47 Ky. 202 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
The last will and testament of John Arnold, deceased, contains the following clauses:
“It is my will and desire, after my death, and that of my. wife, that my son, William W. Arnold, who has been living with me for some years, and who has been laboring faithfully, to assist me during that period, should have the plantation upon which I now reside, containing about three hundred acres of land, be the same more or less.
“It is my desire also, that my son should remain with me during my life, and during the life of his mother, (should she survive me,) for the purpose of taking care of both, as long as we live, and superintending the farm and all my business, in consideration of which, he is to have one third of all that is made upon the place, after supporting the family, until the death of myself and
After the death of the testator, William W. Arnold married. He died without children, and his wife and his mother are still living. Two questions are made ■upon the will,: First; Having died before his mother, did he acquire any interest in the land? Secondly; Is his widow entitled to dower ?
It is contended his right was conditional, depending on the performance of the prescribed service, in taking care of his father and mother during their lives; and having died before his mother, he acquired no interest in the land under the will. There is no foundation for this assumption, nor is it authorized by any thing contained in the will. The land was not devised to him as a compensation for this service. It was devised to him absolutely and unconditionally, after the death of his mother. For these services he had a right to one third of the profits made upon the plantation, after defraying the expenses of the family. This right ceased of course, upon his death; but upon the death of the testator he took a vested interest in the land, not depending for its duration, upon any contingency, and subject only to the life estate of his mother.
The other question is one of more difficulty. • Its solution depends upon the extent of his mother’s life estate. The use of the plantation is expressly devised tó.
Our construction then of the will is, that the mother of William W. Arnold takes under it, a life estate, subject alone to the right of her son during his life, to manage it for her, and receive one- third of the profits as a compensation; and that he took an estate in fee in remainder, after the termination of his mother’s life estate. Consequently, not being seized or lawfully possessed in his own right during coverture, his wife has no right to be endowed of one third, or of any other part of this ■ land.
The case of Robinson vs Miller, (2 B. Monroe, 284,) is relied upon as authorizing the claim of dower in this
It appears that, the father-in-law of William W. Arnold, after the marriage with his daughter, made several advancements to his son-in-law in money, taking, however, on each occasion, his promissory notes for the amount advanced. In his last illness he executed one note embracing the whole amount of the sums previously advanced, and a mortgage to secure its payment. This debt has been transferred by the father to a trustee for the benefit of his daughter, the widovi of W. W. Arnold.
It is now contended the transaction is fraudulent as to creditors, and should be so regarded. We perceive no indications of fraud, nor any reason why it-should .not
As by the will of John Arnold, the furniture in the^ouse> an^ sl°c^ and personal property on the' farm, were bequeathed to his wife during her life, so far as W-Arnold may have disposed of the same, and converted it to his own use, beyond his interest under the will, it creates a debt against his estate in favor of his , . ° . mother, and is not a debt against him as the executor oi ^jg father. The Court below was, therefore, right in decreeing, that so far as he received any part of his father’s estate, and held it as one of the executors, it was a preferred debt against his estate, but so far as he-disposed of the estate devised to his mother for life, it 'did not create a debt which was entitled to any preference.
The other questions which have been made, cannot be considered ander the decree rendered. That decree merely directs the commissioner to ascertain and- report certain facts, but decides nothing in relation to-the matters upon which these questions arise, and consequently, the Court has the power, when the commissioner reports,, to make such decree as may seem equitable. It would, therefore, be premature for this Court to pass upon these questions at this time.- We would suggest, however, that Thomson Arnold, according to the provisions of his father’s will, is not bound to make an election untilafter the death of his mother, whether or not he will retain at its value, the land now in his possession.
The Court below having decided that the widow of Wm. W. Arnold was entitled to dower in the tract of land devised to his mother during her life, the decree is reversed and cause remanded for decree and further proceedings in conformity with this opinion.