| Ky. Ct. App. | Jan 10, 1922
Opinion of the Court by
Reversing.
James Anderson, owned a 50 acre tract of land in Pike county. On his death, in 1891, intestate and without issue, the- title passed to his mother, Sallie Anderson, subject to the homestead or dower rig’hts of his widow, Betty Kelley, who subsequently married Billy Kelley, -and after occupying the land for several years, moved with him to the -state of Virginia. In the year 1897, Betty Kelley and husband conveyed four acres of the land to Alex Moore, who immediately moved upon the land, erected improvements thereon and continued to occupy it until the year 1915, when he sold and conveyed to George W. Moore, who has -occupied the premises ever since. About the same time Betty Kelley and husband conveyed about forty acres of the land to Sam Mullins, who also erected certain improvements and has continued to occupy the land since the date of his purchase.
Sallie Anderson, the mother of James Anderson, died in the year 1907, leaving eight children.
Alleging that she had purchased the interests of five of the- children of Sallie Andersen, Huida Sanders, one of the children, brought suit against Betty Kelley and the -other two children of Sallie Anderson for a partition of
The argument in support of the judgment is as follows : The conveyance of a homestead works an abandonment, and in order to give effect to the deeds which Betty Kelley executed to Alex Moore and Sam Mullins, she will be held to have elected to take dower, and that being true, and Betty Kelley still being alive, the possession of the purchasers was never adverse to the remaindermen. It is true that we held in Phillips v. Williams, 130 Ky. 773" court="Ky. Ct. App." date_filed="1908-12-04" href="https://app.midpage.ai/document/phillips-v-williams-7136965?utm_source=webapp" opinion_id="7136965">130 Ky. 773, 113 S. W. 908, that a conveyance by the widow to a stranger would be regarded as an election to take dower as against the purchaser, but that case was expressly overruled in Consolidation Coal Co. v. Grayson, 186 Ky. 314" court="Ky. Ct. App." date_filed="1919-12-19" href="https://app.midpage.ai/document/consolidation-coal-co-v-grayson-7145810?utm_source=webapp" opinion_id="7145810">186 Ky. 314, 216 S. W. 848, where we held that a widow’s dower before assignment could only be assigned, conveyed or released by way of extinguishment to the owner of the fee, or to a party in possession, or in privity of the estate from which it accrues, and not to a stranger. It follows that the deeds from Mrs. Kelley to Moore and Mullins were no more effectual to convey her dower than they were to convey her homestead, and that being true, there is no basis for the ruling that she must be held to have elected to take dower in order to give effect to the deeds. In the recent case of Campbell v. Whisman, 183 Ky. 256" court="Ky. Ct. App." date_filed="1919-02-14" href="https://app.midpage.ai/document/campbell-v-whisman-7145330?utm_source=webapp" opinion_id="7145330">183 Ky. 256, 209 S. W. 27, we held that where no election by the widow between homestead and dower was shown, it will be conclusively presumed, after the lapse of a reasonable time, that she elected to take homestead where that estate was the more beneficial. Here the widow resided on the land for a number of years without having dower assigned. The land was worth less than $1,000.00. Therefore, the homestead, which carried with it the right to occupy the entire tract, was more beneficial than her dower right, which was only a life estate in one-third
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.