In re the Estate of Finch

372 So. 2d 532, 1979 Fla. App. LEXIS 14979

Opinion

DAUKSCH, Judge.

This is an appeal in a probate matter wherein the trial judge entered an order “setting aside homestead real estate.” The effect of the order was to remove from the operation of a will the homestead property of the testator thereby nullifying a devise of the property to the surviving spouse for life and the remainder in fee to one of the two adult lineal descendants. In doing this the circuit judge initially and directly, albeit by implication, construed a provision of the state constitution, to-wit Article X, Section 4(c), Florida Constitution which says:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.

Here the trial court construed the constitution to prohibit a devise of a life estate to the spouse with the remainder to a lineal descendant because the order appealed sets aside that devise and requires the homestead to pass by intestacy laws as required in Section 732.401(1), Florida Statutes (Supp.1976).

Whenever an order of a trial court initially and directly construes a provision of the state constitution our Supreme Court has exclusive jurisdiction. Art. V, § 3(b)(1), Fla.Const.

This appeal is transferred to the Supreme Court of Florida.

APPEAL TRANSFERRED.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.