Smith v. Perkins

• Decision Date: 16 May 1912
• Citation: 146 S.W. 758,148 Ky. 387
• Parties: SMITH v. PERKINS.
• Court: Kentucky Court of Appeals

146 S.W. 758

148 Ky. 387

SMITH v. PERKINS.

Court of Appeals of Kentucky.

May 16, 1912

Appeal from Circuit Court, Hancock County.

Action by Carrie M. Smith against Louisiana Perkins. Judgment for defendant, and plaintiff appeals. Affirmed.

R. A Miller, of Owensboro, E. E. Kelly, of Newport, and C. S Walker, of Owensboro, for appellant.

Humphrey & Humphrey, of Louisville, and John D. Kelley, of Hawesville for appellee.

LASSING J.

W. L Smith died a resident of Hancock county, Ky. in 1905. He left a will dated February 2, 1901, which was in due time admitted to probate. He was survived by his widow, Carrie M. Smith, and his father, Joseph G. Smith, as his only heirs at law. By his will, the testator gave to his widow all of his personal property, a life interest in a tract of land described in the will as the "home place," and also a life interest jointly with his father in certain lands in Breckenridge county, Ky. and provided that, if she survived his father, she should have the whole of this Breckenridge county land for life. The fee to all of said property was devised to his sister, Louisiana Perkins. Each of these tracts of land is described with particularity in the will. There was no attempt to dispose of the after acquired property. It appears that in 1903 and 1904 the testator inherited and purchased certain other lands, and owned same at the time of his death. Following his death, his widow received the property which the will gave to her, and Joseph G. Smith, testator's father, claimed the lands that were acquired by testator after his will was made, of which he made no disposition in his will, and shortly after the death of his son conveyed the same to his daughter, Louisiana Perkins. Thus matters stood until in January, 1911, when the widow conceived that she was entitled to a dower interest in the lands which were owned by her husband at the time of his death and which were not attempted to be disposed of by him in his will, and filed a suit in the Hancock circuit court against Mrs. Louisiana Perkins, in which she sought to recover her dower interest in said lands, together with its reasonable rental value, for the time that same had been held by the defendant. A demurrer was filed to this petition, but not acted on. Thereafter the defendant filed an answer in two paragraphs. In the first paragraph, the defendant denied that the plaintiff was entitled to a dower interest in the lands in controversy. In the second, he pleaded affirmatively that, under the will of her husband, the plaintiff received property of the value of at least $25,000, and that she had held and possessed same since the date of the probate of the will in 1905; that the total value of the estate of her husband was less than $45,000; and that by reason of plaintiff having received this property under the will of her husband, and having failed to relinquish her claim under the will, she was estopped from asserting a right to dower in the lands in controversy. A demurrer was filed to this answer. The demurrers to the petition and answer were considered together, and the court was of the opinion, and so indicated, that plaintiff was not entitled to the relief sought. Thereupon she tendered, and was permitted to file, an amended petition, in which she reiterated all the facts set up in her original petition, and in addition thereto alleged that it was not the intention of her husband, in making the provision which he did in his will for his wife, to deprive her of her right to dower in the lands thereafter acquired by him, and which were undisposed of; that he frequently stated that he intended that his wife, the plaintiff, should have her dower interest in said lands, but that he was taken sick and died suddenly, without having had the opportunity to express in writing this intention. The court sustained a demurrer to this amended pleading, the plaintiff declined to plead further, the petition was dismissed, and she appeals.

The record before us presents the single question whether or not a widow, who receives a part of her husband's estate under his will, can, without renouncing the provisions made for her in the will, claim dower in lands as to which her husband died intestate.

Section 2132, Kentucky Statutes, provides: "After the death of either the husband or wife, the survivor shall have an estate for his or her life in one-third of all the real estate of which he or she, or any one for his or her use, was seised of an estate in fee simple during the coverture, unless the right to such dower or interest shall have been barred, forfeited or relinquished; and the survivor shall have an absolute estate in one-half of the surplus personalty left by such decedent." Section 2136, Kentucky Statutes, provides: "A conveyance or devise of real or personal estate, by way of jointure, may bar the wife's interest in the property and estate of the husband; but if made before marriage, without her consent, or during her infancy or after marriage, she may, within twelve months after her husband's death, waive the jointure by written relinquishment, acknowledged or proved before and left with the clerk of the county court, and have her dower or share of his estate as herein provided. When she so demands and receives her dower, or such share of his estate, the estate conveyed or devised in lieu thereof shall determine and revert to the heirs or representatives of the grantor or devisor."

Section 1404, Kentucky Statutes, provides: "When a widow claims her dowable and distributable share of her husband's estate, she shall be charged with the value of any devise or bequest to her by his will; or she may, though under full age, relinquish what is given her by the will, and thereupon receive her dower and distributable share as if no will had been made; but such relinquishment must be made within twelve months after the probate and acknowledgment before and left for record with the clerk of the court where probate was made, or acknowledged before a subscribing witness, and proved before and left with the clerk; but if, within said twelve months, an appeal be taken from the judgment of the county court probating the will, the widow shall not be required to make such relinquishment until within the twelve months succeeding the time such appeal is disposed of. Nothing herein shall preclude the widow from receiving her dowable and distributable share, in addition to any devise or bequest made to her by the will, if such is the intention of the testator, plainly expressed in the will, or necessarily inferable therefrom."

As stated, the testator died in 1905. Under his will, which was probated during the same year, his widow received all of his personal property and a life interest in certain real estate and had...