Morgan v. Conn

66 Ky. 58 | Ky. Ct. App. | 1867

JUDGE WILLIAMS

delivered the opinion op the court:

The decedent, G: W. Conn, having sold to appellants one hundred acres off his four hundred-acre tract of land, the sole question is, whether dower should be assigned the appellee, his surviving widow, entirely out of the three hundred acres remaining unsold, or whether a pro rata dower should be assigned her out of the one hundred acres sold by title bond.

As she can be fully endowed out of the remaining three hundred acres of the original four hundred acres, and, by so assigning her dower, a multiplicity of suits be avoided, there is no reason perceived why this should not be done.

Had none of the original four hundred acres been sold, her dower of the whole might have been assigned just as it may now be done; at least there is nothing in the record to show that injustice would be done her; but we infer that to assign her dower in one body, instead of two, would be to her interest, and will protect both the purchasers and heirs, as it will avoid the trouble and expense of another suit between them.

This principle of assigning dower in an entire tract of land from that part unsold, where the husband, by sale, shall have severed it, was fully recognized and adjudged by this court in Lawson vs. Moore, 6 Dana, 471.

Dower in the one hundred acres sold by decedent to appellants having been assigned to appellee without any legal reason, the judgment is reversed, with directions to assign her entire dower in the original tract from the three hundred acres unsold and still owned by decedent at the time of his death.