91 Ky. 70 | Ky. Ct. App. | 1890
delivered the opinion oe the court.
Belle W. Kent died childless and intestate. She owned five thousand dollars of bank stock. It was her separate estate. The husband, W. P. Kent, became her administrator, and after demand and refusal of payment he brought this action to recover a dividend that had been declared upon the stock. Her heirs-at-law made themselves parties to the suit, and disputed his claim to it. This dispute involves the right to the stock as between the husband and the lieirs-at-law of the deceased wife. The charter of the bank makes its stock personalty.
Section 15, article 4, chapter 52, of the General Statutes, provides: “If any stock in any of the banks or other corporations of this State is taken or transferred to any female, and it is expressed on the face of the certificate or transfer-book of such stock that it is .for the use of such female, no husband of hers shall take
££§ 1. That it shall be lawful for any person who may desire to make an annual provision for a resident female friend, relative or connection, in such manner that the provision will be for the exclxxsive use of the female, and xxot transferable, nor liable to vest in the husband, nor be sxxbject to his debts, to transfer, or cause to be transferred, to such female, stock in any of the banks or other corporations created by this Commonwealth, and have it expressed on the face of the certificate of stock, and on the transfer-book of the bank or corporation that such stock is for the exclusive use of such female, and as annual provision for her support. And no such stock shall be transferable during the life of the female, nor liable to the debts contracted by her, nor shall it vest in her husband, nor be liable to his debts, nor shall he be entitled to it as her administrator, but it shall pass to the same persons who would take her real estate as heirs-at-law: Provided, That if she be a feme sole, she may dispose of it by last will and testament, and if a feme covert, may devise it with the consent of her husband.
££§ 2. That the dividends, from time to time, as declared, shall be paid over to the female, and shall*76 not be paid on any power of attorney executed, before tlie same is declared, nor in which, there is not express authority to draw the same; and the receipt of the female, whether married or sole, shall be an acquittance for the dividend; and she shall also, whether married or sole, have authority to execute a power of attorney to draw the same; and feme coverts shall have the right to take such stock without the consent of their husbands.” *
This law remained in force until the adoption of our Revised Statutes in 1852, chapter 47, article 4, and section 16 of which reads thus:
“If any stock in any of the banks or other corporations of this State is taken for or transferred to any female, and it is expressed on the face of the certificate or transfer-book of such stock that it is for the exclusive use of such female for her annual support, no husband she then has, or may thereafter have, shall take any interest in such stock or the dividends thereon; and the same, at her death, shall pass to her heirs; but if unmarried, she may dispose of it by will, or, if married, so dispose of it with the consent of her husband, or without such consent if so provided in the deed or will creating the trust. She may also receive the dividends, and give acquittances therefor, though married; but she shall not in any way anticipate the same; nor shall any dividend be paid upon an order or power given by her before the same is declared.”
This provision continued in force until the adoption of our present statute in 1873, which, so far as it bears upon the question now under consideration, is
Undoubtedly, under this statute no right upon the part of the husband sprang up, Phoenix-like, at the death of the wife, investing him either as her administrator or as survivor with title to the property. The language was condensed in the revision of the statute in 1852, and made to read: ‘£ And the same at her death shall pass to her heirs” while in the present statute it is: “And at her death it shall pass to her heirs.”
In our opinion there is no material difference between these provisions, nor was any intended. The history of the legislation, as well as the language of the present law, show that the Legislature intended to keep in force the law of 1838, and to change the equitable rule as to separate estate in this species of property, so that the husband would not take it upon the death of the wife. The statute uses the term “heirs.” Technically this means those upon whom the law casts the inheritance, and while the statute may make those heirs who otherwise would not be so, because the law-making power regulates the descent of property, yet the husband as to the wife’s property is a distributee, and, generally speaking, not an heir; and the previous legislation defining “heirs” as those “who would take her real estate” shows that it was not intended to embrace him by the use
The cases of Payne v. Payne, 11 B. M., 138; Allen v. Everett, 12 B. M., 375, and Brown v. Alden, supra, where it was held that the husband, either as administrator or survivor, was entitled to the separate personal estate of the wife upon her death, were determined upon the equitable rule to which we have referred, and not upon any special statute applicable to a particular character of property, save in the last named case, where a slave, some furniture, notes and money were involved, it was held that by virtue of a special existing statute the husband- had only an estate for life in the slave, whereas, before the pas
Even if the husband as administrator could recover a dividend declared during the life of the wife upon this stock, yet he must aver in his petition that it was so declared. This he has not done. It does not appear in any way when the dividend sued for was declared. Certainly dividends declared since her death, being but incidents of the stock, pass with it to the heir.
The pleading is to be most strongly construed against the pleader, and in the absence of an averment that the dividend was declared during the life of the wife, we must presume it was declared after her death.
Judgment affirmed.