bill
of the Guckenheimers, allotted to Smith as homestead
the two south ground-floor rooms, the portion above, the soil underneath, and
all vacant land. The remainder was declared free of exemption. From this decree
Smith appealed, raising no objection to the method of division but insisting
rather that the entire building and lot were exempt. The
decree was affirmed by a divided Court. All admitted that in every case
"improvements or buildings detached from and other than the residence and
business house... together with the land supporting them, become subject to
execution sales 3.35 but here agreement ceased.
Mr.
Chief Justice Taylor regretted that the chancellor had stopped short of
subjecting to levy all land covered at any building level by rented rooms,
inasmuch as any such use of any individual room should determine the use of the
underlying soil, and in his opinion "permanent occupancy by others for
purposes of revenue" to the homesteader "is not a legal use that can
be invoked to maintain the status of exemptor.136
135Id.
at 53, 27 So. at 905.
136ld.
at 17, 27 So. at 915. He
summarized his views as follows at p. 18, 27 So. at 915:
"The
result of the discussion is, in short, that in cases of separate or detached
buildings upon the urban half acres, that are not the residence or business
house of the owner, nor necessary outbuildings used in connection therewith,
such separate or detached buildings, together with the ground that they occupy
and the ground around them separately devoted to their use, are not exempt. In those
cases where the non-exempt improvement or building is combined in a single
structure that likewise constitutes the residence or business house of the
owner, the soil perpendicularly under and covered by any such non-exempt
improvement is improperly dedicated to other uses than are consistent with the
constitutional right of exemption thereof, and is, therefore, not exempt, and
this whether such non-exempt improvement be situated upon the first, second,
third, fourth or tenth floor of a many storied building, and notwithstanding
the fact that the space perpendicularly above or below such non-exempt
improvement may be properly utilized by the owner for legitimate residence or
business purposes; and the loss by such soil of the quality of exemption carries
with it, under the mm cujus est
solum ejus est usque ad coelum,
the loss of the quality of exemption to everything perpendicularly above such
soil. It may be that in the application of this rule the whole of the residence
or business house exemption may be taken away and defeated, but, in such case,
the blame must fail upon the exemptor who thus
devotes the same sail to the two inconsistent use; the
[*42]
Mr. Justice Mabry dissented on the ground that occupancy of part of an
indivisible building as one's residence or for carrying on one's occupation
imparts homestead character to the entire building.
Mr.
Justice Carter, in a separate concurring opinion, stressed the absence of any
objection to the method of dividing the property, and agreed that division in
some manner was mandatory upon an equity court:137
"To
give a creditor in such a case the right to sell the entire property would
deprive the debtor of his homestead and enable the creditor to sell property
forbidden by the constitution. To give the debtor the entire property would
exempt to him property expressly forbidden by the constitution and deprive the
creditor of a right given him by law, without constitutional or statutory
warrant. The fact that a building is incapable of division does not necessarily
prevent the sale under execution of a particular part of the land covered
thereby with the part of the building situated thereon, for it is wholly
unnecessary to 'physically divide' the building to do that, but the anomalous
relations of the co-owners of the building after such sale and the mutual
rights and duties of each, and the specific method of determining just what
portion of the land and building ought to be set aside to the debtor as part of
his homestead, would seem to be proper subjects for legislation under section 6
of the Homestead Article of the constitution."
Unfortunately
this timely suggestion has for nearly half a century fallen on deaf ears.
Some ten
years later the question of abandonment became decisive as regards the right of
a widow to devise a house by will.138 She had lived there with her first
husband, but after his death she had remarried and moved off the property in
order to derive rental income from it. Upon the death of her second husband she
had continued to obtain such income from this property and had lived in a less
expensive cottage rented from a third party. On these facts abandonment and
freedom from exemption were readily found and decreed; the widow's residence
was the cottage on the other lot.
The 1931
case of Jordan v. Jordan139 is often cited in connection with
one legally sufficient to support the exemption contended
for, the other legally sufficient to defeat or destroy it."
137Id.
at 39, 27 So. at 912.
138Matthews
v. Jeacle, 61 Fla. 686, 55 So.
865 (1911).
139 100 Fla. 1586, 132 So. 466 (1931).
[*43]
this problem, although the true basis of decision was that, since the children
had all left borne and the husband and wife had officially separated, he could
no longer be regarded as the head of a family. To be sure, he and his wife
managed to bury the hatchet to the extent of collaborating in paying taxes and
costs of maintenance on the apartment house, and each occupied an apartment;
but the case throws little light on functional abandonment. Indeed, the opinion
refers at times to one house and at other times to one house consisting of two
buildings.140
A year
later, however, a lumber company sued a homesteader to foreclose against his
entire property a materialman's lien for building
supplies used without his knowledge in constructing a small house on a corner of
the lot.141 The homesteader and his wife had allowed their son-in-law as
licensee to build the house, with the understanding that it would go with the
realty if the homesteader sold his property. A unanimous court called this
abandonment of the portion in question; and enforcement was quite properly
allowed against the small house and the land on which it stood, even though the
parents had taken no part in procuring the material and knew nothing of that
transaction.
Up to
this time the soundness of Smith v. Gucleenhdmer
& Sons had stood unquestioned. In 1932, however, storm clouds appeared. An
impoverished widow was doing her best to make both ends meet for her daughter
and herself by obtaining what little income she could from rentals of parts of
the old family estate.142 The rented property comprised two buildings: a
two-story brick garage, used in part for storing her car but principally as the
repair shop of a tenant, and a one-story frame building used by her to store
flower-pots and by a tenant as a sign-painting shop. Originally the latter had
been constructed as the family garage. Both buildings were completely detached
from the residence, although this fact is not infrequently misstated. The equities
were obviously with the unfortunate widow, and in reversing the chancellor and
holding these rented buildings free from levy, a divided court introduced a new
test:143
"The
term 'business house' is not defined in the Constitution relating to urban homestead
exemptions, but it is plain that the intend-
140Id.
at 1591, 132 So. at 468.
141Anderson MILL and Lumber Co. v Clement, 101 FLa. 523, 134 So. 588 (1931).
142Cowdery v. Herring, 106 Ha. 567, 143 So. 433 (1932).
143Id.
at 571, 143 So. at 435.
[*44] -ment is to preserve as exempt, a reasonable portion of the
homestead improvements, in addition to the owner's actual residence, when it
appears that the improvements concerned are being used as a means of making the
owner's livelihood.
"Here
the garage and paint shop in effect constitute a portion of the widowed
homesteader's 'business house' under the circumstances, because it was not
already shown that the widow, upon whose homestead land these rented structures
were located, had any other real 'business house.' On the other hand it was
shown that Mrs. Cowdery depended principally upon the
rents from these structures as her means of living."
On
rehearing144 the thrust of this concept was deflected somewhat by a per curiam opinion pointing out that a homestead of less than
one-half acre had been admitted, that the creditor had the burden of proving
that there were more improvements or buildings thereon than the residence and
business house of the widow, and that this burden had not been met. Just why it
had not been met, when existence of the two buildings, physical detachment, and
rental to others were established, was discreetly left unanswered.
The
reaction of the bar was precisely what one would anticipate. One Larson, owner
in fee simple of a lot admittedly homestead, constructed an apartment house and
garage for rental purposes on its south end, and later conveyed the entire
property to his wife via a third party in one day.145
The
decree of the chancellor upholding the validity of a mortgage made by Larson's
widow on the whole lot was unanimously affirmed as to the apartment house,
garage, and underlying soil, but reversed as to the rest. Cowdery
v. Herring was cavalierly distinguished on the ground that "the owner
living on her homestead merely rented for a tool house a small garage that had
been used as a part of the city homestead property." In a direct reversal
of the ratio decidendi of the Cowdery
case, the Court stated emphatically:146
"An
apartment house for renting purposes is not a 'business house of the owner' of
a homestead within the meaning of Section 1, Article X, of the constitution of
Florida."
144
106 Fla. 574, 144 So. 348 (1932).
145Id at
6, 185 So. at 868.
146McEwen
v. Larson, 136 Fla. 1, 185 So. 866
(1939).
[*45]
This decision, in turn, led quite logically to O'Neal v. Miller,147 in which the appellants relied on Cowdery
v. Herring and the appellees on McEwen v. Larson. The
facts were rather complicated. Rosa Devoe left her
husband for the alleged reason of cruelty, taking their small daughter with
her, and did not return until after his death. Nevertheless the marital
relation continued as a matter of law, and she did not acquire
another home elsewhere.
Her husband meanwhile mortgaged his own residence, four small houses, and a
fish store, all on the homestead property and all rented to others except his
residence. Rosa Devoe, who re-occupied the residence
upon her return, testified that her husband's sole income was derived from
these rentals. A divided court held that the residence alone was exempt. In the
concurring opinion a further basis of distinction was propounded, namely, the
use to which the tenant puts the rented structures.148
In 1945
still another principle was evolved in Lockhart v. Sasser:149
the vertical-line theory. The devise of his apartment house
by a homesteader was voided by a majority on the ground that the entire
building was homestead. It contained six apartments, and the testator lived in
the one on the ground floor Oddly enough, Cowdery v.
Herring was distinguished, in spite of the fact that the same conclusion was
reached in that decision even as to separate buildings. Smith v. Guckenheimer was differentiated on the ground that
"the improvement was shown to be such that it was divisible by a perpendicular
line.150 This statement, unfortu-
147 143 Fla. 171, 196 So. 478 (1940).
148Id. at 182, 196 So. at 482. The language is:
"In
the Cowdery case the garage and paint shop were
improvements in the form of coimneria1 establishments, from which the owner derived
her principal means of livelihood, and as such were held to constitute a
'business house' within the intendment of the Constitution. In the McEwen case,
while it is true that the apartment house was a source of income, such income
was derived from persons who came to reside on the property, and the apartment
house and land required for its operation and maintenance were
held to have been abandoned as homestead property.
"Applying
the principles in the above cases, our conclusion is that the houses which were
built and maintained for residential purposes by Herman [sic] Devoe did not constitute homestead property at the time of
the execution of said mortgage on December 9, 1927."
149 156 Fla. 339, 22 So.2d 763 (1945). Although the point was not specifically discussed on
appeal, the chancellor evidently used this vertical-line theory in Efstathlon v. Saucer, 158 Fla. 422, 29 Sold 304 (1947).
150Id. at 340, 22 So.2d at 764.
[*46] - nately, alleges the exact opposite of the facts. Smith's
building was legally divided solely because the chancellor chose to divide it;
the building was specifically found not divisible without destruction, and in
drawing the perpendicular line the chancellor cut off several of Smith's family
bedrooms on the top floor and allotted him in return a large storeroom,
previously rented out, on the ground floor. The conclusion is inescapable that
Lockhart v. Sasser overrules for all practical
purposes Smith v. Guckenheimer and follows the
dissent of Mr. Justice Mabry therein; but the fact remains that the opinion
does not so state.
Summarizing
the issue of functional abandonment, five theories have been advanced for
determining whether a building is homestead:
1. the use made of it by the homesteader, qualified by the rule
that any portion not occupied by the homesteader either as his residence or as
the place in which he exercises his calling is not exempt;
2. the use made of it by the homesteader, qualified by the rule
that if any part of a building is occupied by the homesteader either as his
residence or as the place in which he exercises his calling, the entire
building is exempt;
3. the recognition that renting is one's business at law
whenever it is one's business in fact, with the corollary that a building
rented is in such instances one's "business house";
4. the use made of the building or portion in question by the
tenant; and
5. the vertical-line theory.
Each
theory can muster some support, but all are subject to serious criticism. The
vertical-line theory, for example, accords exemption to an enormous apartment
house, provided the owner occupies the entire top floor as a penthouse. Yet his
neighbor with two small parallel duplex apartments in one building loses
exemption as to the rented half. Admittedly a line should be drawn somewhere,
but no valid reason has been offered for making it vertical, or indeed for
making it a straight line at all. Estates less than sole ownership in fee of
one building are not unknown to the law.
The
tenant-use theory drives a sharp wedge between a warehouse rented out and an
apartment house, assuming in each instance that the renting of the building in
question is the owner's only business.
Any line
finally drawn will of necessity be arbitrary, and the basic motivating factors
are matters of broad social policy, better determined by the legislative
process. On the one hand it is usually conceded, even [*47] today, that a man
should pay his debts. On the other hand, our source of supply of cannon-fodder must not be endangered. The family can readily
be preserved, however, without making owners of huge estates, large apartment
houses and department stores judgment-proof to the extent of these entire
buildings. A workable compromise might be reached by an amendment to the
Florida Constitution, placing a value limit on the property subject to
exemption151 and exempting rented structures when their rental is in fact the
business of the claimant. Even without amendment, the Legislature should by now
be able to define "business house." Failing this, the Supreme Court
of Florida could return to the ratio decidendi of the
Cowdery case,152 and hold
once again that renting, if it be one's principal business in fact, is also
one's business at law. In any event, rented structures or rented portions
thereof could consistently be separated, regardless of whether the line be vertical, horizontal or jagged. In basic property law,
certainty is an element that should not be cast lightly aside or left to the
vagaries of architectural design.
Contiguity.
Turning now to rural property, when a homesteader resides outside the limits of
an incorporated city or town he may claim as exempt up to 160 acres of land, as
well as "the improvements on the real estate. .
."153 As a further protection, no homestead may be reduced in area by
inclusion within the limits of an incorporated city or town without the consent
of the owner.154 Forthright though this phraseology may seem, interpretation
has nonetheless proved necessary. In the main it has been strictly logical.
Suppose
a homesteader owns a lot in town and also a tract in the country, both of which
do not exceed 160 acres. Can he claim both parcels as his homestead? We have
seen that he can have but one home, and that if he should happen to possess two
or more houses the designation of one as his home, or principal residence, is a
question of fact. Furthermore, the land and house in town are not "on the
real estate" outside the town, nor is his business house "on the real
estate" within the town if it is on the country land. Obviously one parcel
or the other is his residence, and only that one can be his homestead. Our
Supreme Court settled this question in an early decision.155
151A
majority of the states do this; see note 9 supra.
152See
note 142 supra.
153FLA.
CONST. Art. X, §1.
154FLA.
CONST. Art. X, §5.
155Oliver v. Snowden, 18 Fla. 823 (1882).
[*48] Assume, however, that the homesteader owns more
than 160 contiguous acres in the country. In such event, he may select any 160
acres, contiguous each to another;156 but should he
refuse to designate such homestead portion or designate it to the
dissatisfaction of his creditor, the latter may request a survey, and in the
event of dispute the chancellor will make the choice.157 The use made of those
portions of the tract that are not physically occupied as the residence is
immaterial; indeed, such other parcels need not be enclosed or cultivated.158
All that is necessary is that there be one tract or contiguous tracts not
exceeding 160 acres, and perhaps that the homesteader occupy some part of it as
his principal residence.
The word "perhaps" is used because of the
inept phraseology of Section 222.03 of Florida Statutes 1941, quoted below.159
This enactment, which is hardly a model of draftsmanship, not only contains the
ambiguity re-
156FLA.
STAT. §5222.01, 222.02 (1941) ; see Yowell v. Rogers, 128 Fla. 881, 882, 175 So. 772, 773 (1937). The first six sections of Article X of the
Constitution do not mention contiguity. Section 7, however, creating the tax
exemption, places it on the "home and contiguous real property, as defined
in Article 10 [sic], Section 1," thereby indicating that contiguity is
implied in Section 1. The Legislature has expressed its view after a fashion in
FLA. STAT. §222.03 (1941), quoted infra in note 159, but at best the section Is ambiguous. It is ably criticized in REDFEARK, WILLS AND
ADMINISTRATION or ESTATES IN FLORIDA 397 n.25 (2d ed. 1946).
157FLA.
STAT. §5222.03, 222.08-222.10 (1941) ; cf. Fort v. Rigdon, 100 Fla. 398, 129 So. 847 (1930);
Smith v. Guckenheimer & Sons, 42 Fla. 1, 27 So.
900 (1900).
158Armour
& Co. v. Hulvey, 73 Fla. 294, 74 So. 212 (1917) (entire military academy held exempt);
McDougall v. Meginniss, 21 Fla. 362 (1885) (unused land
held part of homestead); cf. Fort v. Rigdon, supra
note 157 (complaint of homesteader, seeking to have best portions set aside,
rejected).
159The
full text reads (italics supplied):
"If
the creditor in any execution or process sought to be levied is dissatisfied
with the quantity of land selected and set apart, and shall himself, or by his
agent or attorney, notify the officer levying, the officer shall at the
creditor's request cause the same to be surveyed, and when the homestead is not
within the corporate limits of any town or city, the person claiming said exemption
shall have the right to set apart that portion of land belonging to him which
includes the residence, or not, at his option, and if the first tract or parcel
does not contain one hundred and sixty acres, the said officer shall set apart
the remainder from any other tract or tracts claimed by the debtor, but in
every case taking all the land lying contiguous until the whole quantity of one
hundred and sixty acres is made up. The person claiming the exemption shall not
be forced to take as his homestead any tract or portion of a tract, if any
defect exists in the title, except at his option. The expense of such survey
shall be chargeable on the execution as costs; but if it shall appear that the
person claiming such exemption does not own more than one hundred and sixty
acres in the state, the expenses of said survey shall be paid by the person
directing the same to be made."
[*49] -ferred to in footnote
156 supra, but also creates an even more serious problem. Does it mean simply
that the debtor may elect to meet his obligation when sued and waive his
homestead exemption at that time? If so, the provision cannot alter any of the
rights already existing under the Constitution,160
and, of course, it cannot limit waiver to country residents alone.
On the other hand, it may well mean that the rural
debtor is privileged to claim property on which he does not reside.161 If so,
however, the exemption is purely statutory, and obviously has nothing to do
with homestead; a homestead without a home is about as readily perceived as a
copyright without any copy. Accordingly, all the reasons sustaining the
homestead exemption, including the specific constitutional authorization,
vanish in this instance, a mere label being insufficient to change the true
nature of this new statutory exemption; and the question at once arises as to
whether owners of non-homestead property as a class can by mere legislative
fiat be split so as to exempt some of them from the practical necessity of
meeting their obligations and deny exemption to the others, solely on the basis
of whether their property is located outside or inside a town or city. This
patent discrimination cannot stand unless some reasonable ground for the
differentiation be offered;162 and to date this has
not been done.
Furthermore, in Fort v. Rigdon163 appellants sought
reversal of a decree allotting them the residence and a contiguous tract
totaling 160 acres, their contention being that they should be allowed to
choose the most valuable portions of an estate comprising 560 contiguous acres.
The Supreme Court unanimously declared in its affirmance
that the chancellor was bound to select the tract upon which the actual
residence was located. Numerous dicta uniformly support this view.164
160As
regards waiver see the early analysis in Patterson v. Taylor, 15 Fla. 336, 343
(1875) (personalty). But cf. Hutchinson v. Stone, 79
Fla. 157, 165, 84 So. 151, 154 (1920) ; Aibritton v. Scott, 73 Fla. 856, 858, 74 So. 975 (1917) (realty).
161This
interpretation, which is far sounder from a grammatical standpoint, is adapted
by no less an authority than Redfearn in his Wills
and Administration of Estates in Florida 412 (2d ed. 1946).
162The
pertinent provisions, commonly known as equal protection and substantive
due process, are contained in FLA. CONST. Decl. of Rights §§1, 12 and U. S. CONST. Amend. XIV.
163 100 Fla. 398, 129 So. 847 (1930).
164See,
e.g., Yowell v. Rogers, 128 Fla. 881, 882, 175 So. 772, 773 (1937); Matthews v. Jeacle, 61 Fla. 686, 691, 55 So. 865,
867 (1911); Saxon v. Rawls, Si Fla. 555, 558, 41 So. 594, 593 (1906) ; Brandies v. Perry, 39 Fla. 172, 176,
[*50] Returning more specifically to the problem of
contiguity, can two or more tracts of land in the country, covering 160 acres
or less but not touching each other at any point, be lumped together as one
homestead if owned by one family head and farmed by him as a unit? Or must they
be contiguous? The Constitution is silent on the matter, but the early leading
case of Brandies v. Perry165 established unequivocally the necessity of
contiguity in setting up a homestead. No question arose until 1920, when the
following theory was advanced in Clark v. Cox, an abandonment dispute:166
". . . the question whether actual contiguity is
required must be determined in each case on its peculiar facts."
Unfortunately the opinion does not explain the
distinction between "actual contiguity" and mere
"contiguity," perhaps because no such distinction can exist outside
the realm of metaphysics. Two tracts of land either touch at one point or they
do not. If they do, they are contiguous; if they do not, they are not
contiguous. The answer is one of pure fact, and can be readily ascertained.
Quite probably the statement was intended to signify
that contiguity is not always requisite as a matter of law. This is true,
although in exceptional circumstances only, such as those exhibited in Clark v.
Cox. A railroad had constructed its line completely across a homestead tract,
and the homesteader and his wife had later conveyed in fee to the owners of the
railroad a strip extending fifty feet on each side of the center of the track.
There was also a county highway running along the strip. The rule laid down in
Brandies v. Perry was not applied. The result is sound, but to maintain that
determination depends "in each case on its peculiar facts" is to
eliminate rules needlessly -- and this should be resorted to in the law in only
those instances in which formulation of principle is at the time impracticable.
22
So. 268, 270 (1897); McDougall v. Meginniss, 21 Fla.
362, 369, 372 (1885); Drucker v. Rosenstein, 19 Fla.
191, 195, 198 (1882); Oliver v. Snowden, 18 Fla. 823, 836 (1882) ; Baker v. State, 17 Fla. 406, 409 (1879). The earlier
opinions were written during the effective period of the forerunners of FLA.
STAT. §222.03 (1941), which corresponded exactly to the portion italicized in
note 159 supra in words and meaning and differed in immaterial punctuation
only, namely, FLA. REV. STAT. §2000 (1892) and Fla. Laws
1873, c. 1944. The latter, however, amended Fla. Laws 1869, c. 1715, §3, materially in the wording here analyzed.
165 39 Fla. 172, 22 So. 268 (1897).
166 80 Fla. 63, 69, 85 So. 173, 174 (1920).
[*51] Shortly before this decision, the problem had
been considered in Shone v. Bellmore.167 The bill to
set aside certain land as homestead alleged the fact of contiguity
specifically, and by demurrer to the whole bill the defendants admitted such
allegation. The necessity of contiguity was accordingly not in issue, but in a
dictum168 the Court summarized the rule in Brandies v. Perry and cited the
approval thereof by dictum in Milton v. Milton.169 The opinion then suggested:170
"...there is no reason why the owner of a homestead which lies
in a compact usual body may not sell such parts of it as he may desire and
retain the remainder for his homestead so long as he does not separate one part
of his homestead thus remaining from another by intervening lots or blocks
which he has conveyed to others."
It remained for a federal court, though quite properly
attempting to follow the decisions of the Supreme Court of Florida as the final
word on the meaning of any provision of Florida law, to hold without citation
of authority that separation of some portions of a homestead tract from the
rest by sale of land lying between does not constitute abandonment of such
separated portions.171
The tax section of the Homestead Amendment, although
it admittedly deals with a separate and distinct type of exemption and was
added half a century later, may throw some light on the matter, in that it
specifically refers to "the said home and contiguous real property as
defined in Article 10 [sic], Section 1."172 In the tax field there can
accordingly be no doubt that contiguity is mandatory;173
and the language just quoted contains at least an inference that the citizens
of Florida regard contiguity as an integral part of the concept
"homestead."
Four theories, then, have been advanced as regards
contiguity:
I. It is never necessary.
2. It is always necessary.
3. Acquisition and abandonment of the homestead are
governed by different rules, contiguity being mandatory in the former instance
but unnecessary in the latter.
167 75 Fla. 515, 78 So. 605 (1918).
168Id.
at 524, 78 So. at 607.
169 63 Fla. 533, 535, 58 So. 718, 719 (1912).
170Shone
v. Beilmore, 75 Fla. 515, $25, 78 So.
605, 608 (1918) (italics supplied).
171Croker v. Croker, 7 F.2d
218 (S. D. Fla. 1925).
172FLA.
CONST. Art. X, §7.
173State
ex tel. Dunscombe v. Courson,
144 Fla. 439, 198 So. 108 (1940).
[*52] 4. Contiguity is necessary
in alt instances other than those in which abandonment is, or could be,
compelled in the public interest, in which latter event the abandonment is
limited strictly to the portion so transferred and does not destroy the
homestead character of the remaining portions.
The first alternative leads to obvious absurdities; an
individual could have small country homesteads all the way from Pensacola to
Key West, provided they did not exceed a total of 160 acres. The second works a
severe hardship in instances of loss of a transecting parcel by eminent domain,
and necessitates overruling Clark v. Cox and disregarding the dictum in Shone
v. Belimore. The third principle introduces a
distinction not as yet accepted by the Florida courts and unexplained in the
one federal decision either by any reasons or by any Florida authorities. It
would enable an individual to establish a homestead composed of separated
parcels merely by acquiring intervening land temporarily. Having established
contiguity, he could then sell the unwanted land without impairing the
homestead character of the rest. No advantages likely to result from such a
differentiation have been suggested.
The fourth basis of decision squares with what the
Florida courts have consistently maintained as the Florida law, and results in
fair treatment as well as uniformity. It protects a homesteader who happens to
be singled out for condemnation proceedings, yet without making serious inroads
on the uniformity of the requirements of contiguity. If he voluntarily splits
his property, he has no one to blame but himself.
PT II -- TRANSFER OF HOMESTEAD REALTY
Assuming that the realty in question is the
homestead174 of its owner, and subject to the predominating rules of property
law previously discussed,175 the Florida Constitution
and statutes place certain restrictions upon its alienation, whether by
testamentary disposition or by inter vivos deed. The
exact nature and effect of these restrictions, while generally filtered through
the spectroscope of judicial deliberation so as to produce a ray of pure and
definite color, have on occasion become blurred by conflicting elements of
public policy and shadowed by doubtful interpretation of the organic law.
"'Throughout Part II the word
"homestead" is confined, in the interests of clear presentation, to
real property alone unless a broader signification is specifically Indicated.
Homestead personalty is dealt with in Part m infra.
1See Part I, 4 supra.
[*53] It is beyond dispute that the principles
discussed earlier in connection with the exemption of homestead property from
forced sale apply here,176 rather than the recent
rules governing the exemption of homestead property from taxation. Whenever the
realty in question is held by its owner under such circumstances as to make it
exempt from forced sale, then it is subject to the restrictions on alienation
laid down by the Florida Constitution and the statutes; and this is, true
regardless of whether its owner takes advantage of the $5,000 exemption from
taxation.177
The Florida Constitution, following the custom among
such instruments, deals with this phase of the homestead question in barest
outline, leaving to the Legislature and the courts the task of implementing and
delineating its intent. The authority of the Legislature to deal with this
problem is found in Section 6 of Article X, and of course the Supreme Court has
always conceded its own authority to interpret the Constitution.
The most fruitful approach to the question of
alienation of homestead realty is to place the cart before the horse and to
consider first the matter of devise and descent of the homestead, before
looking into the restraints placed upon the owner of such property while he is
still enjoying its use. The reason for this unnatural juxtaposition lies in the
fact that the prohibition against the willing of homestead land in certain
situations has been employed as a basis for subjecting its owner while living
to restrictions on the use of his property that are not -readily gathered from
an uninspired reading of the Constitution.178
1. Devise and Descent of Homestead Realty
The only light cast by the Florida Constitution on the
ownership of the homestead after the head of the family dies is found in the
statement in Section 2 of Article X that the exemption "shall inure to the
widow and heirs of the party entitled to such exemption," and in Section
4, which contains the caveat:
"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
176FLA.
CONST. Art. X, §ft, 2, 4; see McEwen v. Larson, 136 Ma. 1, 7,
185 So. 866, 868 (1939).
177FLA.
CONST. Art. X, §7; see Part 'V infra. It is true, however, that the existence
of the tax exemption may be of some evidentiary value.
178See
Part II 3 infra.
[*54]
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."
It is, of course, clear that the homestead exemption
and the title to the physical property constituting the homestead are two
distinct affairs.179 And it is equally clear that an exemption cannot exist, in
any real sense, in the absence of some property to which it may attach.180
Unless the homestead, upon the death of the head of the family, passes to one
or more of the persons to whom the homestead exemption inures, the exemption is
lost. The question then becomes: Under what circumstances must title to the
homestead, upon the death of the head of the family, pass to those to whom the
exemption inures; and conversely, under what circumstances may the head of the
family cause the title to pass to someone not entitled to the exemption?
Everyone admits that the Legislature, unless inhibited
by the Constitution, has complete authority to determine what happens to one's
property when he dies.181 The Florida Probate Law mentions the homestead182 in
two places. The first provides:183
"Any
property, real or personal, held by any title, legal or equitable, with or
without actual seisin may be devised or bequeathed by
will; provided, however, that whenever a person who is head of a family,
residing in this state and having a homestead therein, dies and leaves either a
widow or lineal descendants or both surviving him, the homestead shall not be
the subject of devise, but shall descend
179Coleman
v. Williams, 146 Fla. 45, 200 So. 207 (1941) ; Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932)
(realty); see Hinson v. Booth, 39 Fla. 333, 346, 22 So.
687, 691 (1897) (dealing with exempt personal property).
180Ibid.; see generally the opinion by Brown, J., in Moor v.
Price, 98 Fla. 276, 123 So. 768 (1929), as to the distinction
between exemption and property right. Another excellent discussion of
this question is found in the opinion by Mabry, J., In Godwin v. King, 31 Fla.
525, 13 So. 108 (1893). See also Wilson v. Fridenburg, 19 Fla. 461 (1883).
181The
relation of this general principle to the homestead provisions is pointedly
analyzed by Sebring, J., in Taylor v. Payne, 154 Fla. 359, 17 So.2d 615 (1944).
See also Caro v. Caro, 45
Fla. 203, 218, 34 So. 309, 314 (1903); RnnrzinN,
Wiri.s rn ADMINISTRATION OF
ESTATES IN FLORIDA 26 (2d ed. 1946).
182The
term "homestead" here refers to realty only. See Part UI infra as
regards homestead personally. Cf. Adams v. Adams, 158 Fla. 173, 28 Sold 254 (1946).
183FLA.
STAT. §731.05 (Cum. Supp. 1947).
[*55]
as otherwise provided in this law for the descent of homesteads."
The second prescribes that whenever the property in
question is homestead, and the head of the family184 dies:185
"The
homestead shall descend as other property; provided, however, that if the
decedent is survived by a widow and lineal descendants, the widow shall take a
life estate in the homestead, with vested remainder to the lineal descendants
in being at the time of the death of the decedent."
These statutes are not in conflict with the Florida
Constitution in respect of their authority to alter the substantive rules of
descent,186 but they do approach the question in a
somewhat haphazard fashion. The use of the term "lineal descendants"
in the statutes results from the provision in the Florida law of succession187
that intestate property shall descend first to the surviving spouse and lineal
descendants of a decedent. The statutory terminology dealing with restrictions
on the devise of homestead is narrower than that employed in Section 2 of
Article X,188 which provides that the exemption shall
inure to the "widow and heirs" of the head of the family, and yet is
somewhat broader than that of Section 4, which uses the word
"children" in imposing what has come to be regarded by the judiciary
as an inferential restriction on the devise of a homestead. It is possible to
envision many anomalous situations that might arise from this divergence in
terminology; accordingly, at a time when constitutional revision is in the air,
an attempt might well be made to achieve at least some degree of accuracy in
expression and consistency in thought, preferably by conforming all statutory
provisions to whatever is decided upon and then stated clearly in any new
constitution.
Since the homestead law is designed to protect and
preserve the family, its effect on the right to devise
or inherit will be analyzed from the standpoint of each type of membership in
the family.
184See
Part I, 2 supra. It should be recalled that a woman may
be the head of a family, as in Bigelow v. Dunphe, 144
Fla. 330, 198 So. 13 (1940), yet she cannot leave a "widow."
185FLA.
STAT. §731.27 (Cum. Supp. 1947).
186Nesmith
v. Nesmith, 155 Fla. 823, 21 Sold 789 (1945); Saxon v. Rawls, 51 Fla. 555, 41 So. 594 (1906) (as to early statute); cf. note 179 supra.
187FLA.
STAT.. §731.23 (Cum. Supp. 1947).
188FLA.
CONST. Art. X, quoted in full at the end of Part III.
[*56] Husband. The homestead law contemplates
primarily the normal situation, in which the head of the family and the owner
of the homestead is the husband. When he dies leaving either a widow or lineal
descendants surviving, he is not permitted to alter by will the prescribed
disposition of the property.189 If, however, he outlives his wife and lineal
descendants, even though he continues to occupy his dwelling as the head of a
family composed of himself and other types of dependents, there is nothing to
prevent his devising the homestead as he may choose.190 Again, if he outlives
his wife, and his children grow up and move away to homes of their own, leaving
him with no dependents, he is then free to dispose of his dwelling by will, as
well as by intervivos deed-not because his children
are adults but rather because he is no longer the head of a, family and
consequently his dwelling is no longer a homestead.191
Turning to the problem of the in terrorem
clause, may the husband require that his widow or lineal descendants forego
their rights in the homestead as a prerequisite to receiving any benefits from
the provisions of his will? There is authority in other jurisdictions that such
an election may be forced by wffl.192 In Palmer v. Palmer193 the Supreme Court
of Florida expressly refrained from deciding this question and limited its
decision to treating as a nullity the portion of a will attempting to devise
the homestead when unaccompanied by any expression of intent to require an
election on the part of those entitled to the homestead. Later, in Shone v. Belimore, 194 the Court quoted with approval language from
the Palmer case that, taken by itself, appears to deny
the right of a testator to require
189FLA.
STAT. §731.OS, 731.27 (Cum. Supp. 1947); Efstathion
v. Saucer, 158 Fla. 422, 29 Sold 304 (1947) ; Bess v.
Anderson, 102 Fla. 1127, 136 So. 898 (1931); Shone v. Beilmore, 75 Fla. 515, 78 So. 605
(1918); Johns v. Bowden, 68 Fla. 32, 66 So. 155
(1914); Griffith v. Griffith, 59 Fla. 512, 52 So. 609
(1910); Saxon v. Rawls, 51 Fla. 555, 41 So. 594
(1906); Palmer v. Palmer, 47 Fla. 200, 35 So. 983
(1904). Regarding the similar provision in the Constitution of 1868 see
Moseley v. Taylor, 68 Fla. 294, 67 So. 95 (1914); Wilson v. Fridenburg, 19 Fla.
461 (1882). An unequivocal conveyance, though reserving a life estate,
has been upheld as a present transfer; see note 297 infra. But a purported
conveyance by either a revocable trust or a deed to be delivered after death
has been stricken down as a testamentary disposition; see note 275 infra.
190Ibid.
191See
Part I, 2 supra.
192See Redfearn, Wills and
Administration of Estates in Florida 302, 410 (2nd ed. 1946).
193 47 Fla. 200, 35 So. 983 (1904).
194 75 Fla. 515, 78 So. 605 (1918).
[*57] such an election; but the express refusal in
that case to decide the question
was either overlooked or ignored.
The language in Shone v. Beilmore
is likewise mere dictum, and the question today remains undecided in Florida.
There is no cogent reason for striking down a will that requires such an
election. The purpose of the homestead law is not defeated by a will of that
character, since those entitled to the homestead are not likely to forego their
rights unless their own advantage so dictates. Nor does public policy lend any
support to the notion that a widow or lineal descendant should have his cake
and eat it too.
In the normal situation the husband is the head of the
family, in which
event the family dwelling, if owned by his wife, cannot be
homestead and
therefore is not subject to the homestead restrictions at all.195
Nevertheless, a wife can be the head of the family; and the dwelling owned by
the wife is homestead property under these circumstances.196 The rights of her
surviving husband are not entirely clear. The Florida Probate Law197 guarantees
a surviving husband no mandatory share in his wife's estate corresponding to dcwer, although the statute governing descent198 does give
him a child's share in his wife's intestate property, a fact which may in a
broad sense make him an "heir" of his wife.199
It may at least be argued, then, that a surviving
husband, if the homestead descends to him, obtains along with it the exemption
from forced sale; but by no extension of implication can one validly contend
that the terms of the Florida Probate Law require an estate in the homestead to
descend to a surviving husband. Under the provisions of these statutes a wife
owning a homestead upon her death and survived by her husband alone is free to
devise such property in whatever manner she may choose.200 The statutes do
forbid her to will her homestead when she is survived by lineal descendants;
2011 and in such event a surviving husband
195 See notes 49-51 supra.
196note 56 supra.
197FLA.
STAT., cc. 731-736 (Cum. Supp. 1947);
as to dower see §731.34.
198FLA.
STAT. §73123 (Cum. Supp. 1947).
199See
Reinier v. Smith, 105 Fla. 671, 679, 142 So. 603, 605 (1932). But see Arnold
v. Wells, 100 Fla. 1470, 1482, 131 So. 400, 405 (1930). Cf. Wilson v. Fridenburg,
19 Fla. 461 (1882) (holding widow not "heir" under FLA. CONST. Art. IX, §3 (1868), which provided accrual of exemption to
"heirs" without mentioning widow).
200FLA.
STAT. §73 1.05, 73127 (Cum. Supp. 1947). FLA. CONST.
Art. X, §4 does not forbid devise by either husband or wife when without
children.
201Ibid
[*58] presumably takes his child's share202 clothed with the
exemption from forced sale. No provision is made for a life estate in the
husband with vested remainder to the lineal descendants, as is prescribed for
his wife when he dies first.203
This illogical and unrealistic discrepancy has never
been explained. Since, as noted at the beginning of this article, the purpose
of the homestead law is to protect and preserve the family-and not merely the
very young, the very old, or the allegedly weaker sex-the law should extend its
beneficence to a dependent, incapacitated and indigent husband. In such type of
family the economic jolt occasioned by loss of the home is fully as severe as
that suffered by the surviving wife in the normal family.
Wife. As has just been explained, the wife who is the
head of a family and the owner of its homestead is expressly restricted as to
devise in the one instance in which she is survived by lineal descendants; in
such event the homestead must descend as intestate property.
For the wife of more docile temperament, however, who
permits her husband to occupy at least the nominal headship of the family and
to hold title to the family dwelling, Florida law provides adequate safeguards
to protect her and the other members of the family. Her husband cannot will the
homestead away from her, even though no lineal descendants be
living at the time of his death.204 When she survives him and there are no lineal
descendants, she takes his entire interest in the property upon his death by
virtue of the law of descent. If she and lineal descendants both survive him,
then she receives a life estate in the homestead, with vested remainders to the
lineal descendants in being at the time of his death.205 Prior to the adoption
of the present Probate Law in 1933, a widow in Florida had the option of
asserting her right of dower or of claiming a child's part in her husband's
homestead.206 The dower right consisted of a one-third interest for life in
property of which her husband died seized or had conveyed without
relinquishment of dower right by her; a child's
202FLA.
STAT. §731.23 (Cum. Supp. 1947) gives the surviving
spouse a child's part of the intestate property, or all of it when there are no
lineal descendants.
203FLA.
STAT. §731.27 (Cum. Supp. 1947).
204See
note 189 supra.
205FLA.
STAT. §731.27 (Cum. Supp. 1947).
206FLA.
COMP. GEN. LAWS §S484, 5493 (1927); discussed in
Church v. Lee, 102 Fla. 478. 136 So. 242 (1931), and by Brown, J., in his
masterful opinion in Moore v. Price, 98 Fla. 276, 123 So.
768 (1929). Godwin v. King, 31 Fla.
525, 13 So. 103 (1893), construes the Constitution of
1868 in relation to dower.
[*59] part was an absolute proportionate interest,
which of course varied with
the number of children.207
Today a widow has no dower right in her husband's
homestead, and
is given no option as to the share she will take in such
property.208 Upon his death she takes either his entire interest in the homestead
in the absence of lineal descendants, or a life estate when there are lineal
descendants surviving hini.209 Theoretically, at least, a widow need not take
any affirmative action in order to secure her rights in the homestead.210 As a
practical matter, however, she may find that unless she asserts her claim to
the homestead the probate court may include such property in the administration
of the husband's estate and thus multiply the difficulties involved in
establishing her claim.211
It is common practice in Florida today for a husband
and wife to take title to their homestead as tenants by the entirety.212
Whenever the homestead is held in this manner, the entire interest in the
property passes by operation of law to the surviving spouse upon the death of
the other, and neither homestead nor probate provisions apply.213
Lineal Descendants. Although the Florida Constitution
provides simply that the homestead exemption "shall inure to the widow and
heirs" of the homesteader214 arid refers only inferentially to the rights
of "children" in homestead property,215 the
Probate Law employs the term "lineal descendants" in dealing with the
devise and descent of homesteads.216
207 Ib1d.
208 FLA. STAT. §731.34 (Cum. Supp. 1947).
209FLA. STAT. §731.27, 731.23 (Cum. Supp. 1947). common law this was true as to dower, but today FLA. STAT.
§731.35 (Cum. Supp. 1947) requires the widow to file
with the county judge an executed and acknowledged election to take dower
within nine months after the first publication of the notice to creditors of
her deceased husband's estate; otherwise the dower right is regarded as waived,
211See Part IV, 3 infra, dealing with lathes. FLA.
STAT. §95.23 (1941), a curative statute, was applied to homestead rights in Barnott v. Proctor, 128 Fla. 63, 174 So.
404 (1937), thus pointing up another danger inherent in
delay.
212See, e.g.: Coleman v. WIlliams,
146 Fla. 45, 200 So. 207 (1941); Harkins v. bolt, 124
Fla. 774, 169 So. 481 (1936); Oates
v. New York Life Ins. Co.,
113 Fla. 678, 152 So. 671 (1934), rehearing denied, 116 Fla. 253, 152 So. 672 (1934) ; Menendez v.
Rodriguez, 106 Fla. 214, 143 So. 223 (1932); Part I, 4 supra, especially note
100.
213Ibid.; see also Note, 1 U. of Fla. L. Rev. 433 (1948).
214 CONST. Art. X, §2.
215 Cf. CONST. Art. X, §4.
216FLA. STAT. §73I.05, 731.27 (Cum. Supp. 1947).
[*60] The result is that only lineal descendants of
the owner of a homestead in being at his death, as well as his widow of course, are guaranteed a property interest in the homestead
realty. When he is survived by a widow, his lineal descendants in being at the
time of his death take vested remainders in the homestead, subject to the
widow's life estate.217 If there be no widow, these lineal descendants take an
immediate absolute interest, 218 divided among them according to the per stirpes rule.219 The vested remainder may not be defeated
by the devise of the husband; neither may the absolute interest be affected by
the will of either a male or a female homesteader.220
Lineal descendants in this context include children of
the decedent's own blood, whether already born or en ventre
sa mere at the time of decedent's death, 221 and
whether minor or adult.222 An illegitimate child will not be included among the
lineal descendants of its father for purposes of inheritance unless the father
has acknowledged his paternity by a writing signed in the presence of a
competent witness.223 An illegitimate child is, however, the heir of its
deceased mother,224 while an adopted child of a
deceased homesteader is his heir and lineal descendant for all purposes.225
The adopted child of a deceased lineal descendant is
in a somewhat doubtful position with respect to the ancestor of such lineal
descendant. An argument can, or could, be made, in the light of the liberal trend
of the recent statutes, that the Legislature intended to include such a child
among the heirs of its adopting parent's ancestor, but this contention has not
prevailed to date.226
217FLA.
STAT. §731.27 (Cum. Supp. 1947).
218FLA.
STAT. §731.23 (Cum. Supp. 1947). Their absolute
interest is of course limited to the homesteader's estate, which may be less
than the fee.
219FLA.
STAT. §731.25 (Cum. Supp. 1947).
220Should
our Supreme Court decide to give effect to the in terrorem
clause, however, a means of inducing relinquishment of homestead rights would
exist; cf. the discussion under Husband supra in this Part II, 1.
221Shone
v. Beilmore, 75 Fla. 515, 78 So.
605 (1918).
222Cumberland
& Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939); Church v. Lee, 102 Fla.
478, 136 So. 242 (1931).
223Fr.
STAT. §731.29 (Cum. Supp. 1947).
224Ibid.
225FLA.. STAT. §72.22, 731.30 (Cum. Supp. 1947), construed as
to an earlier statute, almost identical, in Church v. Lee, 102 Fla. 478, 136 So. 242 (1931); see In re Brock, 157 Fla. 291, 294, 25 So.2d
659, 661 (1946).
226Ibid.
In spite of any implications that one might be tempted to draw from
[*61] Finally, it should be noted that under the per stirpes rule, which applies in Florida, a remote lineal
descendant will become an heir of a deceased ancestor only if the intervening
persons in the chain of descent have predeceased the ancestor.227
Other Heirs. Lineal ascendants and collateral heirs,
although they may inherit the property of a decedent if he leaves no spouse or
lineal descendants surviving,228 are guaranteed no
part of a decedent's homestead. They will take the homestead accompanied by the
exemption if they succeed to the property229 but the homesteader is free to
will it away from them; and if he does so the exemption perforce comes to
naught.230
The fact that the lineal descendants or other heirs
have reached their majority does not alter the operation of the homestead law.
The exemption and the property will pass to minor or adult heirs in precisely
the same ma–ner.231 The only requirement is that the property in question be
the homestead of the decedent at the time of his death.
An interesting question apparently not yet brought
before the Court is the degree of misconduct that will bar an heir from
asserting his claim to the homestead. It is clear that a wife who wilfully deserts her matrimonial home will not be allowed,
upon the death of her husband, to assert any claim to the homestead;232 and in this respect the Court has laid down a stricter
rule than is generally applied to the descent of other types of property. An
heir convicted of murdering the homesteader cannot claim any interest in the
homestead property.233 Whether or not less
the dictum In re Brock, supra mote 225, the more
generally accepted view is that adoption statutes of this type do not extend
the relationship for purposes of inheritance beyond the adopting parent, for
the reasons set forth In re Hewett's Estate, 153 Fla.
137, 13 So.2d 904 (1943), cited with approval In re Poole's Estate, 153 FLa. 610, 15 So.2d 323 (1943).
227FLA.
STAT. §731.25 (Cum. Supp. 1947), Broward v. Broward, 96 Fla.
131, 117 So. 691 (1928).
228FLA.
STAT. §721.27, 731.23 (Cum. Supp. 1947).
229FLA.
CONST. Art. X, §2; Hill v. First Nat. Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917) ; Johns v. Bowden, 68 Fla. 32, 66 So. 155
(1914).
230FLA.
CONST. Art. X, §4, Purnell v. Reed, 32 Fla. 329, 13 So. 874 (1893); see Joins v. Bowden, 68 Fla. 32, 44, 66 So. 155, 158 (1914).
231Cumberland
& Liberty Mills v. Kggin, 139 Fla. 133, 190 So. 492 (1939); Church v. Lee, 102 Fin.
478, 136 So. 242 (1931); Miller v. Finegan,
26 Fla. 29, 7 So. 140 (1890).
232Barlow
v. Barlow, 156 Fla. 458, 23 So.2d 723 (1945); cf. note 76 supra.
233FLA.
STAT. §731.31 (Cum. Supp. 1947). It seems obvious that "estate" in
this statute includes homestead property. Less serious misconduct on the part
of an
[*62] serious misconduct Will cut off an heir's claim
to homestead property, as it does in the case of a deserting wife, has not been
decided in Florida; but the current of authority in situations involving other
classes of property indicates that it would not.234 There is a sound social
policy underlying this distinction between a wife and heirs. Wayward conduct on
the part of a wife strikes a far more serious blow at the very heart of the
family structure-that continuity of the home which the
homestead law is designed to preserve.
From the standpoint of subjection to administration
and probate proceedings, a decedent's homestead is not a part of his estate.235
This distinction is important, not only in the matter
of substantive rights but also with regard to the jurisdictional and other
procedural differences thus occasioned, discussed in Part IV infra.
2. Intervivos Transfer of
Homestead Realty
The only express restrictions placed by Florida law
upon intervivos transfer of homestead property are
found in the following passages:
and the real estate shall not be alienable without the
joint consent of husband and wife, when that relation exists."236
"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 *
These provisions lead to the conclusion that homestead
realty may be conveyed away during the life of its owner by either deed or
mortgage (1) provided that the instrument of conveyance be properly executed by
the owner of the homestead; and (2) provided further that, if the owner have a
husband or wife, the spouse consent to the transfer and exhibit
heir is not penalized by the Florida Probate Law.
234Early
authorities were in conflict as to whether, in the absence of statute, an heir
who murdered his ancestor in order to convert his mere expectancy into a vested
interest was thereby barred from his inheritance; see RaDnAn,
Wn.ts AND ADMINISTP.ATION OF ESTATES TN FLORIDA 565
n. 30 (2d ed. 1946).
235Spitzer
v. Branning, 135 Fla. 49, 184 So.
770 (1938), 139 Fla. 259, 190 So. 516
(1939); Baker v. State, 17 Fla. 406 (1879).
236FLA.
CONST. Art. X. §1.
237FLA.
CONST. Art. X, §4.
[*63] that consent by joining
in the execution of the deed or mortgage. These constitutional provisions offer
the advantages of brevity, reasonable clarity, and flexibility in
interpretation and enforcement. To combine such linguistic virtues with the
additional goal of propounding phraseology that leaves no room for doubt in any
factual situation is obviously impossible, however; and, as might have been
expected, the courts have found the precise meaning of Article X questioned in
a variety of circumstances.
Execution. The meaning of the words "duly
executed," as applied to the owner of the homestead, has caused no
difficulty; the Supreme Court has held that a deed or mortgage of homestead
property is duly executed when it complies with the statutory requisites for
such instruments in effect at the time of execution.238 Under the present law
the usual deed of homestead, like any other intervivos
conveyance of "an estate or interest of freehold, or for a term of more
than one year, or any uncertain interest of, in or out of" real property,
must be evidenced by a writing signed by the grantor in the presence of two
subscribing witnesses.239
Question may arise as to the enforcement of an
equitable mortgage against homestead property. Section 697.01, Florida Statutes
1941, provides in effect that all instruments of writing conveying or selling
property for the purpose of securing a debt shall be regarded as mortgages; and
this statute has been applied to an absolute deed purporting to convey
homestead property.240 The statute is simply a legislative adoption of a
well-established principle of equity, by which a mortgage is created,
regardless of the form of the instrument, whenever the transaction is in fact a
security device.241 To be sure, the statute does contemplate evidence by a
writing; but parol evidence is admissible to show the
true nature of the dealings between the interested parties.242
238New York Life Ins. Co. v. Oates,
122 Fla. 540, 166 So. 269 (1935), remanded on rehearing,
122 Pla. 565, 166 So.
279 (1936); Shad v. Smith, 74 Fla. 324, 76 So. 897 (1917).
239FL,. STAT. §689.01 (1941).
240First Nat. Bank of Florida v. Ashmead, 33 Fla. 416, 14 So. 886
(1894), in which case the wife joined in the execution of the absolute deed.
F74. STAT. §697.02 (1941) provides that a mortgage shall constitute a lien
rather than a conveyance of title or of the right to possession.
241E.g.: Torreyson v. Dutton, 145
Fla. 169, 198 So. '/96 (1940); Vanderpool
Properties, Inc. v. Hess & Slager, Inc., 100 Fla. 933, 130 So. 457 (1930); Pittinan v. Milton, 69 Fla. 304, 68 So. 658 (1915); Connor v. Connor, 59 Fla. 467, 52 So. 727 (1910); Hull v. Burr, 58 Fla. 432, 50 So. 754
(1909).
242First Nat. Bank of Florida v. Aalimead, 33 Fla. 416, 14 So. 886 (1894); as
[*64] Although in some jurisdictions an equitable
mortgage of realty has been permitted to rest on a were
parol agreement accompanied by part performance, 243
enforcement of such a mortgage against Florida homestead property in the normal
course of events is unlikely. It is submitted that an equitable mortgage of a
homestead estate in realty necessitates either (1) an obligation falling within
the classes excepted by Section 1 of Article X,244 or
(2) creation in accordance with the requirements of joinder
and due execution. In each of the cases cited in note 241 supra a written instrument was signed by the owner of the homestead,
as well as by the spouse of such owner whenever the relation of husband and
wife existed. Nevertheless, provided a transaction itself can be accomplished
by parol as a matter of property law, there is no
logical reason why parol consent should not
constitute due execution.
Since the Supreme Court of Florida has committed
itself to the principle that the homestead provisions apply to any interest
that the head of a family residing in Florida may have in his dwelling,245 it is reasonable to infer that leasehold interests for
less than one year may be subject to the homestead laws and to assume that
transfer of at least some such interests, including consent thereto, may be
effected by parol.246 The same principle should apply in the case of other
interests in land not covered by the Statute of Frauds247 or by other enactments
of the Legislature. In the doubtful event that parol
alienation should prove to be undesirable in such instances, correction should
be made by statute; the judiciary should not be burdened with the task of excepting homestead property, on grounds of policy, from the
established rules of property law.
Joinder of Spouse. To enjoy exemption as a homestead, and to be subject
to the restraints placed upon its alienation, the dwelling need not be stated in Markell v. Hilpert, 140 Fla. 842,
855, 192 So. 392, 398 (1939), this is the equity rule, quite apart from any
statute.
243Walsh, Morgages 45-46
(1934); 1 Jones, Mortgages §227 (8th ed. 1928).
244An
equitable lien arising in part out of funds advanced without any writing and
used in purchasing homestead realty was allowed in Sonneman
v. Tuszynski, 139 Fla. 824, 191 So. 18 (1939); see
Porter v. Teate, 17 Fla. 813, 818 (1880) (dealing
with similar provisions of the Constitution of 1868) ;
cf. the discussion of Purchase Obligations in Part I, 1 supra.
245See
Part 1, 4 supra.
246FLA.
STAT. §689.01 (1941) requires a writing for only those
terms of more than one year. See FLA. STAT., c. 83
(1941) for effect of oral lease.
247FLA.
STGAT. §689.01 (1941)
[*65] owned by a married person.248 A homesteader may
convey or mortgage the homestead by means of an instrument executed by himself
or herself alone if unmarried at the time; but when he or she does have a
spouse, the Constitution requires that such spouse join in the execution of a
deed or mortgage conveying or encumbering the property.249 The manner in which
the joinder of a spouse must be evidenced is, like
the manner of execution, determined by the law in effect at the time of
alienation.250 The deed or mortgage should of course be signed by the spouse,
and it is also customary to mention the spouse in the body of the instrument as
a party to the transaction. Mere form, however, is not alone sufficient. The
language of Section 1 of Article X indicates that something more than a mere
form is contemplated. "Joint consent" of husband and wife is
necessary. Thus, while the execution of an instrument by a wife is prima facie
evidence of her joinder,251 proof that the execution
was not voluntary obviously invalidates the instrument.252
Joinder by the husband is necessary in the alienation of
homestead property owned by his wife.253 The fact that
the manner of joinder in such a case has not been
seriously questioned, however, indicates that this phase of the matter is well
understood. The alienation is effectual if the husband consents to the
transaction and demonstrates his consent by signing the deed or mortgage. In so
far as the body of the instrument is concerned, joinder
by a wife is accomplished in exactly the same manner as joinder
by a husband-consent evidenced by a voluntary signature; but for a long time in
Florida acknowledgment on the part of a man and acknowledgment on the part of
his wife were each governed by different rules.
248See
Part I, 2 supra.
249FLA.
CONST. Art. X, §1, 4. These sections expressly require
joinder when, and only when, the owner of the
homestead has a spouse. That the homesteader has children or other dependents
living with him is immaterial in this connection.
250See
note 238 suPra.
251New
York Life Ins. Co. v. Oates, 122 Fla. 540, 555, 166 So.
269, 275 (1935). This opinion of Whitfield, J., was
approved on rehearing, 122 Fla. 565, 166 So. 279 (1936), as correctly stating the law. Ultimately, on the
fifth appeal, a final decree for the mortgagee was affirmed, 144 Fla. 744, 18 So. 681 (1940).
252Shad
v. Smith, 74 Fla. 324, 76 So. 897 (1917); see New York
Life Ins. Co. v. Oates, 141 Fla. 164, 182, 192 So. 637, 645 (1939).
253FLA.
CoNsr. Art. X, 4. The sex of
the homesteader, who must be both the owner and the family head, is immaterial;
cf. Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13 (1940).
[*66] Acknowledgment. The general rule in Florida is
that acknowledgment by the person executing an instrument is necessary for
purposes of recordation only.254 Acknowledgment by a husband accordingly does
not affect the validity of the instrument; his valid execution is sufficient to
pass title to the property in question except as against subsequent creditors
and good-faith purchasers, who are protected by the recording act.255
Prior to the year 1943 not only were separate
examination and acknowledgment required of a wife not a free dealer256 in order
that a deed be eligible for recording, but these steps were also treated as an
indispensable part of the transfer, regardless of whether the wife was mortgaging
her separate property257 or relinquishing her dower rights,258
or joining in the alienation as a tenant by the entirety259 or as the spouse of
the owner of a homestead.260 A deed signed by the wife but showing no eparate acknowledgment therefore failed to pass the wife's
interest.261
In 1943 the Legislature enacted a statute placing a
married woman's acknowledgment on the same footing as that of a single person
and dispensing with the requirement of a separate examination.202 The last
section of this statute contains a curative clause validating all prior
acknowledgments taken in accordance with these provisions unless questioned in
a court of competent jurisdiction within one year after May 13, 1943. There is
no reason to question the prospective operation of this statute; and although
attacks from the constitutional angle against the
254FL
A. STAT. §695.01 (1941); Black v. Skinner Mfg. Co., 53 Fla. 1090, 43 So. 919 (1907) ;
Licata v. de Corte, 50 Fla. 563, 39 So. 58 (1905).
255Ibid.
256.
Cf. FLA. STAT. §62.27 (1941) ; today §62.38 -62.46
(Cum. Supp. 1947) prescribe the procedure for becoming
a free dealer.
257
FLA. STAT. §693.03 (1941); see Pritcheit
v. New York Life Ins. Co.,
125 Fla. 653, 665, 170 So. 700, 705 (1936).
258FLA.
STAT. §693.02 (1941), Foxworth v. Maddox, 103 Fla.
32, 137 So. 161 (1931).
259Newman
v. Equitable Life Assurance Soc'y, 119 Fla. 641, 160 So. 745 (1935).
260Hutchinson
v. Stone, 79 Fla. 157, 84 So. 151
(1920); Shad v. Smith, 74 Fla. 324, 76 So. 897 (1917).
261One
interesting distinction between a conveyance of homestead and of other real
property owned exclusively by a husband is that in the latter case non-joinder or defective joinder by
the wife renders the transaction ineffectual as to her dower interest only,
while in the former case the entire transaction is void.
262FLA.
STAT. §693.03 (Cum. Supp. 1947). This enactment, effective May 13, 1943, was
not considered in Berlin v. Jacobs, 156 Fla. 773, 24 So.2d 717 (1945), with
most confusing results from the standpoint of the practitioner; cf. Comment, 21
FLA. L. J. 216 (1947).
[*67] retroactive implications of its curative clause
are possible, this danger is not of major proportions today.263
On May 11, 1943, an act was passed, effective
immediately, purporting to authorize husband and 'wife to give powers of
attorney to each other, and when thus empowered to execute and acknowledge
deeds to property owned by either spouse separately or by both as tenants by
the entirety.26 On June 4 of the same year this provision was included as
Section 2 of a broader statute, 265 which, however, provided in Section 3 that
it was not to be construed as "dispensing with the joinder
of husband and wife in conveying or mortgaging homestead property." The
limitation was recognized in Jacobs v. Berlin266 as an essential step in
upholding a decree of the chancellor denying enforcement of specific
performance of a contract executed by a married woman alone to convey realty
that was in part homestead.
3. The Supreme Court Rules of Descent
Second to only the Supreme Court Rules of Practice are
the Supreme Court rules of descent, as far as the practitioner is concerned.
The Constitution itself places but one limitation on the alienation of the
homestead while its owner is alive, namely, that whenever he or she has a
spouse the joint consent of both, and due execution by both, are required.267
Disposition by will is forbidden by the Constitution in a backhanded manner
unless the homesteader is "without children, 11268 while devise so as to
cut off either his "lineal descendants" or his wife is checkmated by sta-
263Detailed discussion of this matter is outside the
scope of this article; see generally FLA. CONST. Art. III, §33; Mahood v. Bessemer Properties, Inc.,
154 Fla. 710, 18 So.2d 775 (1944); Campbell v. Home, 147 Fla. 523, 3 So.2d 125
(1941); Lee v. Lang, 140 Fla. 782, 192 So. 490 (1939);
Rogers, Florida Curative Statutes, 22 Fu. L. J. 153 (1948).
264FLA. STAT. §708.09 (Cum. Supp. 1947), passed as c.
21696, §1, of Fla. Laws 1943.
265FLA. STAT. §7O8.O8-708.10 (Cum. Supp. 1947),
enacted as Fla. Laws 1943, c. 21932; see Comment, I U. of Fla. L. Rev. 108
(1948), as to conveyance of homesteads held by the entirety.
266 158 Fla. 259, 28 So.2d 539 (1946). The reasons given in this opinion explain correctly
for the first time the practical result reached by inadvertence in Berlin v.
Jacobs, 156 Fla. 773, 24 So.2d 717 (1945) ; cf. note
262 supra. Apparently the decisive issue of fact, namely, the
honestead character of a portion of the property
involved, was not raised by counsel at the outset.
267Art. X, §1 (consent), §4 (execution).
268FLA.CONST. Art. X, §4.
[*68] - tute.269
The exemptions . . . shall inure to the widow and
heirs,"270 provided any property passes to them; but nowhere does the
Constitution prescribe that any property must pass. What the electorate chose
not to prescribe, however, the bench has supplied-by a process as clever as it
was gradual, and at least as dubious as devious.271
Early History. In 1897 Mr. Chief Justice Taylor, after
analyzing the previous leading cases, concluded that they272
". . . settled the doctrine in Florida that the
homestead provisions of our Constitution do not undertake to cast an estate in
the exempted properties upon the widow or heirs . . . ."
Some seven years later he succinctly stated the law as
follows:273
269FLA.
STAT. §731.O5, 731.27; cf. §731.34 (Cum. Supp. 1947);
see note 189 supra.
270FLA.
CONST. Art. X, §2.
271A
searching criticism of this judicial transmutation, even today unanswered from
the standpoint of logic, is found in Tribble,
Homestead Law in Florida as a Restraint of Alienation, 5 Fr. L. J. 37 (1931).
272Hinson
v. Booth, 39 Fla. 333, 347, 22 So. 687,
692 (1897). Although the decision turned on the authority to will
homestead personalty, the relationship between personalty and realty was carefully dissected. Speaking of
the provisions governing both the realty and personalty
exemptions, the opinion, immediately after the passage quoted above, continued:
". . . or to regulate or establish their rights of
property inheritance therein, but that such rights must be ascertained from
other sources, viz: The statutes regulating dower and
the laws of descent, but that all that inures to the widow and heirs under the
second section quoted from the Constitution is the right to exempt the property
from forced sale for the debts of the deceased head of the family. The widow
and heirs, on the death of the pater familias, acquire their proprietary rights of property in
the things exempted, not from the constitutional provisions quoted, but
entirely from the statutes regulating dower and the descent of property,
unaffected by such constitutional provisions, except that the latter instrument
appends to the things exempted, in their transmission to the widow and heirs,
the feature of immunity from forced sale for the debts of the ancestor."
In Claflin v. Ambrose, 37
Fla. 78, 88, 19 So.
628, 631 (1896), conveyance of the homestead by husband and wife to the wife
via a third party, without consideration, was held not to constitute fraud on
his creditors. In dismissing their bill the Court sustained the conveyance, but
unfortunately the question of the claims of heirs, if any, did not arise.
Noteworthy general analyses are listed in note 180 supra.
273Palmer
v. Palmer, 47 Fla. 200, 204, 35 So. 983,
985 (1904).
[*69]
"The effect of the constitution of 1885 in so far as the homestead is
concerned, where the relation of husband and wife exists, and where there is a
child or children, is to compel such homestead to inure to the widow as widow,
and to the hefts, unless the consent of the wile can be obtained to its
alienation in the lifetime of the husband, and where such alienation does not
take place, compels intestacy so far as such homestead is concerned by
prohibiting its alienation by will."
His summaries were strictly accurate at that time, and
the Constitution has not been altered one iota since then as far as these
provisions are concerned. The law, however, has been radically changed.
To be sure, the decisions themselves continued on a
sound basis for many years. They involved either attempts at conveyance between
husband and wife without the due execution by both expressly required by the
plain English of Section 4 of Article X,274 or
purported dispositions, in fact testamentary but feebly disguised as intervivos conveyances.275 The costume for the new
principle, which finally appeared in full dress in
274E.g., Thomas v. Craft, 55 Fla. 842, 46 So. 594 (1908). This was followed by Byrd v.
Byrd, 73 Fla. 322, 74 So. 313 (1917), Jabn v. Purvis, 145 Fla. 354, 19* So. 340 (1940),
and Estep v. Herring, 154 Fla. 653, 18 So.2d 683 (1944); in this last case the
direct conveyance of' real estate from husband alone to wife, allegedly made
pursuant to FLA. STAr. §689.11 (1941), was invalidated as to homestead realty. The 1947
amendment to this section (Cum. Supp. 1947), discussed in Note, I U. or Ira. L.
Rzv. 433 (1948), is still governed by this holding,
inasmuch as the Constitution cannot be changed by statute even expressly, much
less by mere implication. The decisions upholding conveyance from husband alone
to wife have rested on the factual finding below of abandonment of the property
as the home prior to conveyance. E.g.: Knowlton v. Dean, 31 So.2d 58 (Fla. 1947),
discussed in Comment, 1 U. of Fla. L. Rev. 108 (1948); Lanier v. Lanier, 95
Fla. 522, 116 So. 867 (1928); Semple
v. Semple, 82 Fla. 138, 89 So. 638 (1921); Rawlins v. Dade Lumber Co., 80 Fla. 398, 86 So. 334 (1920) (alternatively decision was based on consideration moving
from wife plus absence of fraud, the attack on her title coming from creditors
of ex-husband, who had conveyed homestead to her just before divorce and well
prior to judgment for creditors).
'"One such type, Identified by failure to deliver
the deed until the death of the grantor, was denuded in Norton v. Baya, 88 Fla. 1, 102 So. 361 (1924); another, characterized
by reservation of the beneficial interest and power to revoke, came to grief in
Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914), in which the alleged conveyance
was judicially termed a testamentary disposition and the cause was remanded for
determination as to whether the trustor was in fact
the head of a family upon his death following that of his wife. He was later
found not to be, 72 Fla. 530, 73 So. 603 (1916).
[*70] Church v. Lee,276 was
carefully fabricated piece by piece in a series of dicta confusing the perch
with our chameleon, that is, the homestead property with the homestead
exemption, and gradually building up the impression that whenever a chameleon
might conceivably appear a perch on which he could rest had to be furnished in
order to comply with the dictates of organic law.
Consideration and Voluntary Transfer. Until the third decade of the century the sailing in
homestead waters was reasonably dear. No one questioned the necessity of joinder by the wife in consenting to and executing a
conveyance of the homestead, even when she was the transferee.277 And after
Palmer v. Palmer278 there was no doubt as to the inability of a testator to
devise his homestead realty when he left children surviving. That these two
principles could be connected, however, was not realized. until
the doctrine of consideration was brought into the picture, in aid of the
carefully nurtured fusion, or rather confusion, of the homestead property and
the homestead exemption.
In Hutchinson v. Stone279 Mr. Justice Whitfield,
speaking for the full Supreme Court, begins to develop the notion that the
"exempt property is for the benefit of the 'heirs' as well as of the
'widow' of the owner." Within four months, in sustaining a conveyance to
the childless wife by the husband alone in Rawlins v. Dade Lumber Co.,280 he inserts the dictum that the inurement
of the exemption constitutes the "reason" for the rule that "when
there are children or a child of the husband a conveyance of homestead real
estate to the wife by the husband alone is void under the Constitution . . .
." Of course, the obvious reason for requiring joinder
of the spouses is that the Constitution specifically says so,
prosaic though such a simple explanation may sound. Conveyance by the husband
alone is forbidden regardless of whether his heir apparent is a son or only a
beloved aunt. It might be added that the actual decision in the
276 102 Fla. 478, 136 So. 242 (1931).
277See
note 274 supra.
278 47 Fla. 200, 35 So. 983 (1904). He must, of
course, be the head of a family in order to qualify as a homesteader; see Part
I, 2 supra.
279 79 Fla. 157, 165, 84 So. 15!, 153 (1920) (mortgage of
homestead not a valid alienation unless acknowledged by wife pursuant to
statute then in effect).
280 80 Fla. 398, 403, 86 So. 334, 336 (1920) (conveyance of
homestead to wife by husband alone held valid when he had left her permanently
and was not residing on the homestead when he executed the deed).
[*71] case correctly rests on abandonment of the
homestead by the husband.281 The dissent of Mr.
Justice Whitfield in Semple v. Seinple282 refers to
the existence of children in Byrd v. Byrd283 as contrasted with the Rawlins
case. Once again the real issue was abandonment rather than the existence of
offspring, but his dissent concludes with a passage emphasizing the presence of
a child.284
In his concurring opinion in Norton v. Baya the transmutation takes on more definite form by
proscribing a "voluntary" conveyance,285
especially when the following passage is eamined:280
"The
children of the owner who are his statutory 'heirs,' have a right and an
interest in the homestead real estate exemptions that are secured by the Constitution,
and the owner cannot transfer the property to another except by the alienation
that is expressly provided for in which the wife must join. And the joint deed
or mortgage of husband and wife required by the Constitution, necessarily
contemplates an alienation to others than the wife, at least where the
conveyance to her is without consideration and there are children to whom as
heirs together with the widow the exemption by the express terms of the
Constitution, 'shall inure' at the death of the owner;"
In Jackson v. Jacksonr7 the Court was again confronted
with a so-called voluntary transfer by both parents to a third party, who had
in turn conveyed to the wife without consideration. In this case, for the first
time, the issue of failure to deliver the deeds played no part in the opinion;
no attempt was made to call them a mere testamentary transfer in fact.
Nevertheless the Court unanimously affirmed their cancellation; and the
opinion, again by Mr. Justice Whitfield, lays down the following principle:288
"The
transaction in this case does not constitute 'such an aliena-
281Whitfield,
J., admits this himself in Norman v. Kannon, 133 Fla.
710, 716, 182 So. 903, 905 (1938).
As to what constitutes abandonment see Part I, S supra.
282
82Fla. 138, 145, 89 So. 638, 640
(1921).
283 73 Fla. 322, 74 So. 313 (1917).
284 82 Fla. 138, 148, 89 So. 638, 641 (1921).
285 88 Fla. 1, 10, 102 So. 361, 364 (1924).
286Id.
at 11, 102 So. at 364.
287 90 Fla. 563, 107 So. 255 (1925).
288Id.
at 569, 107 So. at 257.
[*72]
-tion of the homestead as is required by the
Constitution to accomplish that result. If given effect it would operate to
transfer the legal title to the homestead from the husband to
the wife, stripped of its homestead status or character, thereby converting her
interest therein into absolute ownership, and divest his children, who
are his prospective heirs, of the interest which under the Constitution, inures
to them. This is so because the homestead must be owned by the head of the
family and the exemption inure to his widow and heirs."
In spite of the cases cited in support of this view, a
new concept here makes its way into Florida law. Our little chameleon, which
less than twenty years before was only a gleam in the eye of our famous
justice, has grown from a mere expectancy of exemption, on through the
adolescent period of contingent remainder, sometimes in the exemption but
gradually in the property, until now he becomes a full-fledged estate, a sort
of vested remainder in the property, defeasible under
certain conditions only. 289 To the constitutional lawyer he may seem rather
misshapen, and to the property lawyer he is no doubt a monstrosity, but at all
events he is with us.
The stage is now set for the inevitable climax. The
law professes to abhor fictions until popular desire for a different practical
result demands recognition, whereupon some cloak must be produced to square the
change with the time-honored theory of static rules, the doctrine that judges
never make law-they merely apply it.290 The evil straw-man of Norton v. Baya and Jackson v. Jackson 291 can now be removed from the
east, and in the final scene the due alienation by husband and wife together,
specifically authorized by Section 4 of Article X, is defeated in single combat
by our hero, lack of consideration, with those ringing lines reminiscent of
Daniel Webster: 292
289The
extreme to which this misconception has gone is well illustrated by the
following sentence from the dissent in Miller v. Mobley, 136 Fla. 351, 355, 186
So. 797, 799 (1939): "Section 2 of Article 10 of
the constitution of Florida provides that the homestead shall inure . . . ." The exemption has become lost in the shuffle.
290For
a realistic analysis of the judicial mind at work see Jerome Frank, A Sketch of
an Influence, Max Rheinstein, Who Watches the
Watchmen, and Carlos Cossio, Phenomenology of the
Judgment, in Interpretations of Modern Legal Philosophies 189, 589, 85 (Sayre
ed. 1947), reviewed in 1 U. of Fla. L. Rev. 111 (1948).
291 88 Fla. 1, 102 So. 361 (1924), and 90 Ha. 563, 107 So. 255 (1925), respectively.
292Church
v. Lee, 102 Fla. 478, 486, 136 So. 242,
246 (1931) (holding for the first time that a duly executed conveyance by
husband and wife direct to the wife, without consideration, is void when there
are children).
[*73]
"if an act is not permitted to be done indirectly
it follows that it may not be done directly."
This judicial conversion of a constitutional exemption
from forced sale into a rule of descent has been vigorously attacked right up
to the present time, but with little or no success. Nor has it mattered whether
the conveyence was direct to the wife293 or via a
straw-man.294
How, then, can the head of a family avoid this rule of
descent? For one thing, he and his wife can take the property as an estate by
the entirety, provided they do so deliberately at the outset, before the head
of the family has the misfortune to acquire the homestead in his own name. One
would have expected to find this also condemned as a patent conspiracy to circumvent
organic law, but the Supreme Court has balked at pushing its brainchild to a
logical conclusion.295 Again, the homestead can be abandoned, in which event
the head of the family can dispose of it without hindrance from our
"constitutional" law of descent.296
293Ibid.
294Florida
Nat. Bank of Jacksonville v. Winn, 158 Fla. 750, 30 Sold 298
(1947); McEwen v. Larson, 136 Fla. 1, 185 So. 866
(199); Norman V. Kannon, 133 Fla. 710, 182 So.
903 (1938) ; Bess v. Anderson, 102 Fla. 1127, 136 So.
898 (1931) ; Hart v. Gulf Fertilizer Co., 91 Fla. 991,
108 So. 886 (1926).
295Knapp
v. Fredricksen, 148 Fla. 311, 4 So.2d 251 (1941);
Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932). In the latter case the facts include transfers
through a third party from husband to wife, and later from the wife via a third
party to husband and wife as tenants by the entirety, shortly before the lot
was rendered homestead by construction of their home thereon; obviously the
sole purpose of this double shuffle was to insulate the second Mrs. Rodriguez
from any possible descent claims by the children of her husband's first
marriage, but the process received judicial blessing. See Norman v. Kannon, 133 Fla. 710, 714, 182 So. 903,
905 (1938), in which the line is clearly drawn.
296In
Miller v. Mobley, 136 Fla. 351, 186 So. 797 (1939),
the Menendez v. Rodriguez maneuver described in the preceding footnote was
again pulled off in favor of the second wife, this time by selling the home for
34 months and then buying it back, largely by canceling the original
purchase-money mortgage and notes (Chapman and Whitfield, J. J., dissenting).
Prior to legal separation, in Jordan v. Jordan, 100 Fla. 1586, 132 So. 466 (1931), the departure of the second wife from the
homestead, leaving her husband alone long enough to enable him to convey the
home via a straw-man to himself and her as tenants by the entirety while he was
not the head of any family, was unanimously held sufficient to cut off all
homestead claims of his children by a former marriage. Following the transfer
she returned to the apartment house, although according to the opinion marital
relations were not resumed. Still another type of abandonment appears in
Anderson Mill and Lumber Co. v. Clements, 101 Fla. 523, 134 So.
588 (1931).
[*74] Or the homesteader and spouse may prefer to deed
it outright to some of their children, reserving as grantors a life estate.297
Finally, of course, the spouses may simply sell the
homestead, in which event it has been stated by way of dictum that "the consideration
takes the place of the exempted property and the Constitution may not thereby
be violated."298 Limited to nothing more than a pious hope that somehow
the children will receive some benefit from the proceeds of the sale, this
remark is accurate, though not of profound significance; but if construed to
mean that the e4xemptions attaching to homestead realty follow the personalty derived from its sale, the statement is
definitely misleading as regards both descent and exemption from forced sale. Only
in exceptional instances does personalty step into
the shoes of the realty from which it is derived.299
Article X specifically distinguishes between realty
and personalty in creating the exemptions, and the personalty exemption is expressly limited to $1,000. And,
as we shall see in Part III, there are no constitutional restrictions on
bequests of homestead personalty. The true principles
of law is that, once homestead realty is duly alienated during the life of its
owner, any proceeds other than real property received in exchange are obviously
personalty, and are governed entirely by the
homestead provisions relating to personalty.
The foregoing exposition of the method by which the
judicial rules of homestead descent were established admittedly does not prove
that the results are necessarily unfortunate or unwanted. Basically, the issue
involves a determination as to whether the homestead provisions are designed
primarily to enable the family breadwinner to continue to win bread, or whether
they aim at another major objective, namely to keep family property in the
family from generation to generation.300 On principle, however, these rigid
restrictions are difficult to justify. Unlike
297 Daniels v. Mercer, 105 Fla. 362, 141 So. 189 (1932) (direct conveyance), followed in Parrish
v. Robbirds, 146 Fla. 324, 200 So.
925 (1941), and Jones v. Equitable Life Assurance Soc'y, 126 Fla. 527, 171 So. 317
(1936) (alternative holding; also conveyance was via third party). In
the first two cases mentioned consideration was found; in the third it was
overlooked, but the decision does not necessarily eliminate the necessity for
consideration.
298Norman
v. Kannon, 133 Fla. 710, 716, 182 So.
903, 905 (1938).
299Kohn
v. Coats, 103 Fla. 264, 138 So. 760
(1931) (fire insurance proceeds).
300As
has just been noted, their efficiency in the latter event is seriously impaired
by the use of the estate by the entirety, the doctrine of abandonment, and the
lack of any constitutional restraint on testamentary disposition of homestead personalty.
[*75] the disposition of the estate of a decedent,
which the Legislature may freely control,301 the
ownership of property by a living person comprehends an inherent right to
manage and transfer that property.302 Ownership is of course subject to the
overriding needs of the society possessing jurisdiction of the property, but
the judiciary should not lightly tamper with the right of an individual to
alienate his property unless the necessity for restraint is made clear by
constitutional or statutory provisions or by unequivocally expressed demands of
public policy.
The fact remainc that
neither by the Florida Constitution nor by the acts of the Legislature is a
voluntary transfer of homestead property expressly prohibited. Instead, the
Constitution provides protection for the family by requiring the spouse of the
homesteader to join in the execution of a deed or mortgage alienating the
homestead. This important phase of the family welfare is left, as the framers
of the Consitution obviously intended it should be,
to the joint discretion of those who create the family. To circumscribe this
discretion arbitrarily has quite the reverse of a beneficial effect on the
family itself, in spite of the admitted fact that in the odd instance judicial
condemnation has proved an effective means of forestalling a designing second
wife seised of a husband whose chief virtue appears
to be docility. The burden of ever-increasing taxation on the family as a whole
is often relieved by a timely transfer of the homestead; and a widow may well
live in misery under an expensive family roof, the grandeur of which vanishes
with her husband.30 In the final analysis, these conflicting policies are bet
sorted by the electorate or by the legislature; the function is not one to be
assumed by the bench.
An encouraging note was struck recently in the
dissenting opinion of
Mr. Justice Terrell, joined by Mr. Justice Chapman, in
Florida National
Bank of Jacksonville v. Win, presenting for the first
time in many years a realistic analysis of 'what was prescribed when the
Constitution was adopted:301
"This
court is committed to the doctrine that these provisions of the Constitution
permit alienation of the homestead by deed or
301See
note 181 supra.
3O2In
Hinson v. Booth, 39 Fla. 333, 22 So. 687 (1897),
although the decision has been distinguished in later homestead discussions on
the ground that it deals with personal property, this generally recognized
principle is clearly expounded.
303E.g., Cowdery v. Herring, 106
Fla. 567, 143 So. 433 (1932).
304 158 Fla. 750, 752, 30 So2d 298, 299 (1947). The decision permitted an adult
[*76]
mortgage; that parents without children may dispose of it by will, but if they
have children, minors or adults, they may not dispose of it by will, neither may
they dispose of it through a conduit or otherwise without consideration. Jackson v. Jackson, 90 Fla. 563, 107 So. 255. Nor may a man
with wife or child surviving him make testamentary disposition of the
homestead. Norton v. Baya, 88 Fla.
1, 102 So. 361.
"In
my view there have been unwarranted inferences drawn from these and other
decisions affecting the homestead. Certainly the homestead was designed for the
benefit of the family, to preserve its finest traditions, but the constitution
imposes only two limitations on its preservation; (1) Exemption from forced
sale under process of any court, and (2) Alienation by joint consent of husband
and wife if that relation exists."
Even so, however, this statement admits that the
Supreme Court rules of descent remain in full force as applied to a voluntary
conveyance from both spouses to the wife. In the language of laymen, the
exemption is, at the outset, merely the tail on the dog; and obviously there
can be no tail without a dog. By concentrating on the tail, one then easily
slides into the notion that there can be no dog without a tail. Once this false
daughter, married and living apart for over twenty years, to
burke a conveyance of the homestead by her widowed father and his second wife
to the wife via a third party, followed by her promised devise thereof to the
City of Cocoa for a public Use. Terreil, J.,
continued:
"There
is no suggestion here that the alienation by the Taylors
was irregular or done for a fraudulent purpose. The Constitution does not require
consideration as a basis of alienation of the homestead. This idea was
doubtless injected into some of the decisions because of fraud or overreaching;
otherwise it was mere surplusage and has no
application here. There is not a word in the Constitution to warrant the
suggestion that an adult child may thwart the desire of a parent in the matter
of disposing of the homestead by deed. The Constitution imposes no limitation
whatever on alienation and this court should impose none unless the purpose of
the homestead is about to be overthrown. The fact that exemption from forced
sale may inure to the widow and heirs imposes no restraint on alienation.
"The
makers of the constitution did not know much about formal ethics but they knew
their own mind and ruled their own household. It is contrary to all human
experience to contend that they wrote anything in the constitution that would
warrant one in thinking that a child long departed from the family tree might
return and thwart a transaction made like this in good faith. They were not a breed that subscribed to
junior rule."
[*77] step in taken, the rest is simple. Since the tail and the dog are
inseparable, therefore, wherever a tail might appear by inurement,
there must be a dog on which to hang it. The result is that the tail wags the
dog.
Today the one remedy, unless numerous precedents can
be overruled, is the adoption of a constitutional amendment by the citizens of
Florida, restating what they set forth in 1885, but so worded as to demonstrate
clearly that they are creating an exemption from forced sale and not enacting
by implication a rule of succession.
PART III -- EXEMPTION AND TRANSFER OF HOMESTEAD
PERSONALTY
1. Exemption from Forced Sale
In addition to the exemption from forced, sale of
realty and the improvements thereon, Section I of Article X of the Florida
Constitution creates a personalty exemption. The
pertinent language is "together with one thousand dollars worth of
personal property . . . ." At the outset it
should be noted that the words "together with" do not mean
"together with" at all; our chameleon can find adequate footing on personalty alone, and the lack of real property does not
bar an exemption of the personalty.305
What constitutes personalty
is admittedly not a simple problem, but it does not rest on any special
characterization peculiar to the law of homesteads. Rather recently
"paintings, etchings, statutory [sic], rugs, draperies, silverware, china,
linens, -and furniture" were categorized as personalty.306 In arriving at
the $1,000 limit, "cash, furnishings, or any other personalty"307
should be included in the inventory, including money and choses
in action.308 Even issuance of a cashier's check, provided payment be stopped,
does not prevent exemption of credit in the bank.309 Products of land on the
land, to be sure, follow the land, and a lessee
305Seashole v. O'Shields,
139 Fla. 839, 191 So. 74 (1939);
Sneed v. Davis, 135 Fla. 271, 274, 184 So. 865, 867
(1938) (allegation of ownership of "no property of value other than the
stock in question" upheld as a valid defense against creditors;
"property" of course includes realty as well as personalty).
306Richards v. Byrnes, 153 Fla. 705, 707, 15 So.2d 610
(1943).
"Statutory" is an obvious misprint for "statuary." The
question was certified to the Supreme Court as one without precedent, pursuant
to Rule 38 of the Supreme Court Rules of Practice.
307Id. at 707, 15 So.2d at 611.
308FLA. STAT. §222.06 (1941).
309Tracy v. Lucik, 138 Fla.
188, 189 So. 430 (1939).
[*78] cannot claim them as personalty;310 for the same reason they descend as homestead realty
rather than as personaity.311
Since, however, the personalty
exemption created by Section I of Article X does not bar the Legislature from
creating other exemptions, the proceeds and cash surrender values of life
insurance policies are separately placed beyond the reach of creditors of the
insured unless effected specifically for their benefit;312
and as of June 9, 1941, this protection was extended to disability income
benefits accruing from any form of insurance.313 Constitutional objections to
these statutes have been firmly rejected.314
The freedom from garnishment or attachment of
"any money or other thing due to any person who is the head of a family
residing in this state" for labor or services315 has been held by an equally
divided Supreme Court, 316 affirming judgment below, to embrace salaries of
"white-collar" workers, with the dissent bowing graciously to the
insidious philosophy, palmed off in the United States during the past fifteen
years, that the only person that renders services is one who uses his hands and
his back almost exclusively and his head as little as possible.
Specific personalty can be
mortgaged, for reasons thoroughly expounded in Patterson v. Taylor, 317 but a
blanket waiver of the benefit of any law was flatly declared a nullity as
against the homestead exemption as far back as 1884.318 Both decisions stand
unquestioned today.319
310Hodges
v. Cooksey, 33 Fla. 715, 15 So. 549 (1894); Cathcart v. Turner, 18 Fla. 837 (1882) ;
see Howard v. Calhoun, 155 Fla. 689, 693, 21 So.2d 361, 363 (1945) ; Schofield
v. Liody, 35 Fla. 1, 2, 16 So. 780 (1895); as regards
liens on agricultural products raised by a tenant today see FLA. STAT. §83.O8-83.11 (1941).
311Adains v. Adams, 158 Fla. 173, 28 So.2d 254 (1946). Note, however, the holding in Gentile Bros., Inc. v. Bryan, 101 Fla. 233, 133 So. 630 (1931), that a specific mortgage of fruit crops produced by
cultivation of homestead groves is not an alienation of realty, and joinder of the spouse is not required.
3122FLA.
STAT. §222.13, 222.14 (1941). An excellent recent
discussion, by one who knows Florida law, appears in the opinion of Wailer,
Circ. J., in New York Life Ins. Co. v. Valz,
141 F.2d 1014 (C. C. A. 5th 1944).
313FLA.
STAT. §222.18 (1941).
314Milam
v. Davis, 97 Fla. 916, 984, 123 So. 668,
692 (1929); cert. denied sub nom. Tiffany & Co. v. Davis, 280 U. S. 601
(1929).
315FLA.
STAT. §222.11 (1941).
316Wolf
v. Commander, 137 Fla. 313, 188 So. 83
(1939).
317 15 Fla. 336 (1875).
318Carter's Adm'rs v.
Carter, 20 Fla. 558 (1884).
319E.g., Richardson v. Myers, 106 Fla. 136, 143 So. 157 (1932)
(chattel-mortgage
[*79] Apart from mortgage liens and judgment liens,
however, there remains the problem of statutory liens. The lien of a landlord
for unpaid rent was recently considered in Howard v. Calhoun.320 A majority
held premature an action brought by the absent tenant to replevy
furniture, when it was commenced within three months of his departure from the
apartment, specifically because the landlord had not resorted to forced sale
and was permitted by statute to hold the furniture for three months. If limited
strictly to the facts, the decision itself may perhaps be tenable, even though
it avoids by only the narrowest of margins a collision with the unanimous
refusal to limit the exemption to protection against formal and technical
process alone, as enunciated in West Florida Grocery Co. V. Teutonia
Fire Ins. Co. 321
Long ago, in the interpretation of Chapter 3131 of the
Acts of 1879, our Supreme Court soundly decided the issue of substantive law
necessarily involved in sanctioning the sale of personal effects, in spite of
the exemption, merely to collect hotel and apartment rentals. This cogent
reasoning in Hodges v. Cooksey is accordingly quoted:322
"If
the legislature can declare a lien in favor of the landlord for his rent on all
the property of his tenant other than agricultural products, and it follows
that by entering into the rental contract alone the tenant thereby pledges his
property to pay such claim and waives his constitutional right of exemption
therein, then it seems to us that the Legislature can by providing similar
liens to secure the payment of other debts avoid and annul not only the policy
but the plain provisions of the Constitution on the subject of exemptions. Food
and raiment are as essential to life as a habitation and shelter, and we might
find insurmountable difficulty in discriminating against the lien for one class
of demands in favor of the other. The claim for rent was highly favored at the
common law, but we are unable to discover any purpose in the Constitution to
except this demand from those against which the exemptions provided for may be
claimed.
of specified homestead personalty
held enforceable); Lowe v. Keith, 138 Fla. 654, 190 So. 67
(1939) (blanket waiver held ineffective to destroy exemption).
320 155 Fla. 689, 21 Sold 361 (1945), construing FLA. STAT. §85.19, 86.02 (1941) in
relation to Fr CoNsT. Art. X.
321 74 Fla. 220, 77 So. 209 (1917).
322 33 Fla. 715, 723, 15 So. 549, 552 (1894), followed in Schofield v. Liody, 35 Fla. 1, 16 So. 780 (1895).
[*80]
The Constitution exempts to the person entitled thereto one thousand dollars'
worth of personal property from forced sale under any process of law, and the
Legislature cannot indirectly deprive him of such right any more than it can
directly do it."
The forceful dissent of Mr. Justice Adams,323 in which Mr. Justice Buford joined, shows that the
danger did not pass unnoticed in the Howard case. A piece of movable furniture
is by no stretch of the imagination a fructus of the
hotel or apartment in which it happens to be placed. Political scientists might
within reason contend that the basic theory of homesteads is unwise; but to
permit special favoritism to landlords alone, in the teeth of the express
language of Section 1 of Article X, can follow only from disregard of the
elementary principle of the superiority of constitutions over statutes. In
practical effect the Howard decision permits any group of creditors able to
exert the necessary pressure on the Legislature to rewrite the homestead
provisions of the Constitution at will.
The homestead personalty
exemption is not to be confused with personalty in
the form of cash that in reality takes the place of exempt real property,
whether the substitution be occasioned by destruction,824
or by sale of the realty of a deceased homesteader in appropriate circum-
323 155 Fla. 689, 696, 21 So.2d 361, 365 (1945).
324Kohn
v. Coats, 103 Fla. 264, 138 So. 760
(1931). But f. West Florida Grocery Co. v. Teutonia
Fire Ins. Co., 74 Fla. 220, 77 So. 209
(1917), in which these proceeds are regarded as personalty.
The distinction made little practical difference in view of the amount
involved, and the point was not carefully considered. Kohn v. Coats, supra,
decides the issue squarely; the proceeds are clothed with the exemption of the
destroyed realty. Lest one be lulled into a false sense of security as regards
policies placed with insurers outside Florida, however, the warning contained
in Sanders v. Armour Fertilizer Works, 292 U. 5. 190
(1934), should not be neglected. The Illinois
corporate creditor of Sanders, a Texas homesteader, garnished the Connecticut
insurers in Illinois; and their subsequent interpleader
proceedings in a federal district court in Texas resulted ultimately in a
decree there devoting the insurance proceeds to payment of the Illinois default
judgment obtained by Armour in spite of an injunction
of the Texas court forbidding continuance of the Illinois attachment
proceedings. Both the majority opinion and that of the four dissenters are a
bit on the foggy side, but the significant factor is that such a decision can
be reached only by holding that the Texas homestead exemption is procedural
rather than substantive and accordingly need not be recognized elsewhere if
contrary to the law of the forum.
[*81] exceed $1,000 before the unsecured creditors
acquire any right thereto.330
In essence, the homesteader has a cushion of $1,000 in
value limit, upon which our chameleon permanently rests.331 The
substance of the cushion may vary from day to day, but the form and size remain
the same.
2. Transfer Inter Vivos
In the last analysis, though our chameleon is visible
in transfers inter vivos, the fact is that he remains
at home on the $1,000 cushion of the homesteader. His mission is merely to
validate the conveyance; he does not follow the property. Of course, what the
homesteader receives in return becomes stuffing for the cushion; and, as we
have noted, fraudulent conveyances will not be tolerated. The specific portion
of the cushion that is conveyed may seem at first to carry the chameleon with
it, but in the hands of the transferee it is not guarded by the chameleon; its
protection rests on the familiar principle that property of one individual
cannot be seized to pay the debt of another.
To repeat, the cushion may not be overstuffed, nor may
material not in it be transferred in fraud of creditors; but none of the
stuffing ever belongs to the creditors, and accordingly this may be transferred
at will.332
3. Transfer at Death
Our chameleon is rather like a faithful dog; when his
master dies he either remains on the cushion or perishes with his master. He
cannot steer the cushion, as he does in the case of realty; its future
possessor is determined by the homesteader's will333 or alternatively by the
law of intestate succession in Florida.334
In either event the only way to find the chameleon is
to look for all or part of the cushion among the belongings of the widow, the
heirs, or both. To the exact extent of the cushion or any piece of it in their
posses-
330Shollar
Crate and Box Co. v. Passmore, 148 FIa. 466, 4 So.2d 530 (1941); Sneed v.
Davis, 135 Fla. 271, 184 So. 865 (1938).
331Ibid.
332The
matter is well analyzed by Buford, J., in Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938).
333This
is settled in the classic opinion of Taylor, C. J., in Hinson v. Booth, 39 Fla.
333, 22 So. 687 (1897).
334FLA.
STAT. §731.23 (Cum. Supp. 1947).
[*83] sion, he retains his
footing;835 but if his master wishes to bequeath the
cushion to others the law imposes no bar, and the chameleon abdicates in favor
of the rules governing bequests by testators not homesteaders.836 The cushion
or portion thereof must then attempt to pass unescorted; a bequest to others
than the widow or heirs unseats the chameleon at the very moment the testator
dies, and the bequest may accordingly be compelled to yield to the claims of
creditors against the estate.
335Seashola v. O'Shields,
139 Fla. 8.39, 191 So. 74 (1939).
336FLA. STAT. §731.05 (Cum. Supp. 1947); the inurement of the exemption
is not accorded to others than the "widow and heirs" by FLA. CONST.
Art. X, §2.
ARTICLE X
Homestead and Exemptions
SECTION 1. Exemption of homestead; extent,--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. Exemption to inure to
widow and heirs. -- 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.
Section3. Exemptions in former
constitution; applicability. -- The exemptions provided for in the
Constitution of this State adopted in 1863 shall apply as to all debts
contracted and judgments rendered since the adoption thereof and prior to the
adoption of this Constitution.
Section 4. Homestead may be
alienated by husband and wife. -- 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.
Section5. Homestead area not reduced by subsequent
inclusion in municipality. -- No homestead provided for in section one shall be
reduced in area on account of its being subsequently included within the limits
of an incorporated city or town, without the consent of the owner.
Section 6. Legislature to enact laws
to enforce article. -- The Legislature shall enact such laws as may be
necessary to enforce the provisions of this Article.
Section 7. Exemption of homestead
from taxation. -- Every person who has the legal title or beneficial
title in equity to real property in this State and who resides thereon and in
good faith makes the same his or her permanent home, or the permanent home of
another or others legally or naturally dependent upon said person, shall be
entitled to an exemption from all taxation, except for assessments for special
benefits, up to the assessed valuation of Five Thousand Dollars on the said
home and contiguous real property, as defined in Article 10, Section 1, of the
Constitution, for the year 1939 and thereafter. Said title may be held by the
entireties, jointly, or in common with others, and said exemption may be
apportioned among such of the owners as shall reside thereon, as their
respective interests shall appear, but no such exemption of more than Five
Thousand Dollars shall be allowed to any one person or any one dwelling house,
nor shall the amount of the exemption allowed any person exceed the
proportionate assessed valuation based on the interest owned by such person.
The Legislature may prescribe appropriate and reasonable laws regulating the
manner of establishing the right to said exemption.