Redmond's Admx. v. Redmond

Opinion op the court by JUDGE HOBSON — Reversing. Appellant, Margaret Redmond, and James Redmond were married about the year 1870. They had each been married before, and had had children by the former marriage. They did not live happily together, and after a few years separated, but were never divorced. James Redmond died in the year 1895, Margaret Redmond qualified as administratrix of his estate, and brought this suit n|s administratrix and. as widow for the settlement of the estate and for judgment in her favor for her interest therein. James Redmond, left no personal estate, except a certificate in a society to which he belonged, by which $40 was appropriated to pay the burial expenses of a member. Before the suit was brought to settle the estate, the children of James Redmond had paid off all the debts except $40 of the burial expenses, which was left to be paid by the $40 from the society. The administratrix collected the $40, and claimed it as part of her distributive share. As, by the rules of the society, the $40 was to be applied to the payment of the burial expenses, the court properly held that the fund should be paid on this bill, and, as this left no personal estate to be administered or debts to be paid, he properly dismissed the action for a settlement of the accounts of the administratrix. [765] The rights of the widow present a more difficult question. James Redmond owned lat his death a house and lot, where he had resided, with his children, for many years. In the year 1885 he bought at public sale another piece of property for $2,200, now worth about $3,000. He paid for this property himself, except the last payment of $450, which was paid by his son Mike Redmond; at least Mike Redmond gave the check. When James Redmond bought the property, he was separated from his wife, and did not desire her to have dower or any interest in it. He had it conveyed to Mike Redmond; but he always controlled it, collected the rents, and treated it as his own. Mike Redmond was then working at a salary of $6 or $8 a week, and seems to have had no other resources. About the year 1894, Mike Redmond was preparing to get married, and he then conveyed the property to James Redmond for life, with power to sell or convey at pleasure, and with remainder at his death to all his children. This deed was made because James Redmond preferred to risk his wife’s dower in the property, rather than, as he expressed it, that his daughter-in-law might get it all. Without regard to the effect of the second deed conveying a life estate with power of disposition, we are satisfied from all the circumstances that the property was originally bought by James Redmond, that the deed was made to Mike Redmond in fraud of the wife’s rights, and that Mike Redmond always held the title for his father. By section 2132, Kentucky Statutes, “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 seized of an estate in fee simple during the coverture.” Under this statute the wife is entitled to dower in the land held by Mike Red•mond for the use of his father. At common law, convey [766] anees in fraud of the fights of the wife were held void. This principle has often' been recognized by this court. Murray v. Murray, 90 Ky., 1, (11 R., 816) 13 S. W., 244, 8 L. R. A., 95; Manikee’s Adm’x v. Beard, 85 Ky., 20 (8 R., 736), 2 S. W. 545; Petty v. Petty, 4 B. Mon., 216, 39 Am. Dec., 501; McAfee v. Ferguson, 9 B. Mon., 475. The same rule is followed mother States. Feigley v. Feigley, 61 Am. Dec., 375; Walker v. Walker (N. H.) 31 Atl., 14, 27 L. R. A., 799, 49 Am. St. Rep., 616; Flowers v. Flowers (Ga.) 15 S. E., 834, 18 L. R. A., 75; Bump, Fraud. Conv. 2d Ed.), 491. Section 1906, Kentucky Statute's, is as follows: “Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to delay, hinder or defraud creditors, purchasers, or other persons, and every bond, or other evidence of debt given, action commenced, judgment suffered, with like intent, shall be void, as against such • creditors, purchasers and other persons. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.” The court below seems to have followed the case of Phelps v. Phelps, 143 N. Y., 197, (38 N. E., 280, 25 L. R. A., 625); but the statute of New York under which that case was decided is not similar to ours, nor is the decision in keeping with the rule heretofore maintained in this State. The wife also claims that she is entitled to a homestead in the property on which her husband made his home. The fact that she wás separated from her husband would not, under the statute, affect her right to homestead. Meader v. Place, 43 N. H., 307; Folsom v. Folsom (N. H.), 34 Atl., 743; Duffy v. Harris (Ark.), 45 S. W., 545, 40 L. R. A., 750; [767] Atkinson v. Atkinson, 77 Am. Dec., 712. Section 1707, Kentucky Statutes, continues ithe homestead for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband are entitled to a joint occupancy with her until the youngest unmarried child arrives at age. The fact that the wife was not living' with Her husband at his death can not, by construction, be made an exception to the statute where it provides none. But the widow is not entitled to both homestead and dower. If she takes homestead, she can not have dower also; but, if she does not take homestead, she can ithen be endowed in all the real estate. Sansberry v. Simms’ Adm’x., 79 Ky., 527 (3 R., 303); Freeman v. Mills, 22 R., 859, 59 S. W., 3. On the return of the case the widow must) elect whether she will take dower or homestead. Judgment reversed, and cause remanded for further proceedings consistent with this opinion. Whole court sitting.