Opinion of the court by
CHIEF JUSTICE GUFFY
Affirminc.
Tliomas Heyser and his wife, Fannie, were married’in Grayson county in the year 1874, and lived together as husband and wife in Leitchfield, Kv., from the date of their marriage until the date of her death, June 16, 1898. She died childless. She attempted to dispose of her estate, all of which was personal, by will dated February 21, 1896, which will was probated on June 27, 1S98. She made a few specific bequests, and devised the residue of her estate to her brothers, appellants herein,'and appellee J. C. Graham *84was appointed and qualified as executor of her will. Appellee Graham afterwards instituted an action in the Gray-son circuit court for the purpose of having the will in question construed, and his duties defined thereunder. Suit was instituted prior to the death of Thomas Heyser, and was revived against his executors; and they, within 12 months from the probating of the will, filhd in the county court a paper assuming to renounce, on his behalf, the provisions of the will in question. The brothers of the testatrix asserted their rights under the will, and denied the right of Thomas Heyser to any part of the estate of testatrix. After the issues were fully made up, and some proof taken, most of which was properly held to be incompetent, the court rendered the following opinion: “The court is of- the opinion in this ease that under chapter GO of the Kentucky Statutes, known as the ‘Husband and Wife Act,’ as amended March 15, 18.04, the wife can not dispose of hex* property by will so as to defeat the husband’s interest in her estate. Section 2132 of said act provides that ‘after the death of either the husband or wife, the survivor shall have an absolute ('state in one-half of the surplus personalty left by such decedent,’ while section 2147 of the same act provides that ‘a married woman may dispose of her estate by will subject to the provisions of this act.’ I conclude, therefore, that the husband, Thomas Heyser, at the time of his wife’s death, became invested with the ownership of one-half of the personal property she then owned, and this could not be and was not defeated by her will. Judgment should be rendered adjudging the heirs of Thomas neyser, deceased, to be the owners of one-half of his deceased wife’s personal properly.' The balance of her estate should be distributed so as to pay the special devises set out in the will, to wit, Harvey Gardner, §100; Fannie May Heyser, $100; *85Fannie Durbin, $100; Stella Kennedy, $200; Hattie Beale, tb.e watch and clothes of decedent ; and $200 to the Christian Church at Leitchfleld, Ky.; and the balance, if any, after the payment of the costs of this suit, will be equally 'divided between the three brothers of the decedent, viz., John O. Smoot, Hiram Smoot, and William Smoot, except the interest of Hiram Smoot will be paid into the Franklin circuit court, or to such person as said court may adjudge to be entitled thereto in the case of N. S. Bondurant v. Hiram Smoot, etc., pending in said court.” Thereupon the following judgment was rendered: “It is adjudged, therefore, that Thomas Heyser at the death of his wife, Fannie Heyser, became invested with the ownership of one-half of' the surplus personalty left by her, and this was not defeated by her will; and it is now adjudged that the heirs at law of Thomas Heyser are the owners of said one-half of his deceased wife’s personal property, to be distributed among them by the executors of his estate according to the provisions of his last will and testament. Out of the remaining one-half of said Fannie Heyser’s surplus personalty, if sufficient, the special legacies are ordered to be paid as follows: Harvey Gardner, one hundred dollars; Fannie May Heyser, one hundred dollars; Fannie Durbin, one hundred dollars; Stella Kennedy, two hundred dollars; and Leitchfleld Christian Church, two hundred dollars; and if said one-half is not sufficient to discharge said five legacies, which aggregate seven hundred dollars, then they are to be paid pro rata. It is adjudged that the watch and clothes of said decedent belong to Hattie Beale. ... If any surplus' should remain after the payment of said five legacies, the same is ordered to be distributed equally among the three brothers of decedent, viz., John O. Smoot, Hiram Smoot, and William Smoot; but the interest of Hiram *86Smoot is directed to be held by the plaintiff as executor of Fannie Heyser, subject to the direction of the Franklin circuit court in the case of N. S. Bondurant v. Hiram Smoot, etc., pending in said court. . . . Before any distribution is made of the estate of said-Fannie Heyser by her executor, all debts of said decedent are directed to be paid by him, and also the costs of administration, including his commission, and also the costs of this action, except the costs incurred by John O. Smoot, Hiram Smoot, William Smoot, and N. S. Bondurant. The legacies to Fannie May Heyser, Fannie Durbin, and Stella Kennedy are directed to be paid.to their statutory guardians, who are to be appointed and qualified in the county court of the county in. which said infants reside, in all respects as required by law, and who shall hold said funds subject to the conditions and requirements of the provisions of the will of said decedent.” From which judgment this appeal is prosecuted.
, It is contended foi appellants that under, the statute the testatrix had a perfect right to make the will and dispose of the property as therein set forth, and that the husband, if he had any remedy at all, which is not admitted, must renounce the provisions of the will within 12 months, and which it is claimed he did not do. It is also insisted that his executors could not make the renouncement for him after his death. It is further insisted for appellants that inasmuch as in the year 1S91 a judgment was rendered in the Grayson circuit court, authorizing the testatrix to dispose of all of her property by will, the same as if she were an unmarried woman, under that judgment, as well as rfader the act of 1894, she was authorized to dispose of her personal estate independent of the consent of her husband. We are not inclined to the opinion that the law authorizing the judgment referred to was intended to change the law *87in respect to the making of wills to the extent contended for by appellants.
It is contended further that by the terms of the: act of 1894 plenary power as to the disposition of the property in question was conferred upon the testatrix. It is the contention of appellee that, inasmuch as no devise was made to the husband in the will in question, he need not renounce the provisions of the will in order to authorize him to assert his interest in the property devised, and he cites Cummings’ Ex’r v. Daniel, 9 Dana, 361" court="Ky. Ct. App." date_filed="1840-05-12" href="https://app.midpage.ai/document/cummings--v-daniel-7380770?utm_source=webapp" opinion_id="7380770">9 Dana, 361, in support of his contention. The court in that case, after referring to a statute not materially different from the present statute in regard to the same subject, said: “It is very clear that the renunciation contemplated by the twenty-fourth section can have applicatioh only to cases in which some provision has been made for the wife by the will of her deceased husband. The declaration to be made by hen is that she will not take or accept the provisions made for her by the will.” It would seem that' the same principle announced in the case supra would apply to the husband, in regard to the will of his wife which contained no devise to him. It is provided in section 2132, Kentucky Statutes, speaking of husband and wife, that the survivor shall have an absolute estate in one-half of the surplus personalty left by such decedent. Section 2147, Kentucky Statutes, provides that “a married woman, if she be of sound mind and 21 years of age, may dispose of her estate, by last will and testament, subject to the provisions of this act.”
After a careful consideration of this case, we have reached the conclusion that the court below properly construed the law applicable to the case on trial. Judgment appealed from is therefore affirmed.