| Ky. Ct. App. | Nov 15, 1887
delivered the opinion ot the court.
The appellee, Charles Phillips, married Mary Moss in 1882. The former was at the time of marriage in the twenty-first year of his age, and the latter was not sixteen years of age. After their marriage, and while the one was under twenty-one years of age and the
The appellant, Mrs. Walden,' the mother of Mary Phillips, filed a petition and answer in said suit, in which she asked that Geo. W. White, as guardian, be directed to pay her the sum of eight hundred and twenty-five dollars for the board of Mary Phillips.
Mrs. Walden also filed a petition, as the next friend of Mary Phillips, against the appellee and his wife, Mary Phillips, and Geo. W. White, in which she alleged that Mary Phillips was under sixteen years of age at the time she married the appellee, and that she married the appellee without the consent of her statutory guardian or her mother, her father being dead. For these reasons, Mrs. Walden asked that a receiver be appointed to take charge of the money in the hands of Geo. W. White, as the guardian of Mary Phillips.
After judgment had been rendered in favor of the appellee and his wife, Mary Phillips, against Geo. W. White, as guardian, for the sum of two thousand eight hundred and fifty-nine dollars and eighty-two cents, the lower court, upon the facts set forth in the pleadings, appointed the appellee as the receiver of his wife’s estate, and directed him, as such.receiver, to collect from Geo. W. White the amount of money found to be due by him to his wife, and to pay an
The appellant, Mrs. Walden, as the mother of Mrs. Phillips and the grandmother of the child, and the •other appellants as the uncles and aunts of the child •on its mother’s side, claim this land under section 9, chapter 31, of the General Statutes, which reads as follows: “If an infant dies without issue, having title to real estate derived by gift, devise, or descent from one of his parents, the whole shall descend to that parent and his or her kindred, as hereinbefore directed, if there is any ; if none, then in like manner to the ■other parent and his or her kindred.”
It is the settled law of this State that title to real •estate derived by an infant by gift, devise or descent, from the maternal grandfather, descends to the father of the infant, if the infant dies without issue. (Duncan v. Lafferty, 6 J. J. M., 47; Smith v. Smith’s Executors, 2 Bush, 522.) These cases, and others that might .be referred to, but it is unnecessary, decide thiat the
But the appellant’s contention is that the appellee, by purchasing the land with money which came by his. wife, and having the title made to her for life, with remainder to. her children, waived his marital rights-to the money, and also waived any direct or ultimate interest in the land purchased with the money. Therefore, the remainder interest in the land was in fact a gift from Mrs. Philips to her children. The case of Walls, &c., v. Chandler, MS. Opinion, 1880, is relied on as sustaining this contention.
The facts of the case were, that the husband of Mrs. Walls purchased in her name a tract of land and took a bond for a deed to her and her heirs. The land was-paid for with the proceeds of a tract of land descended to Mrs. Walls from her father, and the price of a, slave which belonged to her. That part of the money which arose from the sale of her land was received by her husband and paid on the purchase money for the-land he purchased in her name. The note for the price of the slave was payable to Mrs. Walls, which note was assigned to the vendor of the land to complete the payment for the land. After the land was paid for, it was conveyed to Mrs. Walls’ husband for the use and benefit of herself and her three children. Two of her children having died after they were twenty-one years old and without issue, the question arose as to whether Mrs. Walls or her husband, who was.
The land and slave, the proceeds of which were used in the purchase of the land in controversy in that case, belonged absolutely to Mrs. Walls, and her husband by the marriage acquired no title thereto ; nor did he, by virtue of the marital relation, acquire any title to the land and slave as the administrator, survivor or distributee of his wife in case he survived her; but the same would descend to her children. Therefore, the husband having received the money arising from the sale of her land for the purpose of paying it, and actually paying it, on other land purchased for her, did not change its legal status; therefore, this court held that the interest of Mrs. Walls’ two children in the land thus purchased was a gift from her.
The case at bar is not like the case of Walls v. Chandler, supra.
It is well-settled by this court that, by the principles of the common law, marriage invests the husband with the legal title to all the personal property, including money, which the wife owns and is in the possession of at the time of marriage, or which may be reduced into possession at any time during coverture.
It . is also equally well-settled by this court that the
But, as is well-settled, the husband may waive absolutely his right to his wife’s choses in action, and consent that the legal title to them may remain in her, and in such .case, in the event of her dying first, he will not be entitled to them as her administrator, survivor or distributee; but they will descend to her next of kin. Therefore, if the appellee did not waive absolutely .his interest in the money, and consent that it might be hers-to the exclusion of his rights, by investing it in the land in controversy for her benefit during her life, with remainder to her children, then he did not deprive himself of the right of inheriting the land from his child, who died in infancy and without issue", for it will not be contended that if the appellee had reduced the money into his possession as his own, and then bought the land with it and caused the title to be made to his wife during her life, with remainder to her children, that he would not have inherited the title of his child dying in infancy and without issue. Here, however, the appellee did not reduce the money
As to the proposition that the appellee waived his common law rights by investing the money in the land, there are two negative answers: First, the fact that he invested the money in the land first for the benefit of his wife during her life, and second for the benefit of her children in remainder, negatives the idea that he intended to surrender to his wife his entire interest in the money, and shows that he intended out of his interest to give to her only what was equivalent to a life estate therein, and to give her children the remainder interest therein. Second, the áppellee alleged in his answer, and the allegation was not denied, that it was not the intention of himself or his wife to change or alter the course of descent by so investing the money.
For the reasons above indicated, we think that the appellee did not waive his common law right to the money, except to the extent of investing the same in the land as a gift to his wife during her life, and at her death as a gift in remainder to her children; and, therefore, he inherited the land from his infant child.
The judgment of the lower court is affirmed.