Chalk v. Chalk
| Decision Date | 27 October 1942 |
| Citation | 291 Ky. 702,165 S.W.2d 534 |
| Parties | CHALK v. CHALK et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.
Suit by Julia Chalk against Fred Chalk, etc., and others for a settlement of the estate of plaintiff's deceased husband. From parts of judgment adverse to plaintiff, the plaintiff appeals.
Judgment reversed.
Barbour & Bassmann, of Newport, for appellant.
Benton & Benton, of Newport, for appellee.
STANLEY Commissioner.
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 anyone 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., "Seized", p. 521, and "Seisin", p. 514; 42 Am.Jur., Property, Section 45. Justice Story held in Cook v. Hammond, Fed.Cas.No.3,159, 4 Mason 467, that the word "Seisin" under acts of descent in this country was equivalent to ownership. For all practical purposes, therefore, the word "seized" means owned. 16 Am.Jur., Descent and Distribution, Section 64; 42 Am. Jur., Property, Section 45; 57 C.J. 97; Burdett v. Burdett, 26 Okl. 416, 109 P. 922, 35 L.R.A.,N.S., 964, 965. And the owner of property is one in whom title is vested, either absolute or qualified. Baldwin v. Shine, 84 Ky. 502, 2 S.W. 164. The legal definition of the word is fully as comprehensive as the common understanding. So our statute in relation to dower may be said to read that a husband or wife of a decedent has an estate for life in one-third of all the real estate which the other spouse owned or anyone owned for his or her use during coverture.
In a case in some respects like the present, we have held, in accordance with KRS 392.040(2), (Sec. 2142, Ky. Stats.), that a widow has dower in real estate to which her husband had equitable title at his death. Harrison had a title bond for the conveyance of a parcel of land on the payment of a balance of $1,500 on the purchase price. The Commonwealth had a judgment against him for money owing as sheriff and Harrison surrendered the property in writing, to be sold in satisfaction thereof. Griffith became the purchaser at the execution sale, subject to the $1,500 obligation. He subsequently acquired the note evidencing that debt. A suit was brought setting out the facts and asserting other claims against Harrison. The property was sold under the decree and Griffith bid it in. Before confirmation, Harrison died. His widow claimed dower, and we held that in surrendering the property the husband did not alienate her inchoate right nor did the execution or judicial sale, since the wife was not a party to the suit. "It is an inevitable result, therefore," says the opinion, "that as Harrison died seized of the property, his widow is entitled to be endowed after the payment of the preferred vendor's liens and the debts due the State." Harrison v. Griffith, 4 Bush. 146, 67 Ky. 146. See also Lane v. Judy, 12 Ky.Op. 379, 5 Ky.Law Rep. 513; Eubank v. Eubank, 13 Ky.Op. 673; Redmond's Adm'x v. Redmond, 112 Ky. 760, 66 S.W. 745; Ketterer v. Nelson, 146 Ky. 7, 141 S.W. 409, 37 L.R.A.,N.S., 754; Ferguson v. Ferguson, 153 Ky. 742, 156 S.W. 413. It may be observed that there is a distinction between a husband's mere equity in land or the holding of title as an agent or trustee and an equitable title of a character that entitles him to have or enforce a conveyance of the legal or fee simple title, i. e., when he is seized of a beneficial interest. Bartlett v. Gouge, 5 B.Mon. 152, 44 Ky. 152; Gully v. Ray, 18 B.Mon. 107, 57 Ky. 107; McIlvaine v. McIlvaine, 10 Ky.Op. 181. The decedent, Jule Chalk, had such title. Therefore, it makes no difference whether it should be held that the decedent had legal title to the property subject to the liens of his son, or that he owned an equitable title, for it is manifest that the son "was seized of an estate in fee simple" for the use of the father. That being the condition, the widow had dower in it. The wife's inchoate right of dower attached when the property was acquired, and not having joined in the conveyance of the part sold in 1929, her potential right became consummated as a vested one at the husband's death and the widow is entitled to have it recognized. Harris v. Langford, 83 S.W. 566, 26 Ky.Law Rep. 1096; Bartlett v. Buckner's Adm'r, 265 Ky. 747, 97 S.W.2d 805; Rowe v. Ratliff, 268 Ky. 217, 104 S.W.2d 437; Maryland Casualty Company v....
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