Opinion
August 1, 1950.
Appeal from the Circuit Court for Palm Beach County, C.E. Chillingworth, J.
Hal S. Ives, Paty, Warwick Paul, all of West Palm Beach, for appellant.
Clyde G. Trammell, West Palm Beach, for appellee.
On first consideration of this cause, and on petition for rehearing, the sole question with which we were confronted, was whether or not the locus involved was a homestead as contemplated by Article X of the State Constitution, F.S.A. No other question was raised by the pleadings or adjudicated by the chancellor. The chancellor gave an affirmative answer to this question. We affirmed his decree in the face of evidence that was in sharp conflict.
On reconsideration, it was, for the first time, contended that our order affirming the chancellor's decree had the effect of creating a wholly inequitable situation, in that under such ruling the appellee will, under the will of her deceased mother, receive all of her part of the mother's estate and two-thirds of that part decreed to be the homestead. Not only that, but it is contended that appellee is forever barred from claiming any right to that portion of the property of said estate which appellant has received and appropriated under the mother's will without offering to do equity, notwithstanding she assented to the distribution, appropriated her part and does not now offer to do equity.
The pleadings in the case did not present any such alleged equities and they were not urged at the bar of this court until the reconsideration. It is quite true that reasonable inferences from the evidence may be said to point to said equities, but not having been presented or ruled on by the trial court, it would be utter folly to urge their adjudication by this court at this time. We will not divine issues from the ether nor attempt to adjudicate those not presented by the pleadings or ruled on by the trial court. It is a fact that the chancellor retained jurisdiction of the cause for the purpose of entertaining appellee's, Pauline Jones Neibergall's counterclaim in which she became the first actor seeking equitable relief.
In this state of the record Mr. Chief Justice ADAMS, Mr. Justice CHAPMAN, Mr. Justice HOBSON and Mr. Justice TERRELL are of the view that our order affirming the decree of the chancellor should be adhered to and reaffirmed, but without prejudice to an application on the part of either party at the time the chancellor entertains the counterclaim, to recast the pleadings so as to raise and present the equities contended for, produce evidence to establish them, and secure a ruling by the chancellor on the issues so made.
Mr. Justice THOMAS and Mr. Justice SEBRING are of the view that our order affirming the decree of the chancellor should now be adhered to and reaffirmed.
Ordered accordingly.
ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS, SEBRING and HOBSON, JJ., concur.
BARNS, J., concurs specially.
Willie Jones was aged and the mother of three adult children. Pauline and Howard had married and Paul remained single. Mother Jones wished to leave an equal portion to her three children. She called them into conference and then all conferred. Distribution was agreed upon. The will was drawn and shortly thereafter mother Jones died. The will was probated and distribution made accordingly. Paul went to war and left his sister Pauline in charge of that which was devised to him. Upon his return she turned over to him $1000 in collected rents.
Then the trouble started. Pauline now claims that the one lot devised to Paul was her mother's homestead and not alienable by will. Paul also received a specific devise of 100 acres of land near Brooksville.
The mother made specific devises to Pauline, Howard and Paul and the devise to Pauline is first and is as follows:
"Third
"I hereby give, bequeath and devise unto my beloved daughter, Pauline Neibergall, the following described real estate: Lots Fifty (50), Forty-eight (48), Forty-seven (47), Forty-one (41), Thirty-nine (39) and Thirty-eight (38), of Lincoln Park Addition to the City of West Palm Beach, Florida, Also Lots Forty-five (45) and Forty-six (46), in Bonnyview, a subdivision of the City of West Palm Beach, Florida, Also I give and bequeath to my daughter Pauline Neibergall, the bed and the oak dresser now in her room, the old music box now in my son Paul's shop and the iron beds now stored in the store house at the home place, also all of my jewelry and personal effects."
The specific devise to Paul is as follows:
"Sixth
"I hereby give, bequeath and devise, unto my beloved son, Paul Jones, the following described real estate: Lot Five (5) Block Twenty-eight (28), Clow Addition to the City of West Palm Beach, Florida, together with all household furniture and fixtures contained in the house located on the above described Lot Five; Also the One Hundred (100) acres of land that I now own, located in Hernando County, Florida, near Brooksville, to have and to hold the same forever absolutely."
The residuary clause in the will is as follows:
"Seventh
"I direct that any moneys, stocks, bonds or mortgages, or other securities that I own, that may be left after paying the expenses of my last illness and burial, be divided equally between my three children hereinbefore mentioned, share and share alike."
The estate was appraised at $38,000 and among other assets consisted of 28 Negro tenement houses.
Years after the distribution under the will had been completed and after the discharge of the executor Pauline lays claim to the lot devised to Paul upon the basis that it was a homestead and not alienable by will of her mother.
Pauline withheld her claim until she had fully received her entire devise and bequest. Whether or not she has dissipated her benefaction is not revealed, but any offer on her part to surrender it is conspicuously absent. She wishes to retain all and to receive more from that devised to Paul. Howard denies Pauline's one-third ownership of the lot devised to Paul, and asserts no claim in his own behalf.
The recited facts are not in dispute, and the law is that where a will professes to make a general disposition of property for the benefit of a person named in it such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with them. See authorities cited in Jones v. Neibergall, Fla., 42 So.2d 443.
The facts and circumstances tend to show Pauline Neibergall to be guilty of laches or equitable estoppel and that a court of equity should not now hear her to contest the provisions of the will, since she remained quiet at a time when she should have protested if she had any supposed ground for protest; that Pauline may have been bound by the judicial administration of her mother's estate; and that she received the benefits of the will burdened with the duty of renouncing all rights inconsistent with it.
The issue of fact tried before the chancellor and determined by him was whether the lot devised to Paul was a homestead, and his finding was that the lot was a homestead, with the result that it passed to the three children by operation of law and not by the will.
The record presents other equities which appear not to have been presented to nor considered by the chancellor as above indicated, and to fail to consider them would result in Paul's receiving one-ninth of his mother's estate and 100 acres of land, when it affirmatively appears at the present time that the mother's intention was that each of her three children should receive a third.
It is our conclusion that the decree appealed should be affirmed in respect to the finding that the lot devised to Paul was a homestead, but that the case should be remanded, with leave granted to consider any applications for amended pleadings, to take further evidence, and to pass upon the equities of the parties as they may be made to appear, and it is so ordered.
TERRELL and HOBSON, JJ., agree to the conclusion.