Phillips v. Farley

• Decision Date: 28 February 1902
• Citation: 66 S.W. 1006,112 Ky. 837
• Parties: PHILLIPS v. FARLEY et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 1006

112 Ky. 837

PHILLIPS v. FARLEY et al. ^[1]

Court of Appeals of Kentucky.

February 28, 1902

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by W. C. Farley and others against Amos Phillips and Rosa Booth for a sale of land and division of proceeds. Judgment for a sale of the land, and defendant Amos Phillips appeals. Affirmed.

Thos E. Ward, for appellant.

M Merritt and S. V. Dixon, for appellees.

DU RELLE, J.

This record presents a controversy between the surviving husband of Susan Farley Phillips on one side and her relatives on the other. The appellant and his wife intermarried in December 1892. In January, 1893, the land in controversy was conveyed to her in fee simple. On March 15, 1894, the act relating to husband and wife, known as the "Weissinger Act" (section 2127, Ky. St.), was enacted, and took effect in June, 1894. In January, 1895, Susan Farley Phillips died leaving an infant child, Bettie Phillips, who died in June 1895, about six months old. The trial court adjudged that the Weissinger act applied to the surviving husband's rights in the land, and that he took dower therein, and was not entitled to an estate by the curtesy. The appellant has appealed, contending that as section 1, art. 4, c. 52, Gen. St., was in force at the time the marriage took place and when the land was conveyed to the wife, the husband was entitled to an estate for life in the entire tract as tenant by the curtesy. In the case of Rose v. Rose (Ky.) 46 S.W. 524, 41 L. R. A. 353, it was held that the right of the husband given by section 1, art. 2, c. 52, Gen. St., to the use of his wife's land, and to rent it for three years at a time, and receive the rents therefrom, as a statutory substitute for the ancient tenancy by the marital right, became a vested right in the husband as to lands owned by the wife, of which he could not be constitutionally deprived by the subsequent passage of the act of 1894. In the subsequent case of Mitchell v. Violett (Ky.) 47 S.W. 195, it was held that where the marriage took place, the land was acquired by the wife, and a child was born alive of the marriage before the act of 1894 took effect, the surviving husband had a vested estate for life in the whole of the land owned by the wife. The writer of this opinion did not concur in the doctrines announced in the Rose and Violett Cases. But, accepting those cases as the law of this commonwealth, it follows that the case at bar must be decided in accordance with the doctrine there laid down.

On behalf of the appellees it is claimed that while the statutory right to use and lease the wife's land was vested in the one case upon the marriage, and the estate by the curtesy in the other case became vested upon the birth...