Jones v. Somerville

• Decision Date: 10 December 1900
• Citation: 28 So. 940,78 Miss. 269
• Court: Mississippi Supreme Court
• Parties: SUSANNA B. JONES v. MINTER SOMERVILLE

28 So. 940

78 Miss. 269

SUSANNA B. JONES v. MINTER SOMERVILLE

Supreme Court of Mississippi

December 10, 1900

October 1900

FROM the chancery court of Leflore county HON. A. McC. KIMBROUGH Chancellor.

Mrs Jones, appellant, was the complainant and Mrs. Somerville appellee, was defendant in the court below. From a decree dismissing her bill the complainant appealed to the supreme court. The opinion of the court fully states the facts.

Affirmed.

A. A. Armistead, for appellant.

Under the laws of this state, and most of the other states, husband cannot disinherit his wife, either directly or indirectly. This is clearly shown by § 4496, code 1892, wherein power is given the wife to renounce the provisions made for her in the will of her husband if she be dissatisfied with the same, and by § 4497, code 1892, she takes the same interest as though the will was renounced, if there be no provision whatever made for her in the will.

In the case at bar there was provision made for the wife in the will, but the bill alleges that the will was renounced within the time and in the manner provided by law. Therefore the wife, appellant in this case, takes a child's part in the estate of her deceased husband, as provided in § 1549, code 1892, and there being only two children, the wife is entitled to a one-third interest in the estate of her deceased husband.

This contention is admitted by appellee, but it is claimed that while the husband cannot disinherit the wife, either directly or indirectly, he has the right of irrevocable, voluntary conveyance to a child of a former marriage, as in this case, to defeat his wife's inheritance in his estate. In other words, the contention is that a husband may do by deed, to take effect after his death, that which the statute positively prohibits him from doing by will.

It was not the intention of our statutes relating to the property of married women and abolishing dower, to destroy any right a wife had prior to the enactment of the statutes referrep to, nor to take away any rights she may have had prior thereto. The law of this state, when it abolished dower and curtesy, actually increased the property rights of awife, in that it positively forbid a husband from disinheriting her, either directly or indirectly. She has the same right to support out of her husband's estate and the same right to alimony under the present law as she had under the dower rule. Her rights were simply increased from a life estate in a third of her husband's real property which he owned at the time of his death, called dower, to a fee simple title of an equal distributive share with the other heirs of her husband.

How can it be said, then, that the case at bar is out of line with those cases which hold that a husband cannot voluntarily transfer his estate in order to defeat his wife's interest, when the old law gave her only a dower interest, and the new gives her a still greater interest?

In the case of Smith v. Smith, 34 L.R.A. 49, the court will find a decision by the supreme court of California under a statute exactly like that of Mississippi, where "dower and curtesy" have been abolished. In this decision the court holds that "a fraud upon the rights of the wife is committed when the husband strips himself of all his property just before his death, by transferring all of his lands, to defeat the wife's right as his heir, reserving the full use and benefit of the property to the end of his own life." Murray v. Murray, 8 L.R.A. 95, 96; Butler v. Butler, 21 Kan. 521, s.c. 30 Am. Rep., 441; Leach v. Duval, 8 Bush (Ky.), 201; Klien v. Klien, 57 Pa. St., 120, s.c. 98 Am. Dec., 206; Dogan v. Simmons, 38 N.C. 487; Youngs v. Carter, 8 Hun, 199.

The true rule, as laid down by the authorities we have cited above, is that a husband can only make a voluntary conveyance of his property to his children by way of advancement, and then only to the extent of their interest in the estate.

Rush & Gardiner, for appellee.

The reporter has been unable to find the brief of counsel for the appellee; it has been lost from the record.

OPINION

CALHOON, J.

Mrs Jones seeks cancellation of a voluntary conveyance made by her husband, S. B. Jones, a few months before his death, to the appellee, Mrs. Somerville, a daughter of a former marriage, by which he gave her real estate in value equal to about two-thirds of his entire fortune. This conveyance, the bill charges, was executed secretly, without the wife's knowledge, and held by the grantee, Mrs. Somerville, until a day or two after Mr. Jones died, when she...