Kennedy's Adm'r v. Kennedy
| Decision Date | 11 November 1924 |
| Docket Number | 5096. |
| Citation | 125 S.E. 337,97 W.Va. 491 |
| Parties | KENNEDY'S ADM'R v. KENNEDY ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 28, 1924.
Syllabus by the Court.
Under paragraph 3 of section 9, c. 78, Barnes' Code 1923, the widow of an intestate is entitled to one-third of the personal estate of her intestate husband after payment of funeral expenses, charges of administration, and debts, if he leaves children by that or a former marriage; and if she dies before distribution of the personal estate has been made, her personal representative is entitled to the distributive share which she would have received if living at the time of distribution.
Appeal from Circuit Court, Monongalia County.
Action by Isaac N. Kennedy's administrator against Mary Kennedy and others. From judgment rendered, certain defendants appeal. Reversed and remanded.
Baker & Posten, of Morgantown, for appellants.
Glasscock & Glasscock, of Morgantown, for appellee.
Isaac N. Kennedy died intestate on January 12, 1923, survived by his wife, Anna Kennedy, and four children, one of whom, Mary Kennedy, then 11 years of age, was by his last wife, Anna and the other three children, Jesse E. Kennedy, Edna E Kennedy, and Grace V. Morris, were by former wives, then deceased. His real estate was appraised at $4,000, and the personal estate at $14,606.10. M. W. Ogden was duly appointed as his administrator, paid off the debts, funeral expenses and costs of administration, and had in his hands for distribution $13,119.68. On July 26, 1923, Anna Kennedy, the widow, died testate, leaving her estate to her infant daughter Mary. John Eddy, one of the appellants, qualified as her administrator.
This suit was instituted by Ogden, the administrator of Isaac N Kennedy, asking that the distributees of the personal estate be judicially determined, and the amounts to be distributed to each be decreed; and the children above named, together with John Eddy, the administrator of the estate of Anna Kennedy with the will annexed, were impleaded.
Mary, the infant child, by her guardian ad litem and by Eddy, the administrator of her mother's estate with the will annexed, claims that she is entitled to one-third of the personal estate of her father Isaac by inheritance from her mother; while the other children claim that she should share alike with them in the distribution. She claims that she takes the one-third by inheritance from her mother Anna who was entitled to one-third of the personal estate on the death of Isaac, her husband; while the other children claim that Anna, the widow, had no interest in her husband's personal estate which she could devise, never having had possession thereof in her lifetime, there having been no distribution by Isaac's administrator at the time of her death, July 26, 1923. Upon submission of the cause upon bill, demurrers thereto, and answers the court decreed that the personal estate of Isaac N. Kennedy should be distributed to the four children in equal amounts to each; and the guardian of Mary Kennedy and administrator of Anna Kennedy, deceased, with the will annexed, prosecute this appeal.
The controlling question is whether Anna Kennedy, the surviving widow of Isaac N. Kennedy, had such an interest in one-third of his personal estate which she could dispose of by will, she having died before distribution of the personal estate by Isaac's administrator. Section 9 of chapter 78, Code, directs to whom the personal estate of an intestate shall be distributed, and by paragraph 3 thereof it is provided:
"If the intestate leave a widow and children by the same or a former marriage, the widow shall be entitled to one-third of the said surplus, and if he leaves no children, she shall be entitled to the whole thereof."
The word "surplus" means what remains of the estate after payment of funeral expenses, charges of administration, and debts. This statute gives to the widow one-third of the surplus as her distributive share. A decedent having failed to make a testamentary disposition of his personal property, the statute makes it for him. The statute "distributes" the personal estate and the widow is "entitled" to one-third of the surplus. Many decisions designate her as a distributee. Graham v. Graham, 10 W.Va. 355; Findley's Ex'rs v. Findley, 11 Grat. (Va.) 438; Bliss v. Spencer, 125 Va. 36, 99 S.E. 593, 5 A.L.R. 619; Nelson v. Kownslar, 79 Va. 475.
While the wife had no interest in the personal estate of her husband at common law, and now takes by virtue of the statute only, it may be conceded that natural equity and good conscience would accord to her some claim to the personalty, for the marriage makes them one, and often the accumulation of such property is the result of their joint efforts. So statutes have been passed according to her a distributable interest, varying in amounts in various jurisdictions, based no doubt upon her natural right, as well as to provide for her necessities. A widow seeking to enforce her rights under such statutes is entitled to the same remedies as other distributees. Howard v. Strode, 242 Mo. 210, 146 S.W. 792, Ann.Cas. 1913C, 1057. It is not contended that she would not be entitled to one-third of the personal estate had she lived until the administrator had made distribution, or that she could not have forced distribution after one year had he delayed without justification in doing so, or that once having reduced her distributive share to possession, she would not have had the right of disposition.
The point contended for by appellees is that, not having come into possession, her right in the distributive share is defeated and reverts to the husband's estate, or perhaps, never has passed from the husband's estate, and should descend to his remaining distributees. It is pointed out that under the common law a husband had no right to his wife's personal property, unless he reduced it to possession, and, unless he did so reduce it to actual possession, his distributees could not take it by descent or by his will; and it is argued that by analogy the wife should have no property right in her husband's personalty, unless she likewise reduced it to possession. At common law the husband was entitled only to the wife's personal property of which she actually had the beneficial possession. Her possession was his possession. Husband and wife were regarded as one. Here we have a statute which entitles the wife to one-third of her husband's personal estate without reference to whether he did or did not have possession. His choses in action are part of his personal estate, and are distributed under the statute of descents and distribution.
The common-law rule has little application in construing the statute. It is pointed out that there is no provision that the widow's one-third distributive share, if there are children, or all of the personal estate, if there be no children, shall go to her and her "descendants." And it is argued that the Legislature did not intend that her estate should be benefited if she was not living when distribution was made, because it left out the direction that it should go to her descendants; whereas, in paragraph 1 of...
To continue reading
Request your trial