Mitchell v. Violett

• Decision Date: 04 June 1898
• Citation: 104 Ky. 77,47 S.W. 195
• Parties: MITCHELL v. VIOLETT. [1]
• Court: Kentucky Court of Appeals

47 S.W. 195

104 Ky. 77

MITCHELL v. VIOLETT. ^[1]

Court of Appeals of Kentucky.

June 4, 1898

Appeal from circuit court, Carlisle county.

"To be officially reported."

Action by J. T. Violett, next friend of Susie Mitchell, against L S. Mitchell, for partition. Judgment for plaintiff, and defendant appeals. Reversed.

John W Ray and J. D. White, for appellant.

Z. W Bugg & Son, for appellee.

PAYNTER J.

The appellant, L. S. Mitchell, and his wife, Barbara, were married in 1887. The appellee, Susie Mitchell, the issue of their marriage, was born November 24, 1889. In 1889 the land which is the subject of this controversy was deeded to Barbara, the wife of L. S. Mitchell and the mother of Susie. The mother died in June, 1895, leaving surviving her the husband and daughter. The question presented for our determination is whether the husband is entitled to a life estate in the whole tract of land as tenant by the curtesy or to a life estate in one-third, as provided in the act of March, 1894, known as the "Married Woman's Act." To properly solve the question, it is necessary to determine whether the life estate which the law that was in force at the time of their marriage and the acquisition of the property by the wife gave the husband as curtesy is a vested right. If it is, then the legislature could not deprive the husband of it without his consent.

At common law, as soon as a child of the marriage was born alive, the husband had the right to hold the wife's land during his life, although the wife died without leaving issue. 2 Bl. Comm. 126. This is such a familiar principle, it is unnecessary to call attention to numerous decisions of courts announcing it as a common-law doctrine. At the time the appellant and his wife were married, and at the time she acquired the land, the General Statutes were in force. Section 1, art. 4, c. 52, Gen. St., reads as follows: "Where there is issue of the marriage born alive, the husband shall have an estate for his own life in all the real estate owned and possessed by the wife at the time of her death, or of which another may be then seized to her use. Such estates shall, however, be subject to the debts of the wife, whether contracted before or after marriage." This statute is declaratory of the common law, except as hereinafter stated. At common law the husband, on their marriage, was given an estate in the land of his wife during her life. This estate as well as his curtesy initiate could be sold by him, or it could be sold by his creditors to satisfy his debts, but the statute which gave the husband the use of the wife's land and curtesy provided that these interests or estates should not be sold to satisfy a liability of the husband. To that extent the common law is changed. Under the statute which we have quoted, as soon as issue of the marriage is born alive the husband has an estate in his wife's land as tenant by the curtesy initiate, and upon the death of the wife his estate in her land is as tenant by the curtesy consummate. When there is an issue born alive, he is tenant by the curtesy initiate, which is a vested estate. Under the statute, a wife cannot dispose of her real estate unless her husband join with her in the deed of conveyance. It is suggested that its language does not give him an estate in her land as tenant by the curtesy...