78 Miss. 269 | Miss. | 1900
delivered the opinion of the court.
Mrs. Jones seeks cancellation of a voluntary conveyance made by her husband, S. B. Jones, a few months before his death, to the appellee, Mrs. Somerville, a daughter of a former marriage, by which he gave her real estate in value equal to about two-thirds of his entire fortune. This conveyance, the bill charges, was executed secretly, without the wife’s knowledge, and held by the grantee, Mrs. Somerville, until a day or two after Mr. Jones died, when she filed it for record on the day of her father’s funeral. This conveyance reserves to Mr. Jones, the grantor, the ‘‘possession, income and profits” of the land until his death ; he to pay the taxes and keep the plantation in repair. On the same day of the execution of this instrument, as the bill charges, Mr. Jones made his will, in which he refers to the conveyance, provides that it shall not be regarded as an advancement to Mrs. Somerville, and then gives all his remaining property, one-third to her, one-third to a daughter of his marriage to complainant, and one-third to complainant, his widow; the one-third to complainant, however, to determine , at her death or marriage. Mrs. Jones renounces under the will. She charges that the conveyance was designed to be, and was, a fraud on her rights as wife. The bill was demurred to, the demurrer sustained, and Mrs. Jones appeals. Her contention is presented with signal ability, and has had our very careful consideration.
The question, sharply defined, is whether or not fraud on marital rights can be predicated of a voluntary conveyance by ether husband or wife, made with the purpose to prevent the other from inheriting. It is clear that fraud on a child could' not be predicated of such an act, though done with design to prevent its inheriting. Is the wife in any better situation ? In this state marital community property is unknown, dower and curtesy tenancies no longer exist, and absolute, independent and separate dominion over, and power of disposition of, property now pertain to each of the parties to the marriage. The
In 1848 the law as to realty gave the wife dower in what he died seized and possessed of, or had before conveyed without her relinquishment of dower. As to personalty, in case of the death of the husband intestate, it gave the widow a child’s part, or, if no children, one-half. Hutchinson’s code, p. 621. While that law prevailed, one Cameron executed a voluntary trust deed of his personal property to a trustee, to convey to two of his children at his death, but reserved in himself during his life the use, possession and control of the property, its proceeds and natural increase, and, if the children died before he did, the title to revest in him. On these facts, and on the attack of the wife, this court held the right to be in the husband to so dispose of his personalty, “and to thus cut off his widow from dower in such property, ’ ’ and that the widow had no such interest in the personalty as the husband could not destroy by such a deed, and that such a deed could not be regarded as a will, and could not be considered a fraud on her, notwithstanding the reservation of control in him during his life. Cameron v. Cameron, 10 Smed. & M., 394.
This case is conclusive of the case at bar. Its authority is in no way shaken by Jiggitts v. Jiggitts, 40 Miss., 718. The two cases perfectly consist. In the Jiggitts case, which concerned land, the then existing law gave the widow dower in lands, etc., “of which her husband died seized and possessed, or which he had before conveyed otherwise than in good faith and for a valuable consideration, and whereof said widow had not relinquished her right of dower, ’ ’ so that actual statutory property rights of the widow were under consideration, of
Under the law now there is no marital interest, actual or inchoate, until the death of the spouse, in the ownership of the-property, whether real or personal.
Affirmed.
