Cunningham v. Cunningham

• Decision Date: 28 January 1888
• Citation: 5 S.E. 139,30 W.Va. 599
• Parties: CUNNINGHAM et al. v. CUNNINGHAM.
• Court: West Virginia Supreme Court

5 S.E. 139

30 W.Va. 599

CUNNINGHAM et al. v. CUNNINGHAM.

Supreme Court of Appeals of West Virginia.

January 28, 1888

Submitted January 17, 1888.

Syllabus by the Court.

A married woman by will devised and bequeathed all her estate real and personal, to her husband. At the time she made the will she had no children, but afterwards she had children who survived her. Held, by operation of the statute (Code, c. 77, § 16,) the said devise and bequest to the husband is limited to take effect only in the event the said children die unmarried and without issue.

The husband, by virtue of his marital right, is entitled to curtesy in the real estate of which the testatrix died seized, notwithstanding he failed to renounce the provisions of the will made in his favor, according to the provisions of Code. c. 78, § 11.

But, by reason of his failure to renounce the provisions of the will his right to any distributive share of the personal estate is barred.

Appeal from circuit court, Monroe county; HOMER A. HOLT, Judge.

John Osborne, for appellant.

A. F. Mathews, for appellees.

SNYDER J.

Jane Cunningham, a married woman, the wife of George W. Cunningham, being the owner of a tract of land and certain personal property, as her separate estate, by will dated August 19, 1879, devised and bequeathed said land and said personal property to her husband absolutely. At the time this will was made the testatrix had no children; but between that time and her death, which occurred in 1873, she had two children, a son and a daughter, who survived her, and are still living. The will was duly admitted to probate in Monroe county, where the parties resided in 1883. The husband took possession of said land and personal property; claiming the same as tenant by the curtesy and distributee. In November, 1886; the two infant children of the testatrix, by their next friend, instituted this suit in the circuit court of Monroe county against their father, the said George W. Cunningham, in which, after stating the foregoing facts, they allege that the defendant, claiming to own the whole of said property absolutely, under said will, has converted the personal estate to his own use, and is selling the timber off the land, and has attempted to sell a part of the land itself. They also aver that the defendant never renounced the provisions of the will, and that therefore he is not entitled to an estate by curtesy in the land, nor any distributive share of the personalty. They pray that the defendant be enjoined from selling the land, or any of the timber therefrom, and that he may be required to account for the personal estate, etc. The defendant demurred to and answered the bill. The answer admits the material facts alleged in the bill, but denies the legal conclusion asserted in the bill. The circuit court, by its decree of March 26, 1887, overruled the demurrer to the bill, and decreed that the plaintiffs, the children of the testatrix, are entitled to take and hold all the property, both real and personal, of which their mother died seized and possessed by an estate absolute, defeasible only in the event of their dying unmarried and without issue, and in that event the property will pass under the will to the defendant; and referred the cause to a commissioner to report an account of the acts of the defendant as executor de son tort of the testatrix, etc. From this decree the defendant has appealed.

Our statute provides that if a person die leaving a child, and leaving a will made when such person had no child living, such will shall be construed "as if the devises and bequests therein had been limited to take effect in the event that the child shall die unmarried and without issue." Section 16, c. 77, Code. The facts here bring this case clearly within the statute. The only question, then, to be determined, is whether or not the failure of the defendant to renounce the will is a bar to his right to take anything under the law as husband. The statute by which it is claimed the bar is effected, provides that a wife may, within one year from the time the same is probated, renounce the provisions made for her in her husband's will, and then, after prescribing the manner in which the renunciation shall be made, it declares: "If such renunciation be made, or if no provision be made for her in the will, she shall have such share of her husband's real estate and personal estate, as she would have had if he had died intestate, leaving children; otherwise, she shall have no more thereof than is given her by the will. A husband may, in like manner, renounce a provision made for him in the will of his wife; and in such case, or if no provision be made for him in the will, he shall have such share of his wife's estate, real and personal, as he would have had if she had died intestate, leaving children; otherwise, he shall have no more thereof than is given him by the will." Section 11, c. 78, Code. It will be observed that this statute does not in terms limit the time within which the husband shall renounce the will, as it does in the case of the wife. It merely says: "A husband may, in like manner, renounce," etc. But, as there was no attempt by the husband in this case to renounce at any time, it is unnecessary to consider whether or not the statute, by implication, limits him, as it does the wife, to one year. The statute of Virginia (section 12, c. 128, Code 1860) from which this statute is in part taken, made no provision for the husband to renounce the will of his wife, for the sufficient reason that, according to the law of Virginia, a married woman could not make a will, except for the disposition of her separate estate, or in the exercise of the power of appointment. And the Virginia statute related to personal estate only; so that it in no manner affected her right to dower in real estate. Wiseley v. Findlay, 3 Rand. (Va.) 361; Blunt v. Gee, 5 Call, 481. The whole of the provision of this statute relating to the husband, and that part of the provision relating to the wife which affects her right of dower in real estate, were first incorporated in the law of this state by the Code of 1868. These changes in the statute were evidently made because of other provisions of law which were for the first time adopted in this state by that Code. Among these is chapter 66, concerning the property and rights of a married woman; and clause 2, § 1, c. 78, concerning descents and distributions, which provides, in the case of a person dying intestate as to any real estate of inheritance, it shall descend, "if there be no child, nor the descendants of any child, to the wife or husband of the decedent." And the provision in the Virginia statute restricting the power of the wife to make a will was wholly omitted and repealed.

In respect to dower, the provision of the Virginia Code was retained in the Code of 1868, and is still the law of this state. It is in these words: "If any estate, real or personal, intended to be in lieu of her dower, shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate or the residue thereof." Section 4, c. 70. In this condition of the legislation of this state, this court, in Shuman v. Shuman, 9 W.Va. 50, decided that where a...