2 R. S., 22.

Persons divorced

not to marry if

favor of the wife, shall divest either party of the fee-simple title to real estate. (a)

§ 8. A divorce from bed and board shall operate, as to property thereafter acquired, and upon the personal rights from bed & board and legal capacities of the parties, as a divorce from the both are living. bond of matrimony; except that neither shall marry again Dower, curtesy, during the life of the other, and except that it shall not bar curtesy, dower, or distributive right. Such may be revised or set aside at any time by the court rendering it. (b)

and right of distribution saved.

restrained by the wife, and support secured,

§ 9. Where the husband is about to remove himself or Husband may be property, or a material part of it, out of the State, or where there is reason to suspect that he will fraudulently sell, convey, or conceal his property, the wife may obtain the necessary orders for securing alimony for herself and maintenance for their children, without giving surety.(c)

10. A jury shall not be empanneled in any action for

Jury not required divorce, alimony, or maintenance.

Paren's joining to be cared for.

Shakers, children

§ 11. Where a father or widow, or unmarried woman having a child, joins the religious society called Shakers, or any religious society holding similar faith, without having made adequate provision for his or her child or children, the circuit court of the county where he or she resides, or of the county in which any part of his or her property may be, if not residing in this State, may, upon petition of any next friend, appoint a committee to any infant child or child of unsound mind of such father or mother, and make out of his or her estate a provision for the maintenance of such child or children, and take it or them from such parent or society, and provide for the custody thereof.

(a) As a general rule, the father is entitled to the custody of his infant child; but the chancellor, having in view the welfare of the child, will bestow the custody on the mother, in preference to the father, when, from the relative habits, or other circumstances, it shall appear most beneficial to the child to do so. (McBride vs. McBride, 1 Bush, 15.)

(b) A divorce a mensa et thoro does not bar curtesy, dower, or distributive right. (Rich vs. Rich, 7 Bush, 53.)

(c) During the pendency of her suit for alimony and divorce, a vinculo, against her absconding husband, to the extent of the amount of alimony adjudged to her, the plaintiff had the right to make other parties, and recover judgment against them, for money won of her husband by unlawful betting on a horse-race. (Cain vs. McHarry, 2 Bush, 263.)

2. She having a right to sue in her own name for alimony and divorce, had the incidental right in like manner to sue a third party for securing payment of her alimony; and this right is moreover expressly recognized by the 4th section of article 2, chapter 47, of the Revised Statutes. (Ibid, 263.)

3. A man concealing the fact that he had a living wife in Texas, married a second wife in this State, and subsequently abandoned her, the Kentucky wife, being blameless, is entitled to alimony. (Strode vs. Strode, 3 Bush, 227.)

§ 12. Sales and conveyances made to a purchaser with notice, or for the benefit of any religious society, in fraud or hindrance of the right of wife or child to maintenance, shall be void as against them.

ARTICLE IV.

Curtesy-Dower-Conveyances by Married Women-Depos its in Bank-Checks and Receipts.

Sales made to de

fraud wife or child

void.

When entitled to curtesy.

§ 1. Where there is issue of the marriage born alive, the 2R. S., 22-23. 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.(a)

§ 2. After the death of the husband, the wife shall be Dower. endowed for her life of one third of the real estate of which he, or any one for his use, was seized of an estate in feesimple at any time during the coverture, unless her right to such dower shall have been barred, forfeited, or relinquished.(b)

(a) A husband, whose wife had, by antenuptial contract, secured her estate to her separate use, to the exclusion of her husband, will, if he survives her, have the same rights as if no such contract had been made. (Hart vs. Soward, 14 B. M., 305.)

2. A husband, who has assented to the making of a will by his wife, may revoke his assent at any time before the will is probated. (George vs. Bussing, 15 B. M., 563.)

3. A husband, who was not actually seized during the coverture, is not entitled to curtesy in the lands of the wife. (Petty vs. Målier, 15 B. M., 605; Connor vs. Downer, 4 Bush, 631.) 4. The receipt of rent, by the husband, for lands of the wife, is such seizure as will entitle him to an estate in the land as tenant by the curtesy. (Powell vs. Gossom, 18 B. M., 192.)

5. If a husband, entitled to curtesy only, sells a fee-simple, he can only recover of his vendee the value of his life estate. (Ibid, 194.)

6. The possession of the lands of a married woman by her guardian is such a seizure as will entitle the husband to curtesy. (Philips vs. Ditto, 2 Duvall, 549.)

7. Divorce destroys the husband's potential right to curtesy. (Duvall vs. Graves, &c., 7 Bush, 461.)

8. A divorce a mensa et thoro does not bar curtesy, dower, or distributive right. (Rich vs. Rich, 7 Bush, 53.)

(b) Since the Revised Statutes, she is entitled to rent as against the vendee of the husband from the commencement of her suit for dower. (Yancy vs. Smith, 2 Metcalfe, 411.)

2. A sale, by a widow, of her right of dower in land held by her husband's alienee, is embraced by the statute against champerty, and is void, unless he expressly holds subject to her right. (Kingsolving vs. Pierce, 18 B. M., 785.)

3. The interest of a widow, who has renounced her husband's will, cannot be increased or diminished by the will. (Barnett vs. Barnett, ↑ Metcalfe, 259.)

4. A widow who renounces her husband's will has no right to have land, directed by the will to be sold and the proceeds distributed to devisees, treated as personal estate, and have distribution. (Ibid, 258-9.)

5. If an estate be legally settled on a wife, before marriage, as a jointure in lieu of dower; or if, after the death of the husband, she has dower allotted her, in either case, such estate would not be subject to the debts of the husband. But where she takes under the will, she holds the

3. If the wife voluntarily leave her husband and live in For what dower adultery, she shall forfeit such right of dower, unless he is afterwards reconciled to and lives with her.

is forfeited.

estate as devisee merely, and derives no right to it as widow, although the devise may have the effect to bar her claim to dower. (Chambers vs. Davis, 15 B. M., 527.)

6. Where both real and personal property are mortgaged by the husband, in which the wife joins, she will have a right, when, after the death of the husband, a foreclosure is had, to have the personalty applied to the payment of the mortgage debt, and to exclude the general creditors from any participation in the mortgaged personalty until the mortgage debt is paid so as to relieve the land. (Harrow vs. Johnson, 14 B. M., 553.)

7. The widow of one, whose will was made before she became his wife, is not affected by the will, and need not renounce it. (Loughborough vs. Loughborough, 14 B. M., 553.)

8. If the land of an infant husband be decreed to be sold, that the proceeds may be invested in other lands, and he dies after the sale, and before a reinvestment is made, leaving a widow but no children, she will only be entitled to the use of one third of the money for life. (Collins vs. Champ, 15 B. M., 122.)

9. If a husband holds land by executory contract, and sells it before he receives the legal title, and after receiving the legal title conveys it in compliance with his contract, his widow, although she did not unite in the deed, will not be entitled to dower. (Heed vs. Ford, 16 B. M., 117; Gully vs. Ray, 18 B. M., 113.)

10. The wives of surviving partners have no interest in lands held as partnership stock; and the wife of a deceased partner can have none until the partnership debts are paid." ( (Galbraith vs. Gedge, 16 B. M., 635.)

II. A purchaser is not estopped by the husband's deed from showing the nature of his seizin, and that it was not of such a character as entitled his widow to dower. (Gully vs. Ray, 18 B. M., 114.)

12. Though a wife joins with her husband in a mortgage of his lands, and he releases or con. veys his equity of redemption, the wife will, at his death, be entitled to dower, subject to the mortgage debt. (Harrow vs. Johnson, 3 Metcalfe, 581.)

13. A father, in conveying land, expressly stipulated that the son's wife should not, in case she survived him, have dower in the property so conveyed, is no fraud upon her rights. The land was a gift to the son. (Thompson vs. Vance, 1 Metcalfe, 676.)

14. A husband conveyed property to a trustee, for his wife, in order to secure her a home, and then made his will. After his death, the widow renounced his will and claimed dower. Held-She was entitled to it. (Worsley vs. Worsley, 16 B. M., 470.)

15. A petition for divorce must show that the land was owned by the husband during covert(Yancy vs. Smith, 2 Metcalfe, 411.)

ure.

16. Any conveyance of real or personal estate, which is intended by the grantor or devisor to be in lieu or satisfaction of dower, will bar the wife's right of dower. (Yancy vs. Smith, 2 Metcalfe, 411; Tevis vs. McCreary, 3 Metcalfe, 153.)

17. In the allotment of dower in land sold and conveyed by the husband, the widow is entitled to the use of one third, estimated according to quantity, quality, and value, when allotted to her, except so far as the purchaser had increased the value by improvements. (Fritz vs. Tudor, 1 Bush, 28.)

18. A doweress of land, either altogether uncleared or not sufficiently cleared, has a right to clear, or extend the clearing, so far as her full enjoyment of her estate as her home may require; and, to that extent, she has the incidental right to remove the timber, and appropriate it to the expense of her necessary improvements. (Ibid, 28.)

19. By the law of comity, a lien created by the law of Louisiana, in favor of a wife, upon the estate and future acquisitions of her husband, will be enforced in this State. This lien inures to the benefit of the children of such wife; and when her personal property, which came to the hands of her husband, exceeds the value of the estate left by him at his death, a second wife of such husband is not entitled to any distributable share or dower in his estate. (Kendall vs. Coons, 1 Bush, 530.)

20. Creditors who set aside a conveyance of the husband because it was fraudulent and void as to him, are not entitled to a judgment for the sale of the wife's dower in the land conveyed because she signed and acknowledged the deed with her husband. (Lowry vs. Fisher, &c., 2 Bush, 70; Locket vs. James, 8 Bush, 28.)

21. Dower of surviving wife, barred by a conveyance executed by husband and wife, which was adjudged to be within the act of March 10, 1856. Under this statute, the grantee in such

4. The wife shall have dower of real estate, although

Possession is not necessary.

a conveyance holds the legal title of both the grantor and his wife in trust for his general creditors. (Cantrell vs. Risk, 7 Bush, 158.)

22. In an action for the settlement and distribution of a decedent's insolvent estate, the widow failed to answer, the lands were sold, and before the distribution of the proceeds, she asserted and claimed dower in the land. By her failure to answer, she was not estopped further than to abide the sale to an innocent purchaser, and was entitled to the value of her dower interest in the proceeds of the sales of the land. (Meriwether vs. Sebree, 2 Bush, 232.)

The

23. The owner of four hundred acres of land sold one hundred acres off the tract. dower of his widow in the whole four hundred acres should be set apart to her in the remaining three hundred acres. (Lawson vs. Moore, 6 Dana, 471; Morgan vs. Conn, 3 Bush, 58.)

24. In an action to set aside as fraudulent a conveyance of land, in which the vendor's wife did not relinquish her potential right of dower, the vendor's wife being a party to the action during coverture, swore to and filed her answer, alleging that she had, in another deed, relinquished her right of dower in the land in controversy. The deed referred to in her answer was lost, or not recorded, and was not filed in said action, and never made effectual against her. After the death of her husband, she is estopped from recovering dower in the land against the purchasers under the decretal sale. (Craddock vs. Tyler, 3 Bush, 360.)

25. The recognition and enjoyment of an abortive allotment of dower, although it was not altogether eligible and just, for more than twenty years, with their presumed knowledge, precludes purchasers, subject to the dower, from changing or disturbing the boundary so defined. (Hibbs, &c., vs. Evans, 3 Bush, 661.)

26. Courts, as matter of law and legal criterion, have adopted the American life annuity tables, and by consulting these, determine the present value of life estates, when the person upon whose life the estate depends is of ordinary health and vigor for one of that age, subject, however, to be varied on account of unusual vigor or frailty of constitution and health. (See tables in front pages of 3 Bush; Alexander's executor vs. Bradley, 3 Bush, 667.)

27. The wife is estopped from asserting dower in real estate of her husband by announcing publicly to the crowd and bidders at a decretal sale, “that she would not claim dower against any person who should become the purchaser." The disability of coverture could not exonerate her from fraud. (Connolly vs. Branstler, 3 Bush, 702.)

28. A widow is entitled to dower, as legatee by implication, in the life estate which was devised to her husband, with remainder at his death, to pass by the law of descents to his descendants. (Jacob vs. Jacob, 4 Bush, 110.)

29. A fraudulent deed made by the husband, in which the wife relinquished her potential right to dower, was set aside at the instance of creditors; the surviving wife is entitled to dower as against the creditors or purchasers under a mere decretal sale. (Dugan vs. Massey, 6 Bush, 83.)

30. A deed not recorded within eight months does not pass the contingent right of dower of a married woman. (McGuire vs. Bowman, &c., 6 Bush, 550.)

31. A divorce a mensa et thoro does not bar curtesy, dower, or distributive right. (Rich vs. Rich, 7 Bush, 53.)

32. In case of a contract for the payment of an annuity in lieu of dower, if the husband prevents its enforcement by disposing of his property, that would be such an equitable eviction as would relieve her of the contract, and entitle her to dower. (Garrard vs. Garrard, 7 Bush, 436.)

33. The mere presumption of the death of the husband by being absent from the State seven years, without any proof that he was alive within that time, entitles his presumed widow to dower in land conveyed by the husband. (Foulks vs. Rhea, 7 Bush, 568.)

34. The name of the grantor's wife does not appear in the body of a deed made in 1839, but it was signed by her; and upon privy examination, she consented that it should be put to record, Held-This did not amount to a relinquishment by her of her potential right of dower in the trust property. (Prather vs. McDowell, 8 Bush, 46.)

35. The testator devised land to his son, subject to a life estate in his mother. The son's estate in the land was disposed of during his coverture. The son died, leaving a widow and his mother also surviving him. As the son had no right to an actual seizin during his coverture during the life of his mother, his widow was not entitled to dower in the land. (Butler vs. Cheatham, 8 Bush, 594.)

36. A widow having only a dower right cannot procure a sale of the whole property by making it appear by competent proof that her dower could not be assigned therein without materially impairing the value of the whole. (Liederkranz Society vs. Beck, 8 Bush, 597.)

GEN. STAT.-34

wife shall not be endowed.

there may have been no actual possession, or recovery of possession, by the husband in his lifetime.

§ 5. The wife shall not be endowed of land sold but not Of what lands conveyed by the husband before marriage; nor of land sold in good faith after marriage, to satisfy a lien or encumbrance created before marriage, or created by deed in which she joined, or to satisfy a lien for the purchase money. But if there is a surplus of the land or proceeds of sale after satisfying the lien, she shall have dower or compensation out of such surplus, unless the surplus proceeds of sale were received or disposed of by the husband in his lifetime.

bars dower.

§ 6. A conveyance or devise of real or personal estate, by When jointure way of jointure, may bar the wife's dower; 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. When she so demands and receives her dower, the estate conveyed or devised in lieu thereof shall determine and revert to the heirs or representatives of the grantor or devisor. (a)

§ 7. Where the wife is lawfully deprived of her jointure, When jointure is or any part thereof, and not by any act of her own, she shall have indemnity therefor by way of dower or damages, out of her husband's estate.

lost, dower allowed.

Wife entitled to

one third rents

until dower is as

signed.

Rule in allotment

of dower as

purchasers heirs.

to

or

§ 8. The wife shall be entitled to one third of the rents and profits of her husband's dowable real estate, from his death until dower is assigned; and she shall hold the mansion house, yard, garden, the stable and lot in which it stands, and an orchard, if there is one adjoining any of the premises aforesaid, without charge therefor, until dower is assigned to her. (b)

$9. Whether the recovery is against the heir or devisee, or purchaser from the husband, the wife shall be endowed (a) Section 7, article 4, chapter 47, of the Revised Statutes, does not embrace articles, contracts, and jointures entered into between separated husband and wife, to settle existing causes of litigation, and peaceably accomplish, by private contract, what could be obtained by a costly and vexatious litigation. (Loud vs. Loud, 4 Bush, 453.)

2. A contract whereby the intended wife agrees to accept a provision or annuity in lieu of dower, in the event of her surviving her husband, is generally a valid equitable jointure, which, if not rendered unavailable without her consent, will bar her right of dower. (Garrard vs. Garrard, 7 Bush, 436; see Prather vs. McDowell, 8 Bush, 46.)

(b) But being separated from her husband, and not having her residence with him at his death, and not afterward proposing to occupy or control the mansion house, she is entitled to dower only in it, and one third of the annual value thereof. (Rich vs. Rich, 7 Bush, 53-)