O'Neal v. Miller

Whitfield, J. In this case the husband, the head of the family, was residing with his wife and minor unmarried daughter on his homestead in Florida, when the wife and minor unmarried daughter went to another State. They did not return to Florida for several years and until after the death of the husband. This marital relation continued and the husband resided on the homestead until his death. The wife did not acquire a permanent home or domicile separate from that of her husband; and it was her privilege, if 'not her duty, to return to the husband on the homestead at any time during his life, even if in law, it was not also the privilege or duty of the minor unmarried daughter to return to her father’s home where he continued to reside till his death. *172 Under such conditions and circumstances there was no abandonment of the homestead of the husband in Florida on which he resided with his wife and unmarried daughter as his family, before the wife and daughter went to another State, and on which homestead the husband continued to reside until his death, the marital relation continuing and neither the wife nor the minor unmarried daughter having acquired a home or a domicile separate from that of the husband and'father. The essential facts in each case control the decision. The facts in this case are stated in the opinion of Mr. Justice Brown. In Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. 182, all the children were grown and had permanently established homes away from the father’s homestead ; and when the wife died, though the husband continued to live alone on the home place, it was no longer the homestead of the husband because he had no wife and no one lived with him as a member of his family. In Jordan v. Jordan, 100 Fla. 1586, 132 So. 466, the husband and wife by agreement and conduct abandoned the marital relation and the homestead exemption rights, the children having homes of their own. In Lanier v. Lanier, 95 Fla. 522, 116 So. 867, the homestead property was held to have been abandoned by husband and wife. In Johns v. Bowden, 68 Fla. 32, 66 So. 155, the children had permanently moved from the father’s homestead and the mother had died, but a granddaughter lived with the surviving husband and father as a member of his family. In this case the wife and minor daughter left the husband’s homestead in Florida because of his cruelty; and there was no divorce or agreed separation of the husband *173 and wife and no intended abandonment of the homestead by the wife when she and the minor daughter left the home because of the husband’s cruelty, and no intention thereafter to abandon the homestead is shown or can be inferred from anything in the record brought here. The marital relation continued and the wife and minor daughter had the privilege of returning to the home where the father continued to live until his death. When the husband died he was a married man living on his homestead, and he and his wife had not abandoned or alienated the homestead property and had not by agreement abandoned the marital relation. See Nelson v. Hainlin, 89 Fla. 356, 104 So. 589. The father’s mortgage executed in 1927 was good against him as to the property other than the homestead rights in the real estate known as “the South 30 feet of east half of Lot 9, block 37, according to the Plat of Waddell’s Addition to the Town of Miami, * * * on which is located a house known as 1512 N. W. First Court, Miami, Florida.” The widow having died pending this suit, there are no dower rights. The homestead passed to the surviving daughter. Decree reversed for appropriate proceedings. Terrell, C. J., Chapman and Thomas, J. J., concur. Brown and Buford, J. J., dissent in part and concur in part.