Bains, &C. v. Glb. B. & T. Co

• Decision Date: 20 January 1910
• Parties: Bains, &c. v. Globe Bank & Trust Co. First National Bank of Paducah, &c. v. Bains, &c.
• Court: Kentucky Court of Appeals

Page 332

136 Ky. 332

Bains, &c. v. Globe Bank & Trust Co.

First National Bank of Paducah, &c. v. Bains, &c.

Court of Appeals of Kentucky.

January 20, 1910.

Appeal from McCracken Circuit Court.

W. M. REED, Circuit Judge.

From the judgment, some of the defendants appeal and plaintiffs file cross-appeal. Judgment on cross-appeal affirmed and on appeal of defendants reversed.

D. G. PARK for First National Bank.

JOHN G. MILLER, W. MIKE OLIVER, HENDRICK & CORBETT and WM. MARBLE for heirs and devisees of Willhelm.

BRADSHAW & BRADSHAW for Bains.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

The Globe Bank & Trust Company brought this suit in the McCracken Circuit Court to enforce the collection of two notes aggregating the sum of $5,811.35, executed to it by the Register Newspaper Company, with James E. Wilhelm, M. E. Beadles, and Ella B. Wilhelm as sureties; the latter being the wife of James E. Wilhelm, and Mrs. Beadles being his mother-in-law, the widow of William E. Beadles, who died in October, 1893. Mrs. Wilhelm executed no mortgage to secure the notes, and they were therefore unenforceable against her, as she was only a surety in them. Prior to the death of William Beadles, he deeded to her real estate in Paducah, which is now very valuable. She died on April 4, 1908, leaving surviving her her husband and four children. She and her husband were married in 1887, and had issue born in 1889. The bank insisted that at her death her husband took an estate by the curtesy in this land, and undertook to subject it to its debt. She left a will, which was duly admitted to probate, by which she devised the land to her children, giving her husband in effect a home there with them, and devised to him other property. Her will was duly admitted to probate and was not renounced by the husband; on the contrary he accepted its provisions and took under it. It is insisted for the bank that in so doing he practiced a fraud upon his creditors, and that, notwithstanding the will and the fact that he has not renounced the will, he still owns a life estate in the land which may be subjected to its debt. The circuit court so held, and the devisees of Mrs. Wilhelm appeal.

Under the law in force before the adoption of the present statutes, a married woman might be empowered by a decree in chancery to dispose of her property by will. Mrs. Sallie H. Wills was so empowered and made a will devising her land to others. Her husband's creditors interposed and insisted that the land was subject to their debts. The court, rejecting this, in Garner v. Wills, 92 Ky. 388, 17 S. W. 1024, 13 Ky. Law Rep. 727, said:

"The power conferred upon Mrs. Wills by that judgment, if a valid judgment, had the effect to remove the disability of coverture in respect to disposing of her real estate by will and to deprive her husband of any interest therein that the law would have otherwise given him at her death, had she not disposed of the same by will. But it is said such power should not be so construed as to deprive the husband of his right to curtesy in his wife's land so far at least, as creditors are concerned, as that would be a fraud upon them. But why would the exercise of such power be any more a fraud upon them than the sale or gift of the land by the husband and wife. If the wife had conveyed her land by deed of gift to her children, the husband joining in the deed to his creditors, after her death, could not complain, because he had at the time of the conveyance no interest in the land that was subject to their demands against him; his right to curtesy, even if there were issue born alive, would depend upon the contingency of his wife dying first, or said estate being disposed of in her lifetime. His right of curtesy does not attach upon marriage like the wife's inchoate right to dower attaches upon marriage, which right she cannot be deprived of without her consent exercised in a certain way; but the husband's right to curtesy is entirely contingent upon having issue born alive and his wife's death preceding his, the owner of the land; and, as said, if he and his wife sell the land, his creditors cannot complain of being defrauded by the sale; and, so if the court empowers her to dispose of her land, which includes his contingent right of curtesy, by her will. We percieve no difference in the effect upon creditors in the two cases."

The same question was again presented to this court in Bottom v. Fultz, 124 Ky. 302, 98 S. W. 1037, 30 Ky. Law Rep. 479. The court, reaching the same conclusion under the present statute, said: "This court has decided in the cases of Brand v. Brand (109 Ky. 721), 60 S. W. 704, 22 Ky. Law Rep. 1366, Gillispie v. Boisseau, 64 S. W. 730, 23 Ky. Law Rep. 1046, and Smoot v. Heyser, 113 Ky. 81, 67 S. W. 21, 23 Ky. Law Rep. 2401, that a husband may renounce the will of his wife as provided by section 2067 (Ky. St. 1903). This is a personal privilege given to the husband, and it is one which he may exercise or not, at his own pleasure; and we are of...