Wilkinson v. Wright , 45 Ky. 576 ( 1846 )

Judge Maesiiall

delivered the opinion of the Court.

As between these parties the title of the premises in question must be assumed to have been in Martha Forsythe, afterwards Ma.rtha Smith. Both parties claim under her, the lessors as her heirs,, the defendants as heirs of her .husband, Smith. By deed of trust made between herself and her intended husband,, and the trustee, her title is acknowledged and is conveyed in contemplation of the marriage, to the trustee, for her exclusive use, free from the control and the debts of the intended husband, to exempt it from which, is the professed and only object of the deed. And one question is, whether upon the dissolution of the marriagé by the death of the wife, or as the case may be stated, by the death of both parties, the •objects of the trust being fully accomplished, the legal title resulted, by-operation of law,-.to her heirs, -or remained with the trustee-for their use. This'question should, we think, be answered in-the affirmative ; White vs Simpson, (5 East, 170; ) Player vs. Nichols, (1 Barn. & Cress., 336;) Shelby vs Elder, (4 Barn. & Adolph. 582.) 'There is’nothing to show 'that the title was intended to remain in the trustee after the dissolution of the'marriage, ■and at any rate-after the death of the feme. But a contrary intention being fairly deducible from- the expressed •objects of the trust; the effect of the deed .should not be •extended further than the manifest objeet and intent of the parties will authorize. Its words admit but-do not require such extension.. •

In this -case the wife, during the coverture, had no power to. devise the estate, .none being reserved by the •deed of trust.

- Hemilt for plaintiff:- Pirtle -and Fry.tfy Page for defendants. ' '

■A second question is, whether the wife,-having made a will which devises.the premises to her husband, who survived her, and which was proved and ad.'milted to record an the County Court, this devise presents an.y-obstacle to ■a reco'very 'by her heirs. The deed of trust reserves no .power-of disposition to'the- wife; and as a feme crmer't has n©-¡power under our statute offiwills, to devise her lands, and can only make such devise in virtue of some power, conferred or reserved by deed, (Clancey on Rights, 282, et seq.; 6 J. J. Marshall, 573,) this will must be deemed-ineffectual as a devise of the land now in question. And as the effeet'of the'will in passing the •estate therein mentioned, w-as not and could not' be determined by the Court of Proba.te, (9 Dana, 494; 5 B. Monroe, 370; 2 Dana, 24,) the will; though recorded, ■constituted no obstacl'e-'to'.the recoveryby the-héirs, in -whom-the t,itlé vested on the-death'of'Mrs, Smith'. ■

Wherefore, the judgméñt is affirmed.