Driskell v. Hanks , 57 Ky. 855 ( 1858 )

Judge Simpson

delivered the opinion of the court.

James J. Holeman died in August, 1850, and devised his estate to his two infant children, subject to the dower interest of their mother.

One of the children died shortly after the death of his father, an infant, and unmarried. By the law of descents then in force, his mother was excluded from inheriting any part of his real estate, inasmuch as it was derived by purchase from his father, and the whole of it, being one undivided half of the real estate devised, descended to his brother Lewis J. Hole-man.

The mother of these children afterwards intermarried with Henry Driskell, by whom she had two children, named James Henry and David Driskell. In the fall of 1852, some time between the month of August and the 1st of November of that year, Lewis J. Holeman, the other child of the testator, James J. Holeman, also died an infant and unmarried. At the time of his death, his mother had but one child by her last marriage, the other was subsequently born; and afterwards her last husband, Henry Driskell, died. She continued in the possession of the real estate of her first husband from the time of his death until the commencement of the present action.

The testator, James J. Holeman, had no father or mother living at the time of the death of his last child, Lewis J. Holeman. He had however, seven brothers and sisters, who claimed the real estate of said Lewis J. Holeman, as his uncles and aunts on his father’s side, six of whom sold and conveyed their interests therein to the plaintiff, Thomas H. Hanks, who brought this action against the mother of said Lewis J. Holeman and her two children by the last marriage, for a partition of the land, one tract of which was in Anderson, and another tract in Mercer county.

The defendants denied the right of the plaintiff- to any part of the land, and the widow insisted that it all belonged to her and her children, and that as they had been in the adverse possession of it when it was conveyed to the plaintiff, that the deeds under which he claimed it were chámpertous and void, and did not invest him with any title.

1. If réal estate be devised by the father to an infaht, who dies in infancy, leaving neither brother nor sister, the estate passes to the uncles and annts of the infant on the father’s side. But real estate which descended to such infant from a brother,does not pass to uncles and aunts,. but to the mother, brothers and sisters living at the death of such infant.

The circuit court decided that upon the death of Lewis J. Holeman, one half of his 'estate descended to his mother, and his half brother, James H. Driskell;and that the other half descended to his uncles and aunts on his father’s side, and rendered á judgment for a partition of the lands in both counties, according to that decision. The court also decided that the widow was liablé for the rents of all the land, except the mansion house and curtilage, from the time of the death of her son, Lewis J. Holeman, until the time of the trial, and rendered a judgment against her for five hundred dollars on that account.

From that judgment both parties have appealed. The plaintiff in the court below contends that all the real estate of the infant, L. J. Holeman, upon his death, passed to his uncles and aunts on his father’s side, and that no part of it descended to his mother and half brother. On the other side, it is contended that the widow was improperly charged with rents, she having a right under the law in force at the death of her first husband* to continue in the possession of the mansion house and plantation free of rent until dower was assigned her, which was never done.

On the part of the appellant, Hanks, the Uth section of the act of Descents, in the Revised Statutes, (page 280,) is relied upon as entitling the kindred oh the part of the father to the whole of the infant’s real estate. The infant’s real estate, at the time of his death, consisted of that which had been devised to him by his father, and that which he had inherited from his deceased brother. The section relied upon, only applies to the real estate belonging to the infant, the title to which he had derived by gift, devise, or descent from one of his parents. It has no application to that which he derived by descent from his brother, nor could it be made to apply to it by any reasonable construction of the language used. That which has descended to him from his brother, he certainly did not derive title to by gift, devise or descent from his father, but whatever title he had to it, was derived from his brother and not from his father. One half of his real estate therefore, being that half which was devised to him by his father, passed on his death, to his uncles and aunts on his father’s side. The other half, under the first section of the act, passed to. his mother and his half brother, who was living at the time of his death. On this point, therefore, the judgment of the court below was correct.

9. A widow who is left in possession of land belonging to the husband at his death, does not hold adversely to the heirs or devisees, unless it be openly and notoriously declared to beheld adversely to the title of those who have right. 3. A deed conveyingland does not pass a right to rents previously due for the use of the same, unless by express terms. 4. A widow, entitled to dower, is not accountable for rents until dower is assigned her. She has a right to enjoy the mansion house aud plantation where she is left on the death of the husband, free of any charges for rent until dower is assigned, or suit brought for that purpose.— The Kev. Stat. has no application to this case, as the death of the husband occurred. before they took effect.

On behalf of the defendants in the circuit court, it is contended first, that the deeds under which the plaintiff claimed the land in contest were void under the act against champerty. But as the widow was in possession under the same title, and had a right to an undivided interest in the land, her possession will be presumed to be consistent with her title, and amicable to the right of the other owners, unless an adverse holding of an open and notorious character be established by proof. There was no proof in this case of an adverse holding by her, and consequently the deeds under which the plaintiff claimed were not embraced by the champerty act.

In the next place, it is contended oa her part, that the plaintiff was not entitled to a judgment against her for the rents of the farm on which she resided, inasmuch as dower in her husband’s estate had never been assigned her. In relation to the plaintiff’s right to recover rents, it may be remarked, that the deeds under which he claims the land, do not transfer to him any right to the rents which had previously accrued, so that even if the defendant were liable for rents, he has not shown himself entitled to recover the amount adjudged him by the court below.

But there is in our opinion a still more fatal objection to the judgment against the widow for rents. Her husband died in 1850. As the law then was, she had a right to remain in the possession, of the mansion house and plantation on which it was situated, free of rent until dower was assigned her. This right she was not deprived of by the Revised Statutes,- for besides the express reservation of' all rights in the act by which they were adopted, we think, it is evident, by the provision therein contained, in relation to the right of the wife in the husband’s real estate, before dower is assigned her, that it was only intended to have effect in cases where the death of the husband occurred, after tlieuRevised Statutes took effect. The language of the provision is, (page 394,) that the wife shall be - entitled to one third of the rents and profits of her husband’s dowáble real estate from his death until dower is assigned. Now, it is evident that this provision cannot be made to apply to cases where the husband died before the statutes were adopted, without giving to it a retrospective operation, which is not permissible, inasmuch as it is expressly provided by the act in relation to the construction of statutes, that no part of the revision is to be retrospective, unless expressly so declared. (Revised, Statutes, page 190.)

5. In suits for the partition at land, it is proper that the suit be brought in the county where the testator or intestate died and administration was taken onder the Civil •Code, see. 97.

The widow, therefore, was not liable for any rent for the plantation on which she resided before this action was commenced. But as the plaintiff admitted her right to dower, and prayed to have it assigned to her, and she claimed the land as belonging to herself and her children, and denied the plaintiff’s right to any part of it, she ought to account for rents from that time until the plaintiff- obtains possession of his part of it. One third of which, rent, however, she will be entitled to as widow..

An objection has been made to the jurisdiction of the Anderson circuit court to make partition, of the land in Mercer county. As however, the testator, James J. Holeman, resided in Anderson, county at the time of his death, and'his Will was recorded in that county, and his children lived there at the time of their death, and their personal representative must have qualified there, if one has been appointed, we think that the Anderson circuit court had jurisdiction, under the 97th section of the Code, this being an actjon for the partition of real estate among the heirs of the infant Lewis J. Holeman, dec’d. It results therefore from these views, that the judgment of the court below is prejudicial to the widow, and that the plaintiff, Hanks, was not entitled to any more land than what he obtained by the decision of ¡the court.

Wherefore, the judgment on the appeal of Hanks is affirmed. On the appeal of Driskell it is reversed, ¡and cause remanded, with directions to ascertain the amount of rents for which the widow is responsible according to the principles of this opinion, and to render a judgment against her therefor.