Christmas v. Hahn

• Court: Kentucky Court of Appeals
• Writing for the Court: PRYOR, J.
• Citation: Christmas v. Hahn, 9 S. W. 279 (Ky. Ct. App. 1888)
• Decision Date: 22 September 1888
• Parties: CHRISTMAS v. HAHN.

9 S.W. 279

CHRISTMAS v. HAHN.

Court of Appeals of Kentucky.

September 22, 1888

Appeal from Louisville chancery court.

Ejectment by Mary E. Christmas against Matilda C. Hahn. Judgment for defendant, from which plaintiff appeals. Rev. St. Ky. c. 47 art. 4, § 17, referred to in the opinion, reads as follows "If real or personal estate be hereafter conveyed or devised for the separate use of a married woman, or for that of an unmarried woman, to the exclusion of any husband she may thereafter have, she shall not alienate such estate, with or without the consent of any husband she may have; but may do so when it is a gift, by the consent of the donor or his personal representative."

Wm Lindsay and S. B. Toney, for appellant.

H. M Lane, for appellee.

PRYOR J.

This action was instituted by the widow of Richard Christmas to recover the real estate sold by him under a power of attorney given the husband by the wife; the estate being her separate estate, with the power of disposal on the part of the wife. The provisions of the Revised Statutes, or the construction of its provisions, must control the decision of this case. Prior to the marriage of Mary E. Phillips with Richard Christmas, which occurred on the 6th of October, 1852, they entered into a contract, by which the property of the said Mary, including a large tract of land in Jefferson county was to remain and constitute the sole and exclusive estate of the wife, free from the marital rights of the husband. In the year 1855, after the marriage, the parties, with a view of making the agreement more effectual, conveyed to James Y. Christmas the property, including the land in controversy, that he might reconvey the same to Richard Christmas, in trust for the sole and exclusive use of his wife, Mary, as her separate estate, with the express power on the part of the wife to dispose of the same or any part of the property at her discretion by deed, will, or otherwise, as if she was a feme sole. The third party, James Y. Christmas, at or about the same time reconveyed the property to the husband and wife,--to the husband as trustee,--creating the separate estate, and giving to the wife full power to make such disposition of the property as she might deem proper. The object of these two deeds was to carry into execution more certainly the antenuptial contract between the husband and wife, and the wife was at all times the beneficial owner of the estate, and in fact in equity the absolute owner. James Y. Christmas had no other interest or power over the estate than the right to convey it for the separate use of the wife, with the power on her part to dispose of it as she pleased. The appellant, having owned the estate in her own right as her general estate, had the power, in conjunction with her husband, to create this separate estate for her exclusive benefit, with the right reserved on her part to control and dispose of it; nor is this right of the wife affected by the provision of the Revised Statutes in force when the transactions took place. This court, in the cases of Bryan v. Bohannon, (1856,) and Bell v. Rogers, (1877,) --MS. opinions,--held that, where the wife at the time owned the general estate, and converted it into separate estate for her exclusive use, that such an estate was not controlled by the provisions of the Revised Statutes, prohibiting the alienation by a married woman of property conveyed or devised to her for her separate use. Chapter 47, § 17. This court was not disposed to extend the statute so as to embrace a state of case where the wife herself had created the separate estate out of her...