Ferguson v. Ferguson

• Decision Date: 15 May 1913
• Citation: 156 S.W. 413,153 Ky. 742
• Parties: FERGUSON v. FERGUSON et al.
• Court: Kentucky Court of Appeals

156 S.W. 413

153 Ky. 742

FERGUSON v. FERGUSON et al.

Court of Appeals of Kentucky.

May 15, 1913

Appeal from Circuit Court, Pike County.

Suit by Florence Ferguson (now McCoy) against J. M. Ferguson and others for the assignment of dower out of certain lands belonging to her deceased husband, C. V. Ferguson. Judgment for plaintiff, and defendant J. M. Ferguson appeals. Affirmed.

George Pinson, Jr., and Staton & Pinson, all of Pikeville, for appellant.

J. S Cline, of Pikeville, for appellees.

CARROLL J.

The appellee Florence McCoy, before her marriage to C. F. McCoy was the widow of C. V. Ferguson, who died in 1907, leaving surviving him as his only heirs at law his widow, now appellee, and one infant son. This suit was brought by the appellee for the purpose of having dower assigned her as the widow of C. V. Ferguson in a tract of land described in the petition.

To this suit the appellant, J. M. Ferguson, father of C. V. Ferguson became a party, and in his petition and amended petition he averred that the land in which appellee sought to have dower assigned was conveyed to him by his father for life, with remainder to his children, and that as C. V. Ferguson only had a remainder interest in the land at the time of his death his widow was not entitled to dower. He further averred that C. V. Ferguson had never been in possession of any part of the land in which dower was asserted. In an amended petition he set up that appellee, by her adulterous acts and conduct while she was the wife of C. V. Ferguson, forfeited her right to dower.

The appellee, by appropriate pleading, controverted the affirmative matter in the petition and amended petition filed by appellant, and after the evidence had been taken the case was submitted and a judgment entered, giving appellee the relief sought.

In respect to the defense made by appellant that C. V. Ferguson only had a remainder interest in the land and had never been in possession, it appears to be admitted on the record that some time previous to the death of C. V. Ferguson the appellant, in a suit brought by him to have the land conveyed to him by his father divided, waived and relinquished in binding form, and for sufficient reason, his life interest in a part of this land, and by consent and agreement of all parties there was allotted to C. V. Ferguson, free from the life estate of his father, the land in which appellee asserted her right to dower; so that this feature of the case need not be further noticed.

The next contention of counsel for appellant is that appellee is not entitled to dower because her husband was never in the actual possession of the land of which he died the owner in fee. Section 2132 of the Kentucky Statutes provides in part that, "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 he or she, or any one for his or her use, was seised of an estate in fee simple during the coverture, unless the right to such dower or interest shall have been barred, forfeited or relinquished." Under this statute it is not essential to entitle the widow to dower, that her husband should have been in the actual possession of the land owned by him in fee at the time of his death, or indeed at any time. The test of the widow's right to dower is: Was the husband seised of an estate in fee simple during coverture, and did he have the right of possession? If so, although he may never have been in the actual possession, the widow is entitled to dower. Butler v. Cheatham, 8 Bush, 594; Rice v. Rice, 133 Ky. 406, 118 S.W. 270.

The remaining question relates to the charge of adultery. Section...