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according to the value of the estate when received by the heir, devisee, or purchaser, so as not to include in the estimated value any permanent improvements he has made on the land. Against the heir or devisee or his alienee, her claim for rent shall not exceed five years before action; and against a purchaser from the husband, shall only be from commencement of action. In either case it shall continue up to final recovery. If, after action brought, the widow or tenant dies before recovery, the rent may be recovered by her representative and against his heirs, devisees, and representative.
§ 10. The wife shall not be barred of dower by reason of any judgment rendered by default or collusion against the husband, if she would be entitled to dower had there been no such judgment. Nor shall an heir be bound by any collusive or ex parte assignment of dower, except so far as she shows herself to have been justly entitled thereto.
§ 11. Where the lands are not severally held by different devisees or purchasers, it shall not be necessary to assign dower out of each separate portion, but an equitable allotment may be made in one or more parcels, in lieu of the whole.
Judgment by le no bar to dower.
fault or collusion
Heir not bound lotment.
by collusive al
R. S., be assigned
27. How dower may
12. If the husband held land by executory contract only, the wife shall not be endowed of the land, unless he owned such equitable right at his death.(a)
§ 13. If real estate be conveyed or devised to husband No right by surand wife, unless a right by survivorship is expressly provided for, there shall be no mutual right to the entirety by survivorship between them; but they shall take as tenants in common, and the respective moieties be subject to curtesy or dower, with all other incidents to such a tenancy.(b)
§ 14. A divorce bars all claim to curtesy or dower.
No dower equitable estate if sold by hus
Divorce bars curtesy and dower.
(a) Dower of surviving wife is barred, in land for which her husband held a bond for the legal title, by a decretal sale of the land, and a conveyance of the legal title to the purchaser during his life for the partial satisfaction of the claims of creditors, and the full satisfaction of his vendor's lien. (Sections 6, 13, article 4, chapter 47, Revised Statutes.) Under the 6th section, there being no surplus of land, the utmost right of the widow is her interest in the surplus proceeds after paying off the vendor's lien. (Tisdale vs. Risk, 7 Bush, 139.)
(6) The father, in 1837, conveyed to his daughter and her husband certain lands, to them and their heirs forever. The daughter died in 1861, leaving children. The husband mortgaged these lands in 1865. The children of the wife resisted the foreclosure of the mortgage on one half of these lands, claiming that, by the Revised Statutes, the right of survivorship was abolished in such estates. Held-That the Revised Statutes were not retrospective unless expressly so declared; and the survivor took the whole of said lands under and by virtue of the original conveyance. (Elliot vs. Nichols, 4 Bush, 502.)
§ 15. If any stock in any of the banks or other corpora
Bank stock of the tions of this State is taken for or transferred to any female,
wife to pass to her heirs.
and it is expressed on the face of the certificate or transfer book of such stock that it is for the use of such female, no husband of hers shall take any interest in such stock or the dividends thereon; and at her death it shall pass to her heirs; but if unmarried, she may dispose of it by will; or if married, so dispose of it with the consent of her husband, or without such consent, if so provided in the deed or will creating the trust. She may receive the dividends, and give acquittances therefor, though married; but she shall not, in any way, anticipate the same; nor shall any dividend be paid upon an order or power given by her, before the same. is declared.
16. Married women and minors may make deposits in Myers' Sup., 727. incorporated institutions authorized to receive deposits; and their checks or receipts for the same shall be valid to the same extent as if they were not married, or of full age.
Married women and minors may make deposits.
§ 17. Separate estates and trust estates conveyed or de
2 R. S., 28; Acts Vised to married women, may be sold and conveyed in the
estates may be
Seld, unless for
bidden by deed or will.
Separate & trust Same manner as if such estates had been conveyed or deVised absolutely, if there be nothing in the deed or will under which they are held forbidding the same, and if the trustee and husband unite with the wife in the conveyance. But her interest shall be the same in the proceeds as it was in the estate. (a)
(a) The separate estate of a married woman is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. (Petty vs. Malier, 14 B. M., 247.)
2. The rents and profits of the lands of the wife are not separate estate for her exclusive use, and subject to her exclusive control, without regard to the circumstances of herself and her husband and family. (Smith vs. Long, 1 Metcalfe, 488.)
3. In order to create a separate estate in a married woman, an intention to do so should be clearly expressed in the instrument; and language should be used clearly expressing the exclusion of the husband, or else it should contain some direction, with respect to the enjoyment of the estate, wholly incompatible with any right in him to control it in any manner. (Johnson vs. Furgerson, 2 Metcalfe, 508; Toombs vs. Stone, 2 Metcalfe, 521.)
4. A deed, the habendum of which is in these words, "to have and to hold the said tract or parcel of land, with its appurtenances, unto the said party, and her heirs and assigns, to their only proper use, benefit, and behoof forever," does not invest the wife with a separate estate. (Johnson vs. Furgerson, 2 Metcalfe, 506.)
5. A deed conveyed land in trust for “the use, and benefit, and support” of the wife and her children; "to have, use, and enjoy every part and parcel, to be controlled by her for her comfort and support, and for the support and education of her children." Held-It created a separate estate. (Toombs vs. Stone, 2 Metcalfe, 521.)
6. If a husband conveys property to a trustee, to be held, and the proceeds paid to his wife, who lives apart from him, it will be held to be a separate estate. (Gaines vs. Poor, 3 Metcalfe,
7. No particular form of words is necessary to create a separate estate in a married woman,
Any words clearly showing an intention to do so are sufficient. (Hutchinson vs. James, 1 Duvall, 76; Hathaway, &c., vs. Yeaman, 8 Bush, 391.)
8. The right of the wife to a separate estate in personalty, though of modern origin, is now a well established principle of equity, and is applied in all cases where it is manifestly intended that the property is designed to be conveyed to the separate use of the wife. (Brown vs. Alden, 14 B. M., 145.)
9. If notes are executed by a husband to his wife, it is not necessary, in order to give her a right to the money for her separate use, that the notes should so express it. (Maraman vs. Maraman, 4 Metcalfe, 89.)
10. A married woman may, with the assent of the husband, with money due to her in her own right, and which has not been reduced to possession, buy personal property, to be held as her separate estate. (McClannahan us. Beasley, 17 B. M., 114; Tinsley vs. Roll, 2 Metcalfe, 510; Walton vs. Broaddus, 6 Bush, 328.)
II. Land conveyed to a married woman for her separate use, and not subject to the debts of her husband, may be charged by the wife, and sold to debts, contracted by the husband and wife, evidenced by their note. (Sweeney vs. Smith, 15 B. M., 327.)
12. A married woman has a right to charge her separate estate, by her separate note; and the execution of the note will be evidence of an intention to charge it; and a court of equity will subject it to the payment of the note. (Lillard vs. Turner, 16 B. M., 376.)
13. The execution, by a married woman, of a note or bond, or the indorsing of a bill of exchange, will be evidence of an intention to charge her real estate; but her personal estate may be charged by such acts and circumstances as show an intention on her part to charge it. (Burch vs. Breckinridge, 16 B. M., 487.)
14. Separate estate in personal property may be created in a married woman by a parol gift. (Walton vs. Broaddus, 6 Bush, 328.)
15. Within the scope and prescribed limitations of the deed of trust, the sole beneficial owner of the estate was, though covert, yet in law a feme sole, and as such, could consent to the sale and conveyance by her trustee as effectually without as with her husband's concurrence. (Duvall vs. Graves, 7 Bush, 461.)
16. A wife's general property during her infancy may be converted into separate estate by an antenuptial settlement and conveyance to a trustee by the wife and husband; and the husband is estopped by his concurrence in the deed of trust. (Ibid, 461.)
NOTE.-Section 17 of article 4, chapter 47, of the Revised Statutes, is omitted by the General Statutes. The decisions of the Court of Appeals construing said section will be found in the following cases, viz: Daniel vs. Robinson, 18 B. M., 306; Williamson vs. Williamson, 18 B. M., 385; Hanley vs. Downing, 4 Metcalfe, 96; Stacker vs. Whitlock, 3 Metcalfe, 244; Stuart vs. Wilder, 17 B. M., 59; Lewis vs. Harris, 4 Metcalfe, 356; Dent vs. Breckinridge, ▾ Duvall, 246; Gatewood vs. Bryan, 5 Bush, 509.
An Act to amend chapter 47 of the Revised Statutes, entitled "Husband and Wife."
1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That section 4, article 2, chapter 47, of the Revised Statutes, be so amended as to read as follows:
? 2. Where the husband abandons the wife, and lives separate and apart from her, or abandons her and leaves the State, without making sufficient provision for her maintenance; or where he is confined in the penitentiary for an unexpired term of more than one year; or where he becomes permanently deranged in his mind so as to be incapable of managing his estate or transacting ordinary business, the wife may, by petition in equity, be empowered to use, enjoy, and sell, for her own benefit, any property she may acquire thereafter, or may have acquired or inherited since the abandonment or leaving the State, or becoming unable to transact business from mental derangement; to make contracts, sue and be sued, as a single woman; and also to recover in her own name any property, debt, or choses in action to which she is entitled, or to which the husband is entitled in her right. She may also be empowered to sell and convey, by her own deed, any of her real estate freed from any claim of her husband, or dispose of the same by will: Provided, That in case insanity is the cause of such incapability, he shall have been adjudged a lunatic by a competent jury.
Approved March 28, 1873.
An Act for the benefit of married women in this Commonwealth.
1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That the wages and compensation of married women, for service and labor done and performed by them, shall be free from the debts and control of their husband; and their employers are allowed to pay such wages and compensation directly to such married women, and payment to them shall be a full discharge and acquittance of the employer.
2 This act to take effect from and after its passage.
Approved April 11, 1873.
IDIOTS AND LUNATICS.
ART. 1. Custody of their Estates and Persons.
2. Money drawn from the Treasury for the Support of Idiots-Mode and Manner of Inquest.
Custody of their Estates and Persons.
2 R. S., 33. Myers' Sup.,270, Jurisdiction of
their persons and
§ 1. The several courts having general equity jurisdiction in this Commonwealth have power and jurisdiction within their respective counties over the care and custody of the courts having a persons and estates of all idiots, lunatics, those who, from risdiction over confirmed bodily infirmity, are unable to make known to others by sign, speech, or otherwise, their thoughts or desires, and by reason thereof incompetent to manage their estates, and those whose minds, on account of any infirmity or weight of age, have become so imbecile or unsound as to render them incompetent to manage their estates; as also over their committees, with power to appoint,, suspend, and remove committees for them, upon the same terms and in the same manner as is given over the persons, estates, and guardians of infants. (a)
§ 2. The courts aforementioned may, on the application Real estate may of a committee, order the sale of the whole or any part of
be sold to pay
debts, or formain the real estate of an idiot, lunatic, imbecile, or incompetent
person, when indispensably necessary for the payment of debts or for the maintenance of such person and his family, and where the personal estate, with the rents and profits of the real estate, are not adequate for that purpose. (b)
(a) Persons of unsound mind, incompetent to take prudent care of themselves and property, are entitled to the protection and curation of courts of equity as much as technical idiots and lunatics. (Shaw vs. Dixon, 6 Bush, 644.)
2. A trustee holding funds for the benefit of an idiot is not ipso facto substituted by the appointment of a committee of such idiot. (Canaday vs. Hopkins, 7 Bush, 108.)
(b) Under article 1, chapter 48, of the Revised Statutes, circuit courts have ample power to entertain the suit of a committee of a person of unsound mind for the sale of his estate, which is indispensably necessary to pay his debts. (Salter vs. Salter, 6 Bush, 624.)
2. The restitution of a person adjudged to be of unsound mind to the control of his estate by a second inquest, in which his restoration was adjudged, did not divest the circuit court of jurisdiction of the proceedings instituted by the committee appointed under the first inquest to sell estate to pay debts. Having rightfully acquired jurisdiction, and being competent to afford relief, the chancellor was not divested of authority to do so, because the reason for taking jurisdiction did not continue to exist. (Ibid.)
3. The power and duty of the committee of an idiot, Power and duty lunatic, imbecile, or incompetent person, shall, in all respects, be the same as those of the guardian of an infant, except as to education. But the court may appoint a person other than the committee to take charge of the person of the idiot or lunatic when he is not confined in a lunatic asylum, and make the necessary orders for his support upon the committee.
§ 4. No judgment shall be binding on an idiot, lunatic, imbecile, or person incompetent having a committee, unless the committee be also brought before the court; nor shall any action be prosecuted in the name of such idiot, lunatic, imbecile, or person incompetent, without the assent of his committee, unless, for special cause, the court in which it is brought shall permit its prosecution at the instance of another as next friend. (a)
appointed to take
Another may be charge of the per
In suits commitbrought the court.
tee must be
1. If there be no committee, the court may proceed by When there is the appointment of a next friend.
natic in asylum.
2. If there be a committee, and the idiot or lunatic is When idiot or luconfined in an asylum, service of process on the committee alone shall be sufficient to bind the idiot or lunatic. (b)
§ 5. A committee shall not be appointed to an idiot, luna
Committee not to be appointed except upon judg
ment of court.
(a) D gave his note to B, and it was signed by him "as committee for W. Cromwell." The administrator of D resisted judgment against his estate, on the ground that those words showed that D did not intend to bind himself personally. The court decided that the words could not be held of themselves to show that D did not intend to bind himself personally. If the allegations of the answer, that D merely intended by the note to charge the estate of Cromwell, for whom he was committee, and not himself, and that the consideration of the note was a debt due from Cromwell to B, had been sustained by the proof, the defense would have been good. (Stites, F., Daniels' administrator vs. Berkley, MS. Opinion, June, 1859.)
2. The estates of lunatics, like infants and married women, are chargeable, as for necessaries, for whatever may be furnished them, which is reasonable, necessary, and beneficial to them. (Coleman, &c., vs. Frazer, 3 Bush, 300.)
3. For money advanced for necessaries, and to pay off an encumbrance on his real estate, for a person mentally incompetent to contract, the party making the advancements is entitled to a charge against his estate, and to be subrogated to the benefit of the encumbrance which he discharged. (Ibid.)
4. A judgment obtained, a person subsequently found to be of unsound mind may be revived by an action against the defendant and his committee. (McNees vs. Thompson, &c., 5 Bush, 686.)
5. Such a judgment cannot be satisfied by execution after the defendant is found to be of unsound mind. (Ibid.)
6. The levy of an execution having created an encumbrance on his estate, his committee had a right to pay the debt, and look to the estate for reimbursement. (Salter vs. Salter, 6 Bush,
7. The committee of a person of unsound mind, in good faith, enjoined the collection of an execution which had been levied on the estate of such person. The injunction was dissolved, and the sureties were compelled to pay the debt; they were entitled to be subrogated to the committee's right of priority in the distribution of the estate. (Ibid.)
(b) See amendment of January 24, 1873.