Grider v. Eubanks

• Decision Date: 13 January 1877
• Parties: Grider v. Eubanks, & c.
• Court: Kentucky Court of Appeals

75 Ky. 510

Grider v. Eubanks, & c.

Court of Appeals of Kentucky.

January 13, 1877

APPEAL FROM WARREN CIRCUIT COURT.

J. W GORIN FOR APPELLANT.

1. The devise to appellant by her husband of his whole estate was of no value to her, as the whole estate was consumed in the payment of his debts.

2. A deed containing no words of grant or release on the part of the wife is wholly insufficient as to her. (Hatcher and wife v. Andrews, & c., 5 Bush, 561; 1 Wash. on Real Property 231.)

3. When the husband conveys land and warrants title, the wife, if she claims dower, will be barred to the extent of the value of all she receives by devise from him.

4. The right of the widow to dower without relinquishing the will (sec. 13, chap. 30, Revised Statutes) carries with it the burden of answering for the value of any bequest to her. Responsibility of appellant upon the warranty of her husband depends on the answer that may be made to the question whether property " come to" her by devise from the grantor. Sec. 18, chap. 80, Revised Statutes establishes the measure of her liability, making her answerable for the value of the property that came to her by devise from her husband.

The words " come to" in the statute (sec. 18, chap. 80 Revised Statutes) in their popular and legal sense import a vestiture of title. Having lost the property devised to her (sec. 8, art. 4, chap. 47, Revised Statutes) without fault on her part, the law confers upon her the right to have dower without attaching value to or charging her with the property devised to her.

5. Assuming that the devise to appellant was by way of jointure and in lieu of dower. " The term jointure had a well-known legal signification, and must be presumed to have been used in the statute in that sense." (Yancy v. Smith, 2 Met. 410.) At common law the requisites to a legal jointure were four, and the fourth one was that it must be made, and so in the deed particularly expressed to be in satisfaction of the whole dower of the wife, and not of any particular part of it.

Section 7, statute 27, Henry VIII, chapter 10, provided that if by fraud or accident a jointure made before marriage proved to be on bad title, and the jointress was evicted or turned out of possession, she should then have her dower at the common law. This is the rule of law preserved by the statutes of this state to this day. Act of 1796 (1 M. & B. 576), sec. 8, art. 4, chap. 47, Revised Statutes.

If there be estate sufficient without taking lands aliened by the husband, she is required to have her indemnity by way of damages out of her husband's estate. But when, as in this case, there is no property left, and the widow is deprived of the provision made for her by way of jointure, and not by any act of her own, the statute says imperatively that she shall be indemnified by way of dower. Dower relates to land, and when she is remitted to her right of dower the words " husband's estate " mean dowable estate, and are as broad as her jointure. (Tevis's ex'rs v. McCreary, & c., 3 Met. 151; 2 Scribner on Dower, sec. 84, p. 408; Ibid, sec. 86; 1 Wash. on Real Prop. sec. 20, p. 303; sec. 29, p. 310.)

H. J. CLARK FOR APPELLEES.

1. The will " I hereby make this as my will. I give and bequeath to my wife, Fanny, all personal and real estate and property of which I may die possessed, or which may belong to me at my death. Nov. 9, 1869, B. C. Grider," created a jointure and put the widow upon her election to accept or reject.

By the common law when an instrument says it is a jointure then it is one; or when from the terms of the instrument it can be or is inferred that it is made in lieu of dower, then it is a jointure. (Adsit v. Adsit, 2 Johnson, chap. 447.)

2. Appellant elected to take under the will, and never renounced it.

" An election is by entering upon land devised as well as by matter of record where it is done with full knowledge of the facts in respect to the provisions. But ordinarily whenever a widow fairly and understandingly has elected to take the provisions of a will instead of dower she can not revoke it and claim dower." (Washburne on Real Property, sec. 25, p. 272.)

Her election to take under the will barred her right to dower. (Sec. 7, art. 4, chap. 47, Revised Statutes; sec. 13, chap. 30, Revised Statutes Vance and wife v. Campbell, 1 Dana, 231; Shaw v. Shaw, 2 Dana, 344; Tevis's ex'rs v. McCreary, 3 Met. 154; 7 Howard, Miss., 665; 2 Scribner on Dower, 273.)

3. Jointure applies to property aliened by the husband. (1 Wash. on Real Property, sec. 24, p. 307, note 3.)

4. Can't avoid jointure on the ground of mistake. (1 Hilliard, p. 136; Douglas ads. McDaniel, 6 Humph. Tenn., 230.)

5. A wife standing by, seeing her husband's land sold, saying she will not claim dower, can not afterward claim. (3 Bush, 702.)

6. A deed is good against the wife as to dower, though her name is not in the body of the deed. (2 Freman, Ill., 185.)

OPINION

LINDSAY CHIEF JUSTICE:

Ben. C. Grider, who died in 1872, devised all his estate, real and personal, to his wife, Fanny W. Grider. A few days after his death his will was regularly probated, and his widow and sole devisee, was appointed the administratrix of his estate. More than three years after she had undertaken the execution of the will, she instituted this action in the Warren Circuit Court against divers persons, the vendees direct or remote of her late husband. She claimed that she was entitled to dower in the lands held by them, and asked that it should be allotted her.

Among other defenses relied on by the appellees, they insist that by accepting the provisions of her husband's will Mrs. Grider barred her right to assert this claim to dower, even though it should turn out that her supposed relinquishments (she having joined her husband in his various conveyances) are invalid, because not made in accordance with the statute.

She attempts to meet this defense by averring and proving that the estate of her late husband is utterly insolvent, and that she...