109 Ky. 455 | Ky. Ct. App. | 1900
Affirming.
In May, 1897, Thomas Mcllvain died testate, domiciled in Campbell county, Ky., . after having first made his last will, which was duly probated in the county court of Campbell county, in May, 1897. By the terms of said will all his property was devised to John B. Scheibley in trust to collect all rents, issues, and profits, and pay out of the net income a sum sufficient for the support of his widow, Catherine Mcllvain, so long as she remained unmarried, and the remainder to his daughter, Clara Edwards, and his son, Franklin P. Mcllvain, during their lives, and then to their' children. In May, 1897, the appellant renounced the provisions of said will, and in the same month and year instituted! this action against the appellees, seeking to recover her dower and distributable share as the widow of said decedent. It appears from the petition that the appellant and Thomas Mcllvain were married in Chattanooga,- Tenn., the 17th of December, 1895, where' they were then residing, and afterwards continued to live together as husband and wife in the county of Campbell, Kentucky, from shortly after the time- of their marriage until the death of said Thomas. The substance of the answer of appellees Edwards and Mcllvain is that the said plaintiff and Thomas Mcllvain were not residents of the State of Tennessee at the time of their alleged marriage, but their usual place of residence at that time and long prior thereto was in the State of Kentucky. It is further alleged that the plaintiff was a niece of decedent, being a daughter of a full sister of decedent; that, with the view of escaping the laws of the State of Kentucky prohibiting marriage between uncle and niece, the plaintiff and said decedent went to the'State of Tennessee for the sole purpose of en
After the issues were fully made up, and an agreement as to the evidence made and considered, the court adjudged that plaintiff take nothing by her petition, and dismissed the same, to which she excepted and prayed an appeal, v/hich was granted. Appellant also filed grounds, and moved for a new trial. The substance of the grounds relied on for a new trial is that the judgment is contrary to the law and evidence; that the court erred in construing and determining the effect of the decisions of the supreme court of Tennessee introduced by the defendants in support of their defense. The agreement as to the evidence is as follows- “It is hereby agreed that a marriage license was issued to the plaintiff and to Thomas Mellvain, deceased, in Hamilton county, Tennesseee, by an officer authorized by the laws of said State to issue such licenses in cases where .marriage might lawfully be contracted between the parties to it; that the plaintiff and said decedent went through a ceremony, the purpose of which was to make them husband and wife, and that said ceremony had
The several sections of the Code of Tennessee referred to in the agreement aforesaid are1 as follows: Sections 5646-5648, article 1, chapter 8; also section 3290, chapter 1, title 4. And they read as follows:
“Section ' 5646. No man shall marry or have carnal knowledge of his mother, his father’s sister, his mother’s sister, his sister, his daughter, the daughter of his brother or sister, the daughter of his son or daughter, his father’s wife, his wife’s daughter, the daughter of his wife’s son or daughter.,
“Sec. 564S. Whoever shall'commit any offense mentioned in the preceding sections, shall be deemed guilty of incest, and shall undergo confinement in the penitentiary for a period of not less than five nor more than twenty-one years.”
“Sec. 3290. Marriage can not be contracted with a lineal ancestor or descendant nor the lineal ancestor nor descendant of either parent, nor the child of a grandparent, nor the lineal descendant of husband or wife, as the case may be, nor the husband or' wife of a parent, or lineal descendant."’
The chief contention of appellant is that, although the marriage in question was prohibited by the laws of Tennessee, yet the same was not absolutely void, and, this being true, and the marriage not having been adjudged void during the life of the parties, that it must now be treated and held to be a valid marriage. This proposition is very ably argued by the appellant, and many authorities are cited to sustain the contention. It may be conceded that, if the marriage was not absolutely void at the time that the solemnization of the alleged marriage occurred, after the death of the parties it must be recognized and treated as a valid marriage, and the appellant regarded as the legal widow of decedent. Appellant cites Stevenson v. Gray, 17 B. Mon., 193, in support of her contention. In that case Gray had married the widow of his deceased uncle. He was then a citizen of Kentucky, but the mar
The contention of appellant that the executed agreement to live together as husband and wife vested the wife with marital rights is not tenable. Robinson v. Redd’s Adm’r (Ky.), 43 S. W., 435.
It is further contended for appellant that the appellees, having obtained ¡the probate of the will, and claiming under it, are estopped to deny the rights of appellant, who is by the said will recognized as the widow of decedent. We can not concur in this contention. The appellees are not seeking to nullify the will, but in fact, so far as this record appears, are consistently adhering to, and are ready •and willing to comply with all its requirements, and execute the same fully as therein provided. The attempt of appellant to renounce the provisions of the will, upon the idea that she was the legal widow of the decedent, is ineffectual for any purpose, and the will remains in full force and effect to the same extent as if such effort had not been made. Although appellant is not in law the widow of decedent, yet he had a right to devise to her such
We are inclined to the opinion that this court has a right to determine the true meaning of a statute of a sister State, when an official copy thereof is offered in evidence; but, even if this were not so, we think a fair construction of the agreement filed is to authorize the court to consider and construe the statute in question. Judgment affirmed.