
    CASE 38. — CONSOLIDATED ACTIONS BY THE 'GLOBE BANK & TRUST COMPANY AND THE FIRST NATIONAL BANK OF PADUCAH AGAINST GEORGE W. BAINS AND OTHERS. —
    January 20, 1910.
    Bains, &c. v. Globe Bank & Trust Co. First National Bank of Paducah, &c. v. Bains, &c.
    Appeal from McCracken Circuit Court.
    
      W. M. Beed, Circuit Judge:
    Prom the judgment, some of the defendants appeal and plaintiffs file cross-appeal.
    Judgment on crosshppeal affirmed and .on appeal of defendants reversed.
    1. Wills — Married Women — Rights of Husband. — Under the statute giving the wife the right to dispose - of her property by will, and giving the husband the rig-ht to elect to take under the will, a wife’s property, not subject to the husband’s creditors, passes under her will, unless the husband, elects to take under the statute, and the husband’s creditors may not complain of his election to take under the will, and equity will not compel him to exercise- his election for the benefit of his creditors.
    2. Life Estates — Enhancement in Value — Right of Remainder-men. — The enhancement in the value of corporate stock while in the hands of the life tenant under a will bequeathing the same to one for life, with gift over to others, belongs to the remaindermen.
    D. G. PARK for First National Bank.
    JOHN G. MILLER, W. MIKE OLIVER, HENDRICK & CORBETT and WM. MARBLE for heirs and devisees of Willhelm.
    BRADSHAW & BRADSHAW for Bains.
   Opinion op the Court by

Judge Hobson —

Beversing.

The Globe Bank & Trust Company brought this suit in the McCracken Circuit Court to enforce the collection of two notes aggregating the sum of $5,-811.35, executed to it by the Begister Newspaper Company, with James E. Wilhelm, M. E. Beadles, and Ella B. Wilhelm as sureties; the latter being the wife of James E. Wilhelm, and Mrs, Beadles being his mother-in-law, the widow of William E. Beadles, who died in October, 1893. Mrs. Wilhelm executed no mortgage to secure the notes, and they were therefore unenforceable against her, as she was only a surety in them. Prior to the death of William Beadles, he deeded to her real estate in Paducah, which is now very valuable. She died on April 4,1908, leaving surviving her her husband and four children. She and her husband were married in 1887, and had issue born in 1889. The bank insisted that at her death her husband took an estate by the curtesy in this land, and undertook to subject it to its debt. She left a will, which was duly admitted to probate, by which she devised the land to her children, giving her husband in effect a home there with them, and devised to him other property. Her will was duly admitted to probate and was not renounced by the husband; on the contrary he accepted its provisions and took under it. It is insisted for the bank that in so doing he practiced a fraud upon his creditors, and that, notwithstanding the will and the fact that he has not renounced the will, he still owns a life estate in the land which may he subjected to its debt. The circuit court so held, and the devisees of Mrs'. Wilhelm appeal.

Under the law in force before the adoption of the 'present statutes, a married woman might be empowered by a decree in chancery to dispose of her property by will. Mrs. Sallie H. Wills was so empowered and made a will devising ber land to others. Her husband’s creditors interposed and insisted that the land was subject to their debts. The court, rejecting this, in Garner v. Wills, 92 Ky. 388, 17 S. W. 1024, 13 Ky. Law Rep. 727, said:

“The power conferred upon Mrs. Wills by that judgment, if a valid judgment, had the effect to remove the disability of coverture in respect to disposing of her real estate by will and to deprive her husband of any interest therein that the law would have otherwise given him at her death, had she not disposed of the same by will. But it is said such power should not be so construed' as to deprive the husband of his right to curtesy in his wife’s land so far at least, as creditors are concerned, as that would be a fraud upon them. But why would the exercise of such power be any more a fraud upon them than the sale or gift of the land by the husband and wife. If the wife had conveyed her land by deed of gift to her children, the husband joining in the deed to his creditors, after her death, could not complain, because he had at the time of the conveyance no interest in the land that was subject to their demands against him; his right to curtesy, even if there were issue born alive, would depend upon the contingency of his wife dying first, or said estate being disposed of in her lifetime. His right of curtesy does not attach upon marriage like the wife’s inchoate right to dower attaches upon marriage, which right she cannot be deprived of without her consent exercised in a certain way; but the husband’s right to curtesy is entirely Contingent upon having issue born alive and his wife’s death preceding his, the owner of the land; and,- as said, if he and his wife sell the land, his creditors cannot complain of being defrauded by the sale; and, so if the court empowers her to dispose of her land, which includes his contingent right of curtesy, by her will. We percieve no difference in'the effect upon creditors in the two cases.”

The same question was again presented to this court in Bottom v. Fultz, 124 Ky. 302, 98 S. W. 1037, 30 Ky. Law Rep. 479. The court, reaching the same conclusion under the present statute, said: “This court has decided in the cases of Brand v. Brand (109 Ky. 721), 60 S. W. 704, 22 Ky. Law Rep. 1366, Grillispie v. Boisseau, 64 S. W. 730, 23 Ky. Law Rep. 1046, and Smoot v. Heyser, 113 Ky. 81, 67 S. W. 21, 23 Ky. Law Rep. 2401, that a husband may renounce the will of his wife as provided by section 2067 (Ky. St. 1903). This is a personal privilege given to the husband, and it is one which he may exercise or not, at his own pleasure; and we are of the opinion that the court could not require of appellant that he ex-ereise that right. The law provides that he may, within one year, renounce the will and elect to take under the law. If he wishes to avail himself .of his statutory right, he must follow the provisions of the statute, and his failure to do so within the time prescribed amounts to an election on his part to stand by the provisions of the will; but he has the entire year within which to act. The trial judge was evidently of opinion that appellant could not be required to elect, and, as he had not renounced the will as prescribed by law, that he was taking under it. ’ ’

We adhere to the rule thus laid down. The cases to which we are referred in other jurisdictions holding otherwise seem to have turned on statutes which differ from ours. Our statutes give the wife the right to dispose of her property by will; she is given the right to dispose of all of her estate in this way. The husband, like any other devisee, is given by the statute the election to take under the will or not; but the chancellor will not for the benefit of his creditors control him in exercising his discretion in this matter. Hill, etc., v. Cornwall & Bro., 95 Ky. 512, 26 S. W. 540, 16 Ky. Law Rep. 97; Townsend v. Townsend, 127 Ky. 230, 105 S. W. 937, 32 Ky. Law Rep. 240, 16 L. R. A. (N. S.) 316.

The object of the statute was to protect the wife not only in the enjoyment of her property while living, but to enable her to dispose of it by will at her death; and the husband’s creditors cannot complain •of any disposition which she makes of the property. It was not subject to their debts while she lived. She and her husband could have deeded it to the children then, and the creditors could not-have complained. When the same result is¡ reached by will, they are equally without ground of complaint. Her property passes under her will, unless the will is renounced as provided by the statute.

This disposes of the first appeal. The other appeal arises in this way: The First National Bank of Paducah held similar notes, and it brought an action for their enforcement. This action was consolidated with the action which had been br'ought by the Globe Bank & Trust Company; and in the consolidated actions both banks undertook to hold the estate of Mrs. Wilhelm and her sister, Mrs. Bains, who had also died, liable'on these facts: They were the daughters of Mrs. Beadles, and it was insisted that they had received estate from her' to the amount of the debts and were therefore liable for the debts. The estate which Mrs. Beadles had came to her from her husband, William Beadles, under the following provisions-of Ms will: “I give to my wife, Mary E. Beadles, all' of my estate, both real and personal, to have, nse, and enjoy during her life time, and at her death, to be equally divided between my two daughters Mrs. Ella .Wilhelm and Mrs. Mary Perldns.” Mary Perkins named in the will was afterwards Mary Bains. The banks insisted that Mrs. Beadles under the will of her husband took all the estate as life tenant, that she did not spend the income, that the accumulation of income belonged to her in her own right, and that this property descended from her at her death to her two daughters, and did not come to them under their father’s will.

The personal property that came to Mrs. Beadles, as shown by the appraisement, amounted to $37,723.-28. In addition to this, she received about $1,550 that was not appraised, making the total amount received by her $39,273.28. After her death the two daughters made a division of the estate, and in this division the estate was put at $61,918; but this division included the real estate to the extent of $13,000 which had been in the hands of Mrs. B'eadles, and it also included the property deeded to Mrs. Wilhelm which was valued at $5,000, making it in all $18,000 of real estate. It also included $1,600 advanced to Mrs. Wilhelm by her father before his death, and $3,000 advanced to Mrs. Baines by him. These sums aggregated $4,600, and when added to the real estate make $22,600. In addition to this, the bank stock in this division was valued much higher than in the appraisement. The enhancement in the value of the stock while in the hands of the life tenant belonged to the remaindermen. Letcher v. German National Bank, 134 Ky. 24, 119 S. W. 236. When we deduct all of these items from $61,918, the amount the property was appraised at in the division between the two daughters, the balance is a little less than the amount of the estate that went into the hands of Mrs. Beadles. In addition to this, among the property which was turned over to the two daughters were notes and other things not of the cash value that they were put at in that appraisement; and so, on the whole, it is apparent that, instead of the fund increasing in the hands of the life tenant, there was a considerable shrinkage. This conclusion makes it unnecessary for us to consider what were Mrs, Beadles’ rights under the will of her husband, for we conclude that tliere was no accumulation of income while the estate remained in her hands.

On the appeal of the Globe Bank & Trust Company, and the First National Bank, and on the cross-appeal of the Globe Bank & Trust Company, the judgment is affirmed. On the appeal of J. E. Wilhelm, G.' W. Bains, etc., the judgment is reversed, and cause remanded to the circuit court with directions to the circuit court to dismiss the plaintiff’s petitions.  