Phillips v. Farley

Opinion of the court by JUDGE DURELLE Affirming. This record presents a controversy between the surviving husband of Susan Farley Phillips on one side and her- relatives on the other. The appellant and his wife intermarried in December, 1892. In January, 1893, the land in controversy was conveyed to her in fee simple. On March 15, 1894, .the act relating to husband and wife, known as the “Weissinger Act” (section 2127, Kentucky Statutes), was [839] enacted, and took effect in June, 1894. In January, 1895, Susan Farley Phillips died, leaving an infant child, Bettie Phillips, who died in June, 1895, about six months old. The trial court adjudged that the Weissinger act applied to the surviving husband’s rights in the land, and that he took dower therein, and was not entitled to an estate by the curtesy. The appellant has appealed, contending' that as section 1, art. 4, c. 52, General Statutes, was in force at the time the marriage took place and when the land was conveyed to the wife, the husband was entitled to an estate for life in the entire tract as tenant by the curtesy. In the case of Rose v. Rose (104 Ky., 48) (20 R., 417) (46 S. W., 524, 41 L. R. A., 353), it was held that the right of the husband given by section 1, art. 2, c. '52, General Statutes, to the use of his wife’s land, and to rent it for three years at a time, and receive the rents therefrom, a,s a statutory substitute for the ancient tenancy by the marital right, became a vested right in the husband as to lands owned bj’ the wife, of which he could not be constitutionally deprived by tike subsequent passage of the act of 1894. In the subsequent case of Mitchell v. Yiolett, 104 Ky., 77 (20 R., 378) (47 S. W., 195), it was held that where the marriage took place, the land was acquired by the wife, and a child was born alive of the marriage before the act of 1894 took effect, the surviving husband had a vested estate for life in the whole of the land owned by the wife. The writer of this opinion did not concur in the doctrines - announced in the Rose and Auolett cases. But, accepting those cases as the law of this Commonwealth, it follows that the case at bar must be decided in accordance with the doctrine there laid down. On behalf of the appellees it is claimed that while the statutory right to use and lease the wife’s land was vested [840] in the one case upon the marriage, and the estate by- the curtesy in the other casé became vested upon the birth of a living child before the new act went into effect, in the case at bar the child was not born alive until six months after the act took effect, and until that time the husband’s right was inchoate, subject to legislative control, and not protected by the Constitution. In support of this contention, Cooley, Const. Lim. (l8th Ed.) pp. 440, 441, and 2 Bish. Mar. Worn., section 43, cited in the. Yiolett case, supra, are relied on by appellees as authority for the proposition that it is not until the birth of a child capable of inheriting that “the estate by the mere marital right is extended in duration to become an estate, not for the mere joint lives of himself and wife, but for his own life,” and that until the husband’s estate is thus enlarged into tenancy by the curtesy initiative he had no vested right to an estate for life. The reasoning of the authorities cited seems to support counsel’s contenten. And in the Yiolett case, supra, the doctrine there laid down as to the vested interest of the husband was expressly limited, the 'court, through Judge Paynter, saying: “Where the interest of the husband in the estate of his wife remains in expectancy merely — that is to say, until it becomes initiate — -the Legislature must have full right to modify or even to abolish it. Cooley, Const. Lim. (5th Ed.) p. 442.” In the case at bar the- husband’s estate of curtesy was in expectancy merely. It could not be initiate until the birth of a living child capable of inheriting. The child was not born until some-months after the statute took effect. This is .conclusive of the case at bar, and the judgment is affirmed. Whole court sitting. Chief Justice G-uffy dissents.