Chalk v. Chalk

• Decision Date: 27 October 1942
• Citation: 291 Ky. 702
• Parties: Chalk v. Chalk et al.
• Court: United States State Supreme Court — District of Kentucky

291 Ky. 702

Chalk v. Chalk et al.

Court of Appeals of Kentucky.

October 27, 1942.

1. Dower. — In action by widow involving right to dower in real property, title to which was held by decedent's son, evidence showed that indebtedness to decedent's son was bona fide, and

that title was held for purposes of security, and that there was no fraud on right of widow (KRS 392.020).

2. Dower. — Under statute providing that upon death of either husband or wife the survivor shall have an estate for life in one-third of all the real estate of which the other spouse or any one for the use of the other spouse was "seized" of an estate in fee simple during the coverture, the word "seized" means owned, and the "owner" of property is one in whom title is vested either absolute or qualified so that the statute may be said to read that a husband or wife of the decedent has an estate for life in one-third of all the real estate which the other spouse owned, or any one owned for his or her use during coverture (KRS 392.020).

3. Dower. — Where legal title to property was held by son as security for moneys advanced to deceased father, the father's widow was entitled to dower in the real estate, since son was "seized" of an estate in fee simple for the use of his father within meaning of the statute conferring right of dower on the widow (KRS 392.020).

4. Dower. — Where legal title to real estate was placed in son as security for advances to father the inchoate right of dower of father's wife attached when the property was acquired, and where wife had not joined in conveyance of part of property sold, right of dower became "vested" on husband's death and widow was entitled to have it recognized (KRS 392.020).

5. Dower. — Where title to property was placed in son as security for advances to father and part of property was thereafter sold before death of father to purchaser who had no knowledge of father's interest, and father thereafter died, equity required that there should be an allotment of equivalent dower in other real estate owned by decedent (KRS 392.060).

6. Dower. — Where title to real estate was put in son's name as security for advances made by him to father and there was placed upon the property, a mortgage in which father's wife did not join, and father subsequently died, in ascertaining the widow's right to dower the amount of the mortgage as well as payments made on mortgage debt by son must be disregarded (KRS 392.020).

7. Dower. — The wife's right of dower is subordinate to vendor's lien for purchase money, because the lien is coeval with the husband's right to land and he acquires his title subject to the lien (KRS 392.040).

8. Dower. — Where son advanced money to father for the purchase of land, title to which was taken in son's name as security, son was entitled to a lien in the nature of a "vendor's lien" superior to widow's right of dower (KRS 382.070, 392.020, 392.040).

9. Subrogation. — In the administration of natural justice between all parties concerned, when one who is not a mere volunteer advances money for the use and benefit of another, he will be "subrogated"

to his rights except to the extent that it may injure innocent persons.

10. Dower. — Dower right, whether inchoate or consummate, is subordinate to a lien for taxes, including street assessments (KRS 92.590, 134.420).

11. Dower; Taxation. — Where son held legal title to property of father as security for advances, the son as holder of a lien on the property was entitled to satisfy delinquent taxes and upon their satisfaction became "subordinated" to the liens of the commonwealth and other taxing districts for moneys paid, which liens were superior to widow's dower in lands of father (KRS 134.080).

12. Executors and Administrators. — Where nearly nine months had elapsed since executor qualified and but little had been done and intestate's widow brought an action for the determination of her rights and those of other beneficiaries and creditors, suit was properly brought by widow who was entitled to allowance of a reasonable attorney's fee, regard being had for fact that executor is also entitled to attorney's fee (Civil Code of Practice, sec. 428; KRS 412.070).

Appeal from Campbell Circuit Court.

Barbour & Bassmann for appellant.

Benton & Benton for appellee.

Before Ray L. Murphy, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

This suit was instituted by Mrs. Julia Chalk against the children of her late husband, Jule Chalk, one of whom is also sued as executor, for a settlement of his estate. She has particularly sought the adjudication of her rights as widow under the statute of descent and distribution, which is in accordance with her husband's will. Her appeal is directed at parts of the judgment adverse to her claims.

The court adjudged that the decedent was the equitable owner of certain real estate on Highland Avenue, in Ft. Thomas, title to which was in Fred Chalk, his son, and that the widow is entitled to dower therein. It was, however, adjudged that her dower right is subordinate to a mortgage lien of the Favorite Federal Savings & Loan Association of Newport for $4,351.95, with interest from March 15, 1941, and an equitable lien of Fred Chalk for $7,623.29, with interest from various dates. The result was to deprive the widow of dower in that property. The appellant contends it was error to adjudge the decedent to have been only the equitable owner instead of the owner of the legal title, and asserts that the deed to appellee, Fred Chalk, operated only as a mortgage on the property which does not diminish her dower rights. A part of the property had been sold in 1928 for $2,500. The appellant contends that she is entitled to have the equivalent of dower in that parcel allotted to her in other real estate since her inchoate right was never surrendered or conveyed.

It is argued that the placing of title to the property in the son, Fred Chalk, was a fraud upon the appellant's marital rights. There is no evidence of any actual intention to defraud except the testimony of a man and wife, friends of the appellant, that the decedent made statements about the time the property was purchased in 1928 that he intended to limit the amount of his estate which should go to his wife to her dower interest in his business property, and for that reason he had put title in the recently acquired property in Ft. Thomas in his son's name. Their testimony is not persuasive. The transactions between father and son from the beginning to the end are natural and induce the conviction of good faith. The mother of his three sons and two daughters died in 1926, and Chalk married the appellant in September, 1927. At that time the youngest child was a daughter about 13 years old. Chalk had been in the livery stable business in Newport, and with the exit of horse travel had converted his property and business into a garage. He and his sons ran this. There is no contradiction that the youngest boy, Fred, worked hard and saved his money. The family lived in the home in Newport until it was sold in June, 1928, for $12,000. In August, 1928, Chalk bought the Ft. Thomas property for the same amount. He had apparently used $2,200 of the proceeds from the Newport property for other purposes for he needed that sum to complete the payment. Fred agreed to let his father have the money if he would put the title in his name as security. Chalk's lawyer testified that in discussing the purchase he had suggested that title be placed in Fred and thereby avoid the payment of taxes on the debt. A residence was built on part of the property. At his father's request Fred loaned him the further sum of $1,600 and effected a loan for $5,500 from the Favorite Federal Savings & Loan Association with which to complete payment for the new building, which cost about $16,000. The family moved in it and, except the two daughters, who had married, were living there when Chalk died in October, 1939. The father always dealt with the property as his own. In October 1930, Fred paid $400 for street improvement assessment against the property, and in 1938 delinquent and current taxes thereon, amounting to $532. During all the while he was making the stipulated weekly payments to the Savings and Loan Association on the mortgage debt. These aggregate $4,490.29. He was also advancing money for the payment of taxes on the garage property and lending his father different small sums from time to time. When he suggested the looseness of their transactions and the absence of evidence of his father's indebtedness, he executed notes for the various sums according to the dates they were advanced or loaned. The money had been withdrawn from Fred's savings accounts as is shown by the records. There is nothing to indicate any fraud or bad faith on the part of anyone. And under the view we have of the case there was no constructive fraud upon appellant's marital rights.

We consider the question of whether the widow had dower in the Ft. Thomas property, title to which was held by the son, Fred Chalk, as above described, which question is scarcely disputed. The language of the statute, Ky. Rev. Stats. 392.020 (Sec. 2132, Ky. Stats.) is:

"After the death of either the husband or wife, the survivor shall have an estate for his or her life in one-third of all the real estate of which the other spouse or any one for the use of the other spouse was seized of an estate in fee simple during the coverture, unless the survivor's right to such dower or interest has been barred, forfeited or relinquished."

Therefore, the widow has dower in real property of which anyone for her husband's use "was seized of an estate in fee simple during the coverture." The word "seized" in its technical sense had its origin in the days of feudalism, and the courts in these later days seem to have had difficulty in defining it under modern laws of property. See Vol. 38, Words and Phrases, Perm. Ed., "Se...