The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1882-06-27
THE HOMESTEAD.



Wilson, her husband, Appellants, VS. Phoebe
Fndenburg, Appellee-Madison county, trans
ferred from Duval.
i. Under the constitution of this State the
right of wife as to the homestead is confined
to power TO prevent alienation by her husband,
ine head OF the family, without her consent made
Jointly with him. But the constitution does not
however, repeal the statute allowing dover in
the estate OF the husband, and this right exists
as TO the homestead
2. The exemption is from the debts of the
head OF the family, the owner of the homestead
Ii accrues 10 the heirs Of the party having taken
or enjoyed the benefit of it. Where such owner
dies leaving surviving him widow and children,
the right OF the widow if the estate is an intes
tate estate, Is restricted TO DOVER and The benefit
oil The exemption as TO the remainder of The es-
tate IN the homestead, after allowing DOVER
enures TO the benefit of the children.
3. Ii the estate is testate estate and the de-
wise TO the widow is inconsistent with DOVER
then the widow is put to her election between
the will and dover, and if she does not elect
dover within one year after the probate of the
will. she is confined to the will, in which event
the benefit OF exemption as TO the entire home
stead enures To the children, as the homestead is
not the subject of test imentary disposition by
the head of the family
4. Where, in case of the wife surviving the
husband, he dying testate leaving her executrix
with power of sale under the will, she executes
mortgage of the homestead under an order of
court, the children surviving not being parties
to such proceeding, are not bound by it,
3. To all proceedings affecting the homestead
upon the death of the head of the family, his
heirs are necessary parties.
A. W. Cockrell and Geo. o. Walker, for Ap-
pellants; j. f. Hartridge and NJ c. Jordan. for
Appellee.
WEsTcoTT, j., delivered the opinion of the
court.
Converse Parkhurst died testate, in the year
1872, seized and possessed of homestead, situ-
ated upon lot No. 2, in Block 25, in the city OF
Jacksonville, leaving surviving him his widow
Emily r., and tive minor children, Edgar c.
and Daisey h. lie named his widow executrix
and another person executor, and letters tesla
mentary issued on the 2Sth December, A. d.
1872. The executor, however, was on the 18th
January, 1878, and before the execution of the
mortgage which Occasioned this suit, enioined
from acting as such executor
The will directed payment of all just debts of
the testator gave the executrix and executor
full power OF sale of all the real estate of the
testater, and directed that his business at Jack
sonville and Patlaika, Florida, be carried on in
the manner he had conducted il. so long as in
their judgment, it should be deemed best for his
estate. The business was to be closed and set
tied by them whenever they thought best to do
So The other provisions of the will we refer TO
as occasion requires.
After obtaining letters testamentary the widow
and executrix, Emily r. Parkhurst, intermarried
with James Y. Wilson. On the 9th of Novem-
Der, A. d. 1878, the circuit Court for Duval
county, on petition presented" authorized the
late widow of Converse Parkhurst, and execu-
trix, and her husband to borrow from the re-
spOndent the sum OF six thousand dollars, and
to secure the payment thereof by mortgage on
lot No 2, in block 25 in the city of Jacksonville
and the loan and mortgage was accordingly
made. There was default in payment, and this
suit is now brought against the executrix of the
last will of Converse Parkhurst and her husband,
1.-THE children not being parties) to forecOse the
mortgage. The bill does not disclose for what
purpose the loan was made, or the money used
when received, and there is no copy of the record
OF the proceedings upon the petition in the
record OF the case here. The mortgage is an ex-
hbt to the bill and is prayed TO be taken as
part thereof In it there is recital of the ap-
plcatIon by petition, and il is said TO have been
for authority to borrow money TO pay off judg-
ments which had been rendered against the said
estate, and to pay debts, ct ceterd" 1t will be
noted that this order for authority was made on
the 9th of November, A. ID. 1878, while the tes-
tatOr died in 1872. A period of five years had
thus elapsed, and the execuirix and executor, if
they had done their duty, should in this time
have paid the debts of the testator if there were
any, and they had the means to do so, and from
the nature OF the provisions of the will, the pre-
sumption that there were available moneys is
justified.
To this bill the defendants interposed pleas as
follows:
First. That the said testator, who was the head
OF family, owned and enjoyed the premises en-
braced in the mortgage before and at the time of
his death, as homestead for his family, and that
since his death his widow and children have and
are now occupying it as homestead, and that
the lot is 105 feet square
Second. That the minor children were not par
ties TO or IN anvwse represented in the proceed
ing and decree of the 9th of November, A. ID.
1873, nor was il made TO appear that the lot was
| the homestead, or that he left heirs surviving
| members of his family residing with his widow
upon the homestead That the said decree au-
| thorizng the execution of the note and mortgage
referred 10 in said BILL provided in terms as fol-
| lows: 3" That said note and mortgage SO execu-
ted by them, shall have the same force and effect
to all ntents and purposes as though the said Con-
verse L. Devereux, as executor of said last will,
and who has been enjoned by this court for the
time being from attempting to administer said
| estate, had joined therein"
Third. That the funds alleged TO have been
| borrowed from the complainant and secured by
| mortgage, were never applied TO the debts and
liabilities incurred after the death of said Park
| hurst
Fourth A plea setting up that the minor chill
dren are proper and necessary parties, and that
they were not made parties.
The chancellor overruled these pleas. and from
| this action this appeal is prosecuted
| The claim here is that because of the home
stead exemption Of the constitution, this prop
erty is under the circumstances of this case ex.
empt from sale. So far, therefore, as the consti-
tuiion has any bearing upon the matter, it is
necessary here to interpret it
| The exemption clause OF the constitution SO
lar as II affects real estate, and is involved in this
case, is as follows: A homestead TO the extent OF
one hundred and sixty acres of land, or the hall
| OF one acre within the limits of any Incorporated
| city or town, owned by the head of family re-
| siding in this State, and the improvements on
the real estate shall be exempted from forced
sale under any process of law, and the real es-
tate shall not be alenable without the Joint con-
| sent OF husband and wife, when that relation ex-
isls But no property shall be exempt from sale
for taxes or for the payment of obligations con-
tracted for the purchase Of said premises, or for
the erection OF improvements thereon, or for
house, field, or other labor performed on the
| same. The exemption herein provided for in q
city or town, shall not extend TO more improve
ments or buildings than the residence and bust
| ness house of the owner
| The exemption shall accrue 10 the heirs of the
party having enjoyed or taken the benefit Of such
exemption, and shall apply TO all debts except
| as specified, no matter when or where the debt
was contracted or liability incurred Const, Art
| TX. Secs Q and g.
The exemption here provided for is clearly
exemption from sale for the debts of the owner
| of the property, who is the head of q family,
residing in this State, and it is also as clear &C
language can make IL that this exemption as
homestead from the debts Of such ouner is all that
enures TO his heirs upon his death, by virtue Of
the constitution. In this case, a. We have stated