Meyers' Administrator v. Meyers

• Decision Date: 17 June 1932
• Citation: 244 Ky. 248
• Parties: Meyers' Administrator v. Meyers.
• Court: United States State Supreme Court — District of Kentucky

244 Ky. 248

Meyers' Administrator v. Meyers.

Court of Appeals of Kentucky.

Decided April 22, 1932.

As Modified on Denial of Rehearing June 17, 1932.

1. Descent and Distribution. — In absence of statute to contrary, that wife abandons husband does not bar her right of inheritance in husband's estate.

2. Descent and Distribution. — Wife's living apart from husband without procuring divorce did not bar her distributable share in husband's estate, though separation may have been intended as permanent (Ky. Stats., sec. 1403, subd. 5).

3. Executors and Administrators. — Administrator's refusal to sell personalty of husband's estate, and permitting use thereof in operation of deceased husband's farm, constituted conversion rendering estate liable to wife for property converted (Ky. Stats., sec. 1403, subd. 5).

Appeal from Bullitt Circuit Court.

EUGENE MOSLEY, JR., for appellant.

J.F. COMBS for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellee and plaintiff below, Grace E. Meyers, claiming to be the widow of James B. Meyers, filed this action in the Bullitt circuit court on July 8, 1930, against the appellant and defendant below, George T. Wilson, administrator of the estate of James B. Meyers, by which she sought the recovery of a judgment against defendant in the sum of $750 as her distributable share as such surviving widow, allowed to her in the fifth subdivision of section 1403 of our present Statutes. The answer resisted the recovery sought by the petition upon two grounds: (1) That plaintiff, before the death of her husband, forfeited her right to the allowance for which she contended by abandoning him and taking up her abode with her mother in Cincinnati, Ohio, and (2) that the appraisers of her husband's estate never set apart to her any of the property making up the allowance provided for by the statute, and that there had never been any sale by defendant of the personal property of the decedent, and that many of the specific articles and items composing it were still in existence and on the farm left by decedent in Bullitt county, and that plaintiff's remedy was to require them to be valued and set apart to her in payment pro tanto, or in full of her claim, if ground (1) should be disallowed. Subsequent pleadings and motions made the issues and upon trial a jury was waived and the cause submitted to the court, followed by a judgment against defendant for the full amount sued for to be realized from assets in the hands of the defendant, as administrator, and from that judgment he prosecutes this appeal.

The proof upon defense (1) developed these facts: Mr. and Mrs. Meyers were married on June 13, 1913, and thereafter resided upon a farm owned by the husband in Bullitt county. They had no children and about two years before the husband's death plaintiff left Bullitt county and went to live with her mother in Cincinnati, Ohio, where she seems to have obtained employment, but whether her departure was temporary or permanent does not satisfactorily appear from the testimony. It is shown, however, that defendant occasionally visited her husband in Bullitt county, and there is no testimony to establish that there was ever any friction or domestic trouble between them. It, furthermore, appears that plaintiff's life on the somewhat isolated and remote farm on which they resided was unsatisfactory to her for some cause, and she tried to persuade her husband to go with her, but he declined, though it is not shown that he objected to the course she pursued. But we are not concerned as to what were the facts with reference to the separation, since we have concluded that, there being no divorce legally separating the parties, plaintiff was entitled to her distributable share under the statute, notwithstanding she may have intended the separation to be permanent.

Defendant's counsel cites cases from foreign jurisdictions holding to the contrary; but, upon examination, it will be found that in the majority, if not all, of them there existed an applicable statute expressly providing that a permanent abandonment by the widow of her husband before his death forfeited all her rights under the statute. At any rate such holdings were bottomed upon the construction given by the court to the particular local statute governing the rights of the parties, and are not even persuasive, unless the terms of the statute construed bore some similarity to analogous ones in our statute, which latter we do not find to be true in any of the cited cases. We construed our governing statute, supra, in our opinion in the case of Eversole v. Eversole, 169 Ky. 793, 185 S.W. 487, 488, L.R.A. 1916E, 593, contrary to defendant's contention. In that case the facts were that the widow murdered her husband and was convicted therefor and sentenced to confinement in the penitentiary. She asserted, among other things, her right to the $750 allowed by the statute to surviving widows, and in the opinion we upheld her claim.

In the course of that opinion, wherein the question of forfeiture was treated, we therein said:

"In this state the property rights of a widow in the estate of her deceased husband are controlled entirely by statute. She is entitled to an absolute estate in one-half of his surplus personalty, and to an estate for her life in one-third of his real estate, unless the right thereto has been barred, forfeited, or relinquished. She and the infant children of the decedent are also entitled to have set apart to them, as exempt from distribution and sale, personal property or money of the value of $750. Kentucky Statutes sec. 2132 [applying to real property], and section 1403, subsec. 5. A wife may forfeit her interest in her husband's estate by adultery or...