Walden and others v. Phillips.
{Court of Appeals of Kentucky. November 15, 1887.)
1. Descent And Distribution—Parent As Heir To Child—Gift From Parent.
Gen. St. Ky. c. 31, & 9, provides that if an infant dies without issue, having title to real estate derived by gift, devise, or descent from one parent, the whole shall descend to that parent and his or her kindred, if there is any; if none, then to the other parent and his or her kindred. Defendant and his wife, both being under age, brought suit against the wife's guardian, on his bond, and obtained judgment. Plaintiff, mother of defendant's wife, filed a petition asking for a receiver for her daughter's money. Defendant was appointed as such receiver, but, before qualifying, by agreement with plaintiff, a large portion of the money obtained on the judgment against the guardian was used to purchase a tract of land, which was conveyed directly to defendant's wife for life, with a remainder to her children. Defendant's wife died after giving birth to a child, and soon afterwards the child died. Held, that the conveyance of the land to the wife for life, with a remainder to the children, was a gift from defendant to his children, and on the death of the child he inherits the land under the statute.
2. Husband And Wife—Husband's Right To Wife's Personalty — Appointment Of
Receiver.
Defendant and his wife, a minor, brought suit against the latter's guardian to recover money due the wife. On the petition of plaintiff, defendant was appointed the receiver of the funds obtained under the judgment. Held, that the appointment of a receiver did not affect the defendant's marital right to the money of the wife, but merely postponed his right to use it until she should attain her majority.
Appeal from circuit court, Henderson county.
John Young Brown, Thos. E. Ward, and Richard & Hines, for appellants. Montgomery Merritt, for appellee.
Bennett, J. The appellee, Charles Phillips, married Mary Moss in 1882. The former was at the time of marriage in his twenty-first year of age, and the latter was not 16 years of age. After their marriage, and while the one was under 21 years of age, and the other under 16 years of age, they instituted suit against George W. White, the statutory guardian of Mary Phillips, formerly Moss, upon his bond as such guardian. Judgment was rendered in favor of the appellee and his wife, Mary Phillips, against George W. White, for the sum of $2,859.82. The appellant, Mrs. Walden, the mother of Mary Phillips, filed a petition and answer in said suit, in which she asked that George W. White, as guardian, be directed to pay her the sum of $825 for the board of Mary Phillips. Mrs. Walden also filed a petition as the next friend of Mary Phillips against the appellee and his wife, Mary Phillips, and George W. White, in which she alleged that Mary Phillips was under 16 years of age at the time she married the appellee; and that she married the appellee without the consent of her statutory guardian or her mother, (her father being dead.) For these reasons Mrs. Walden asked that a receiver be appointed to take charge of the money in the hands of George W. White, as the guardian of Mary Phillips. After judgment had been rendered in favor of the appellee and his wife, Mary Phillips, against George W. White, as guardian, for the sum of $2,859.82, the lower court, upon the facts set forth in the pleadings, appointed the appellee as the receiver of his wife's estate, and directed him, as such receiver, to collect from George W. White the amount of money found to be due by him to his wife, and to pay annually to his wife for her separate use the interest arising from said money. But before appellee executed the bond, which the court required him to execute as such receiver before entering upon the discharge of his duties, an agreement was entered into between him and Mrs. Walden by which $2.400 of money due by George W. White, as guardian, was paid to Haynes for a tract of land which he conveyed to appellee's wife, Mary Phillips, for life, with remainder to her children. This arrangement seems to have been approved by the lower court, and the suits were dismissed. The appellee's wife, Mary Phillips, shortly after giving birth to her first child, died, and not long after her death the child died.
The appellant Mrs. Walden, as the mother of Mrs. Phillips and the grandmother of the child, and the other appellants, as the uncles and aunts of the child on its mother's side, claim this land under section 9, c. 81, Gen. St., which reads as follows: "If an infant dies without issue, having title to real estate derived by gift, devise, or descent from one of his parents, the whole shall descend to that parent, and his or her kindred, as herein before directed, if there is any; if none, then in like manner to the other parent and his or her kindred." It is the settled law of this state (see Duncan v. Lafferty, 6 J. J. Marsh. 47; Smith v. Smith, 2 Bush, 522) that title to real estate derived by an infant by gift, devise, or descent from the maternal grandfather, descends to the father of the infant, if the infant dies without issue. These cases, and others that might be referred to, but it is unnecessary, decide that the section of the statute, supra, relates to such real estate as the infant derives title to by gift, devise, or descent from one of his parents, but not to such real estate as the infant derives title to by gift, devise, or descent from other persons.
But the appellants' contention is that the appellee, by purchasing the land with money which came by his wife, and having the title made to her for life, with remainder to her children, waived his marital rights to the money, and also waived any direct or ultimate interest in the land purchased with the money. Therefore the remainder interest in the land was in fact a gift from Mrs. Phillips to her children. The case of Walls v. Chandler (MS. opinion, 1880) is relied on as sustaining this contention. The facts of that case were that the husband of Mrs. Walls purchased in her name a tract of land, and took a bond for a deed to her and her heirs. The land was paid for with the proceeds of a tract of land descended to Mrs. Walls from her father, and the price of a store which belonged to her. That part of the money which arose from the sale of her land was received by her husband, and paid on the purchase money for the land he purchased in her name. The note for the price of the store was payable to Mrs. Walls, which note was assigned to the vendor of the land to complete the payment for the land. After the land was paid for, it was conveyed to Mrs. Walls' husband for the use and benefit of herself and three children. Two of her children having died after they were 21 years old, and without issue, the question arose as to whether Mrs. Walls or her husband, who was the father of the children, inherited their interest in the land. It was held by this court under section 8, c. 31, Rev. St., which reads as follows: "When a person dies intestate and without issue, having real estate of inheritance, the gift of either of his parents, such parent, if living, shall inherit the whole of such estate,"—that Mrs. Walls inherited the interest of her two children in said land because it was a gift by her to them. The land and store, the proceeds of which were used in the purchase of the land in controversy in that case, belonged absolutely to Mrs. Walls, and her husband by the marriage acquired no title thereto; nor did he, by virtue of the marital relation, acquire any title to the land and store as the administrator, survivor, or distributee of his wife, in case he survived her, but the same would descend to her children. Therefore the husband having received the money arising from the sale of her land for the purpose of paying it, and actually paying it, on other land purchased for her, did not change its legal status. Therefore this court held that the interest of Mrs. Walls' two children in the land thus purchased was a gift from her. The case at bar is not like the case of Walls v. Chandler, supra.
It is well settled by this court that, by the principles of the common law, marriage invests the husband with the legal title to all the personal property, including money, which the wife owns and is in the possession of at the time of marriage, or which may be reduced into possession at any time during coverture. It is also equally well settled by this court that the marriage gives to the husband the legal right to reduce the wife's choses in action into his possession, and, when they are reduced into his possession, they at law become his absolutely; also before they are actually reduced into his possession he has a qualified property in them which ripens into a perfect legal title by the act of reducing them into his possession with the intention of making them his own; also that, by reason of his qualified property in his wife's choses in action, he, in case of her death, is entitled to them to the exclusion of her next of kin, either as her administrator, survivor, or distributee. But as is well settled, the husband may waive absolutely his right to his wife's choses in action, and consent that the legal title to them may remain in her, and in such case, in the event of her dying first, he will not be entitled to them as her administrator, survivor, or distributee, but they will descend to her next of kin. Therefore, if the appellee did not waive absolutely his interest in the money and consent that it might be hers, to the exclusion of his rights, by investing it in the land in controversy for her benefit during her life with remainder to her children, then he did not deprive himself of the right of inheriting the land from his child who died in infancy or without issue; for it will not be contended that if the appellee had reduced the money into his possession as his own, and then had bought the land with it, and had caused the title to be made to his wife during her life, with remainder to her children, that he would not have inherited the title of his child dying in infancy or without issue. Here, however, the appellee did not reduce the money into his actual possession as his own, but he did all in that direction that he could do. He obtained judgment for it; but, under the authority of chapter 52, art. 1, § 21, Gen. St., which provides, in substance, that if any female under 16 years of age marries without the consent of her father or guardian, or of her mother, the court having general equity jurisdiction in the county of her residence shall, on the petition of her next friend, commit her estate to a receiver, who shall hold her estate during her minority, and pay to her separate use the rents and profits of such estate during her minority, and when she shall arrive at the age of 21 years the estate shall be delivered to her. The circuit court restrained the payment of the money to him, and while he was under this legal restraint he, with the consent of the court, purchased the land in controversy with the money. If the money had not been thus invested, it will not be contended that the appellee, upon the death of his wife before she attained to her majority, would not have been legally entitled to the money as her survivor or distributee. No proposition is clearer; for it was not the object of the law-making power, by the provision supra, to deprive the husband of his marital rights in his wife's property, but simply to postpone his right to the use of it until his wife's arrival at 21 years of age, and then, if circumstances justified it, to further postpone his right to the use of it by providing for the further support of the wife out of the estate upon the principle of an equitable settlement. So we think that the action of the circuit court, in appointing a receiver, did not affect the appellee's marital rights to the money, but was merely intended to postpone his right to the use of it until his wife should arrive at the age of 21 years.
As to the proposition that the appellee waived his common-law rights by investing the money in the land, there are two negative answers: (1) The fact that he invested the money in the land—First, for the benefit of his wife during her life; second, for the benefit of her children in remainder—negatives the idea that he intended to surrender to his wife his entire interest in the money, but that he intended out of his interest to give to her only what was equivalent to a life-estate therein, and to give her children the remainder interest therein. (2) The appellee alleged in his answer, and the allegation was not denied, that it was not the intention of himself or his wife to change or alter the course of descent by so investing the money. For the reasons above indicated, we think that the appellee did waive his common-law right to the money, except to the extent of investing the same in the land as a gift to his wife during her life, and at her death as a gift in remainder to her children; and therefore he inherited the land from his infant child. The judgment of the lower court is affirmed.
Source: The Southwestern Reporter, Volume V, Containing all the current decisions, August 8-December 26, 1887, published by West Publishing Company, 1888; Pgs. 757-760
