43 Ky. 235 | Ky. Ct. App. | 1843
delivered the opinion of the Court. — Judge Beech did not sit in this case.
Upon the petition of a part of the heirs of William Hume, deceased, and Joseph Kennedy, who claimed by purchase from her husband, the interest of Nancy Thomas, one of the heirs of the deceased, the Circuit Court of Madison decreed that two slaves which had been, allotted to the widow as dower, who had died, should be sold for the purpose of a division, and appointed Simeon Hume a Commissioner to sell. Upon the coming in of the report showing the sale, Nancy Thomas claimed that share of the proceeds which was claimed by Kennedy, as a purchaser from her deceased husband. Kennedy moved for a rule against the Commissioner to pay the amount to him, and Mrs. Thomas resisting the payment and claiming that the same should be settled on her; with a view1 to a speedy adjustment of the matter, Mrs. Thomas, by consent of all parties, was made a defendant in the case, and as such was, by like consent, to have the same opportunity, and with the like effect, to resist the motion of Kennedy and the execution of the decree aforesaid, and with all the rights that she could have or obtain by any other proceedings in the case, and thereupon the following facts were agreed: “that the said Nancy Thomas was the daughter of William Hume, deceased, who died in
It appears from the facts agreed, that though Nancy Thomas had an undivided reversionary interest or interest in remainder in the slaves, which accrued to her when sole, and never came to the possession of her husband, in his lifetime, nor could be reduced to possession. That this interest would have survived to the wife had it not been sold and transferred for a valuable consideration, is abundantly established by the authorities.
But it has been long a vexed question, whether the husband may or may not defeat the wife’s right of survivorship by an assignment of her interest for a valuable consideration, as he may defeat her right of survivorship by an assignment of her chose in action. Able authorities are arrayed on both sides of-this question, and it is regarded at this day as not fully settled: 1 Roper on Properly, from 234 to 251, and the authorities referred to; Clancy on Rights, from 140 to 150, and the authorities referred to; 2 Story's Equity, from 631 to 641, and the authorities cited; 2 Kent’s Commentaries, from 136 to 143, and the authorities cited. Roper advocates .the power of the husband to defeat, by assignment, the right of survivorship of the wife, and Clancy, with eminent ability, controverts his right. And our conclusion upon
As the wife’s interest in the proceeds of the sale of the slaves falls short of acompetentprovision for her, the whole amount should have been decreed to her. The order of the Circuit Court, directing the appellant’s interest in the-proceeds of the sale to be paid to Joseph Kennedy, the assignee of her husband, is therefore, reversed, and cause remanded, that a decree may be rendered directing the payment of the amount to be made, to Nancy Thomas, the appellant, and she is entitled to her costs in this. Court.