43 S.W.2d 514 | Ky. Ct. App. | 1931
Affirming.
The appellee, Katherine Weber, and her husband, W.H. Weber, separated on or about July 19, 1929, and, so far as this record shows, are still separated. They have never been divorced, but in their separation they adjusted their property rights between themselves. In so doing, the appellee's husband conveyed to her certain real estate, the deed containing this clause:
"This deed is made for the purpose of settling and adjusting the property rights between the grantor and grantee, who are husband and wife, and it is specifically understood and agreed that the grantor is now and forever hereafter waives any right and interest, in the way of a dower interest or any other interest whatsoever in said real estate, and the grantor further agrees that he will join with the grantee at any time the grantee sees fit to sell the property and execute a good and sufficient deed for that purpose, and it is further agreed between the said parties that the grantee accepts this real estate and waives any further right or interest in the way of dower or alimony in the grantor's property."
Later the appellee, without her husband joining in the contract, entered into an agreement with the appellant to exchange the property thus conveyed to her by her husband for some property owned by the appellants. The appellee declining to go through with this agreement, this suit was brought for a specific performance of *98 the contract. The appellee defended upon several grounds, the main one being that at the time of the execution of the contract sued upon she was a married woman and that her husband had not joined in said contract, and it was therefore void and unenforceable. The lower court having found for appellee, the appellants prosecute this appeal from that judgment.
To reverse the judgment the appellants argue, first, that since the passage in 1894 of the Weissinger Act (Acts 1894, c. 76), part of which is embraced in sections 2127 and 2128 of the Kentucky Statutes, there may yet be created in a married woman an equitable separate estate, uncontrolled by that act; that such estates were sanctioned prior to the enactment of this act, and that it did not abolish the law of separate estates as previously recognized and enforced in Kentucky. To sustain this major premise, the appellants cite the case of Lee v. Belknap,
"The act of 1894 was intended to enlarge, and not to abridge, the rights of married women. It was intended to confer upon them privileges and powers they did not previously enjoy. The chief purpose of it was to give to married women the right to own and hold and control their property free from the dominion of their husbands; but it was not intended to abolish the law of separate estates as previously recognized and enforced in this state or to prevent the creation of estates by will or deed enlarging the rights of married women in respect to the control and disposition of their property.
"In other words, the act of 1894, was only intended to affect the rights of married women in property which they owned uncontrolled by the limitations of a will or deed. . . . And it was well-settled law before the act of 1894 that a married woman had the same control over her separate estate as if she were a single woman. [Citing cases.] And this law has not been changed by the act of 1894.
". . . Our opinion therefore is that since the act of 1894 a married woman may, by will dispose of any estate secured to her separate use by deed or devise to the exclusion of her husband. But she cannot by will exclude her husband from participation *99 in her estate that was not secured to her separate use by deed or devise.
In other words, if the wife receives or acquires property in any way or from any source, unhampered by the provisions of a deed, will, or other instrument, her rights in such property are controlled and determined by the act of 1894; but, if the wife receives or acquires property under a will or deed that confers upon her greater privileges than the act of 1894, then these privileges may be exercised to the same extent they could have been exercised before the act of 1894."
We may, at least for the purpose of this case, admit the major premise of appellants. Passing this, they next argue that under the case of Bates v. Harris,
The judgment is affirmed.
Whole court is sitting. *101