Gaines v. Gaines, &C.

• Decision Date: 02 February 1848
• Citation: 48 Ky. 295
• Court: Kentucky Court of Appeals
• Parties: Gaines <I>vs</I> Gaines' Executor and Heirs.

Page 295

48 Ky. 295

Gaines vs Gaines' Executor and Heirs.

Court of Appeals of Kentucky.

February 2, 1848.

APPEAL FROM THE GREEN CIRCUIT.

CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

IN 1832, Thomas Gaines, then above seventy years of age, being possessed of a considerable estate in land, slaves and personalty, and having children and grand children settled around him, intermarried with Catharine L. Pentecost, then about thirty two or three years of age, a lady possessing but little property, and who had never been married. No long time had elapsed after the marriage, before jealousies arose on the part of the husband's children, with regard to the alleged liberality of the wife in disposing of her husband's property, such as home made cloth, counterpanes, socks, sugar, coffee, &c. &c., in presents to her sister, who lived in the neighborhood, and at one time she seems to have been suspected of purloining a note executed to her husband by her brother-in-law. The dissentions arising from these accusations, destroyed the harmony which should have subsisted between the married pair, and after repeated scenes of crimination and recrimination, in which violent language and gestures were used, and in one instance at least, of personal violence on the part of the husband towards the wife, a separation took place in 1837, under an arrangement by which the husband transferred to two trustees for the benefit of the wife, her clothes, bed and furniture, bureau and some other small articles, a cow and calf, and two debts upon third persons, amounting to about $850, of which, however, $100 was to be paid to himself, as it would seem, for the expense of previous medical attendance upon his wife, and he also relinquished all claim upon two vacant lots in the town of Greensburg, which had belonged to her before the marriage. The trustees, in consideration of the premises, bound themselves to save him and his heirs against all claim on the part of the wife, to support during his life and to dower, &c. afterwards. But Mrs. Gaines was not a party to the instrument.

In 1842, Mrs. Gaines filed her bill alleging ill treatment on the part of her husband, and that she had, in effect, been sent from his house under an inadequate provision, and praying for alimony. The husband answered, denying the many allegations of the bill but admitting and justifying, on the ground of great provocation, one instance of violence, and insisting that he had made ample provision for her; he alleged, by way of cross bill, that she had abandoned him and remained absent for five years, and prayed for a divorce. In answer to this cross bill, the wife denied its principal allegations, reiterated her former charges, resisted the prayer for a divorce, and repeated her prayer for alimony.

This answer was filed in November, 1842, and at the next May term, (1843,) the husband filed his supplemental answer to the original bill, in which he states that "since the filing of his original answer, the Legislature of Kentucky, by an act regularly and legally passed, after due notice given to said Catharine, has divorced him from said Catharine, and she is no longer his wife," and he files a copy of said act and pleads and relies upon it as a bar to the claim for alimony.

The document filed is an attested copy of the 26th section of an act approved March 10, 1843, in the following words: "Chap. 335, Section 26. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That Thomas Gaines, of Green county, be divorced from his wife, Catharine L. Gaines."

In January, 1844, Thomas Gaines, then about eighty four or eighty five years of age, departed this life, and in June, 1844, a bill of revivor was filed by Catharine Gaines, against his personal and real representatives, claiming dower in his lands and a widow's distributive portion of his slaves and personalty, and also a large sum for arrearages of alimony. This bill, as well as the previous one, charged that Thomas Gaines had made a fraudulent disposition of his land and slaves among his children, before his death, and indeed before the separation, in order to defeat the interest and claim of the complainant to alimony during his life and to dower after his death. All the parties interested being made defendants, denied the charge of fraud, insisting first upon the sufficiency of the provision made for the complainant, and the right of their father to distribute his estate among his children, to some of whom, the land had been given and was in their possession long before the marriage; and in answer to the bill of revivor, besides relying on the same facts, they plead and rely on the legislative divorce as a bar to all claim to alimony, dower or distribution.

The only testimony in the record consists of numerous depositions covering more than 200 pages, which purport to have been taken to be read before the Legislature, on the petition of Thomas Gaines for a divorce, and which were, by consent, afterwards introduced into this case. In August, 1847, the cause having been previously submitted, by consent, to the decision of a member of the bar in consequence of the Judge's refusal to adjudicate in the case, a decree was rendered disallowing the bar as set up under the legislative divorce, on the ground that the act was unconstitutional, and rejecting the claim for arrearages of alimony, and for a distributive portion of the slaves and personalty given away by Thomas Gaines in his lifetime, but decreeing to the complainant her distributive share as widow, in the small estate in slaves and personalty belonging to the deceased husband at his death, with an account of hire, and also her dower in one third of the lands of which he was seized during the coverture, with an account of rents, except two parcels conveyed to two of his sons to whom they had been given in possession many years before the marriage, and had so remained until actually conveyed, and indeed up to the decree.

From this decree the representatives of Thomas Gaines have appealed to this Court, alleging that it was erroneous to grant, to any extent, the relief prayed for, and questioning every part of the relief granted; while Mrs. Gaines complains, by cross errors, of the rejection of her claim to alimony, and of the refusal to decree her dower in all the land referred to, and to allow her the portion of a widow in the slaves, &c., alleged to have been fraudulently disposed of by her husband during the coverture.

The main question presented in the case, is as to the effect which the legislative divorce should have upon the rights claimed by the parties respectively. This question, involving the constitutional question of the power of the Legislature to pass special acts of divorce, or the legitimate operation which such acts, if within the legislative competency for any purpose, should have upon rights of property which may be affected by them, is now, for the first time, so far as we know, directly presented for the decision of this Court. This is in reality, the sole question presented by the objections to the decree on the part of the appellants; and in order to disentangle it from all other and minor questions, we shall, before entering on the discussion of this principal one, dispose briefly of the complaint made by the cross errors assigned on the part of the appellee.

1. The case of Oldham vs Sale, (I B. Monroe, 77,) decides that a widow is not entitled to dower in lands verbally sold by her husband before marriage, and conveyed by him in pursuance of his parol contract, during the coverture; and we think the principle applies to a bona fide gift made before coverture, to a child by a former marriage, who takes the possession and improves the land under the gift, claiming it as his own before the coverture, and receives a conveyance from the husband afterwards.

2. With regard to the slaves, &c. given by the husband to his children during the coverture, the wife had no such vested interest in them as authorizes her to assail the gift as fraudulent, either during the life or after the death of the husband, unless it be for securing a support or alimony during the coverture. As widow she is entitled only to a distributive interest in the slaves and personalty possessed by her husband at his death, and can claim none which have been disposed of by him except on grounds which would authorize him to set aside the disposition, as having been procured by fraud upon him. This was decided in Petty vs Petty, (4 B. Monree, 219,) and Petty vs Webb, &c., (6 B. Monroe, 468,) in relation to a conveyance made by the husband immediately before his second marriage, in violation of his parol promise to his intended wife, and to her injury, but the principle of the decision applies to a conveyance made during coverture as well as before.

3. The claim to alimony as such, ceases at the death of the husband, when the wife becomes entitled to dower. If before that event there has been no decree, the representative of the husband is only liable upon his common law liability to furnish his wife with a support, on the ground of which the law implies an assumpsit on the part of the husband, to make a just compensation to any one who furnishes necessaries to the wife, if she be living separately by his fault or consent, unless he has made a suitable provision for her, and actually paid it. No such claim is asserted by or on behalf of any one who may have furnished necessaries to the complainant. And although we regard the provision made for the complainant as being, in view of her husband's estate, wholly incompetent, and although the Chancellor might have decreed something against him for arrearages, in favor of a wife who had been compelled, in consequence of the inadequacy of the provision made for her by her husband, to labor for her support or to depend upon the gratuitous kindness of friends, yet we conceive that unless there be...