32 Ky.L.Rptr. 1196
Court of Appeals of Kentucky.
March 5, 1908.
ACTION: Affirmed.

Appeal from Circuit Court, Clay County.
"Not to be officially reported."
Action by America Morgan against Nathan Sparks. From a judgment for defendant, plaintiff appeals.

Appellant, America Morgan, instituted this action to recover dower in a tract of about 220 acres of land which her husband, M. V. Morgan, had conveyed to appellee, Nathan Sparks, by deed in which appellant did not unite. Appellee defended upon two grounds: First, that appellant and her husband entered into an agreement by the terms of which she had released her dower and other rights to her husband's estate; second, that when appellee was thinking of purchasing the land in question he consulted appellant in regard to it, and she stated that she and her husband had settled all claims which she had to his estate, and that she made no claim to the land. The judgment below was in favor of appellee.

It appears that prior to the time of the conveyance to appellee by appellant's husband, M. V. Morgan, appellant had sued her husband for alimony and asked $400 per year for maintenance, and upon final hearing judgment for $5,000. In this suit she obtained an attachment against all of her husband's property. Thereafter an agreement was entered into between appellant and her husband, by which the latter conveyed to her one farm, almost equal in value to another owned by him, and a life interest in another tract. These two tracts constituted about one-half of her husband's property. The instrument, which was signed and acknowledged both by M. V. Morgan and appellant, concludes as follows: "And now, in consideration of the above grants by M. V. Morgan to America Morgan, the said America Morgan hereby releases all claims to alimony and future support from said M. V. Morgan and his property." It is the contention of appellant that her suit was merely one for alimony and support, and that she intended by said contract to release only her claim for future support; that it was not her purpose to release her dower rights in her husband's property, nor was the property conveyed to her in lieu of her dower rights. The rule in regard to jointures is thus stated: "The term 'jointure,' as above used, means such an estate as may be conveyed or devised to the wife in lieu of dower. It must be in satisfaction of it; and, if transferred to her without any intention or purpose that it shall be so, it does not operate to bar her claim. If, however, the grantor or devisor intends the estate conveyed or devised as in lieu of dower, then it is a jointure, and so operates. The bar arises, not by operation of law, but from the express or implied intention of the husband." "Whether the provision for the wife, by deed or will, shall be regarded as having been made in satisfaction of dower, is a question of intention, to be determined, in general upon the face of the instrument. It is not necessary that such provision should be expressly stated to be in lieu of dower. It will be sufficient if it can be clearly collected from the instrument that it was so intended."

Bearing these principles in mind, it will be seen that, in consideration of the tracts conveyed to her by the deed in question, appellant released all claims to alimony and future support from her husband and his property. She did not release her husband merely from personal liability. She went further, and released his property also. Under the law she would be entitled only to support and maintenance by him during his life, and then to one-half of his personalty and to a life interest in one-third of his real estate for her life. By the conveyance in question she obtained the fee-simple title to almost half of her husband's real estate and a life interest in another tract. The law does not require the conveyance specifically to state that it is made in lieu of dower. It is sufficient if the intention of the grantor is implied from the instrument. This intention, we think, clearly appears in the instrument itself. When M. V. Morgan conveyed the land in question to appellant, we have no doubt it was his purpose that it should be in lieu of dower; and when appellant not only released his husband personally from all claims to alimony and future support, but also released his property from all such claims, we think it equally clear that she accepted the property conveyed to her in lieu of dower.

Upon the question of estoppel, appellee testified that he discussed the proposed purchase of the land in question with appellant, that she told him she and her husband had settled their property rights, and that she made no further claim to the land. This conversation, appellee says, took place in the presence of appellant and her son. When appellant was giving her deposition, her attention was called to the conversation which appellee alleged took place, and she at first answered that she had no recollection of it. Cross- examination develops the fact that appellant thereafter left the room several times and consulted with her attorneys. Upon her return she answered that no such conversation had taken place. Her son testified, also, that no such conversation as related by appellee occurred. It appears, however, from the record, that he was convicted of obtaining money under false pretenses and served a term in the penitentiary. A careful reading of the record leads us to the conclusion that the conversation detailed by appellee actually took place. He knew that appellant had not united in the deed, and we believe he went to her for the purpose of ascertaining whether or not she claimed any further interest in the land which he proposed to purchase. The details of the conversation and the circumstances under which it took place are given in such a straightforward manner that we have no doubt the conversation actually occurred. This view is confirmed by the fact that appellant was anxious to purchase the place herself. Her son admits that he also wanted to purchase it. Such conduct on their part is inconsistent with the theory that appellant had any interest in the land, or intended to assert any claim thereto. We are therefore of opinion that appellee purchased the land in question upon the assurance that appellant and her husband had settled their property rights and that she had no further interest in the property. Under the circumstances, she is now estopped from claiming dower therein.

Judgment affirmed.

Ky.App. 1908.


108 S.W. 233, 32 Ky.L.Rptr. 1196


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