100 S.W.2d 824 | Ky. Ct. App. | 1937
Affirming.
I.S. Bodkin, a resident of Carlisle County, died without issue in 1931. In this action by his heirs to sell a 200-acre tract of land conveyed to him by his father and mother, his widow, Ora Bodkin, asserted dower. Her claim was denied, and she appeals.
The material portion of the deed reads as follows: "Know all men by these presents that We, D. Bodkin, Sr. and wife Eliza Bodkin, for the consideration of the love and affection which we have and bear for our son, I.S. Bodkin, and as an advancement to him, and which is valued at Fifteen Dollars per acre we do hereby convey in trust for the use of our said son to I.T. Bodkin, Byron Bodkin and Asa Bodkin the following described land * * * [here follows description], which is hereby conveyed to said Trustee I.T. Bodkin, Byron Bodkin and Asa Bodkin in trust for our said son, I.S. Bodkin by this our Deed of General Warranty, which is to be held in trust and for the benefit of our said son during his life and then to his lawful heirs. The said Trustees to give the annual issue and profits of said land to said I.S. Bodkin during his life with no power to said I.S. Bodkin over the same or to sell or dispose of the same."
The case turns on the character of the husband's estate. It is essential to the widow's right of dower that the estate be one of inheritance, either legal or equitable. Northcut v. Whipp, 12 B. Mon. 65. Our statute provides for dower where the husband is seized "of an estate in fee simple during the coverture." Section 2132, Kentucky Statutes. Even a defeasible fee limited over on death without issue is an estate of inheritance, *800
and the widow has dower although the estate expires by death without issue. Landers v. Landers,
But it is insisted that the will in question is similar to the will involved in Jacob v. Jacob, 4 Bush, 110, where the widow's right to dower was upheld. A reading of that opinion will disclose that the court, after examining several provisions of the will, came to the conclusion that the widow was entitled to a dower interest as legatee by implication. Whether the decision be sound or not, we need not determine. It is sufficient to say that the will contained provisions not present in *801 the will in question, and to add that, to the extent that that opinion holds or intimates that there may be dower in a life estate, it is disapproved.
Judgment affirmed.