92 Ky. 109 | Ky. Ct. App. | 1891
delivered the opinion of the court.
Nathaniel Craine, by a deed general in its terms, conveyed to his wife, Cynthia A. Craine, a tract of land.
After her death the husband executed a writing, by which he relinquished “ any and all interest in law or equity I have in and to the property, and to the control and disposition of the same, except the personalty, as though the same was deeded to her separate use, and as though the said Cynthia A. Craine had made said will in pursuance of written power from me.” This instrument was filed when her will was probated, the parties to this suit, and her husband, being parties to that proceeding.
It is urged first, that the deed created a separate estate in the wife as to the land, and she could therefore devise it. Second, if this be not so, that then the ratification of the will, even after her death, but before its probate, by her husband, by the execution of the relinquishment, rendered it valid as a devise by virtue of a power; and third, that the probate proceeding in the County Court estops the heirs from now questioning the validity of the devise.
The right of a married woman to make a will is purely statutory. Our statute provides : “ A married woman may, by will, dispose of any estate secured to her separate use by deed or devise, or in the exercise of a written power to make a will.” General Statutes, chapter 113, section 4.
No particular form of words is necessary to create a separate estate in a married woman. It Is only needful
It is said that cases may be found making a distinction between a deed, general in its terms, from a stranger to the wife, and one from the husband to her; but those cited by the distinguished counsel do not, in our opinion, support the claim.
The case of Huber v. Huber, 10 Ohio, 371, relates to a
In Turner v. Shaw, 96 Mo., 22, the conveyance, by its terms, created a separate estate; while in the cases of McWilliams v. Ramsay, 23 Ala., 813, and Steel v. Steel, 1 Ired. Eq., 452, the conveyance was to a trustee for the use of the wife.
If the husband executes a note to the wife, an intention to make it her separate estate may well be inferred; but where he merely conveys land to her by a deed, general in its terms, an intention upon his part to create' a separate estate in her can not be presumed from the mere fact that the conveyance is from the husband. It, like a deed from any other person, must show, in some way, an intention to create a separate estate, or else in the absence of a power to do so, she can not, under the statute, devise it. A conveyance from him stands upon the same footing, under the statute, as one from any other person to her.
It is unnecessary to consider whether a power in the wife to dispose of the land could have been created by the husband at any time before the execution of her will, or whether the conveyance had to confer it. Such a question is not presented. The writing was not executed by him until after her death. The rights of others had then intervened, and could not, of course, be destroyed by his act. He could not thus change the statute of descent, and divert property, the right to which had already vested in her heirs, from them to the devisees. It is said, however, that the probate of the will is a bar to this action; othérwise the anomaly will exist of a probate judgment holding the will valid, and one in this suit holding it invalid. The action of the County- Court, however,
The operation of the will was restricted to such estate as she, by law, had the power to devise; and the judgment of probate merely decided that thus far it was a valid will. This question was decided by this court in the case of Mitchell, &c., v. Holder, &c., 8 Bush, 362.
The lower court did not finally determine anything as to the rent of the lands, and there is, therefore, no question before us upon this subject.
Judgment affirmed.