
    Keys v. Keys.
    1. Husband and Wife. Bond for Separation: Reconciliation. Husband and wife agreed to a separation. A bond was executed with penalty. In it the wife relinquished all claim to dower or year’s support, and agreed to maintain herself and child with certain property set forth in the bond. The trustee of the wife took possession of this property. The wife agreed after three months to] live with her husband, and continued to do so until his death, thirteen years afterward. The bond was agreed to be cancelled as a condition of reconciliation. The trustee returned the property to the husband. It was error, therefore, to decree an account against the wife, now a widow, and her trustee, for the property mentioned in the bond. The bond had become a nullity.
    2. Same. JEstoppel of Heirs. The sum of $400, part of the property in the bond of separation mentioned, with the knowledge and consent of the husband, came into the hands of the wife after the reconciliation, and was, with the husband’s acquiescence, invested in a tract of land, the deed being taken in the name of the wife. The heirs of the husband are estopped from setting up title to this land.
    3. Real Estate. Verbal Gift. Possession over twenty years. So dower. A father, by verbal gift, put his son into the possession of sixty acres of land, permitted him to occupy for over twenty years, to erect valuable improvements, pay the taxes, and continuously spoke of the place as his son’s until lie died. As the father, by lapse of time, had lost all right to recover possession, the widow of the father is not entitled to dower in this tract. The son is to be charged with it as an advancement, valued as of the date of taking possession under the verbal gift.
    PROM 'WASHINGTON.
    From Chancery Court at Jonesboro, May Term, 1871, writ of error. H. C. Smith.
    -, for complainant.
    Kirkpatrick & Reeve, for defendant, who said:
    For respondents it is insisted that the bond executed April 10, 1856, by complainant, Elizabeth Keys, and defendant, Enos Kincheloe, as trustee, was not made in consideration of the separation of said complainant and the intestate John Keys, Jr., but was based upon the consideration of said complainant having agreed to release the intestate from the charge of her and her child’s support and maintenance during his life, and a release of her claim for dower, etc.,' out of his estate in. the event she survived him. And the date of the execution of same was subsequent to the separation of said parties; and also that the validity of said bond was not effected by the after reconciliation of said parties.
    Secondly, it is insisted that although the bond in question was executed in consideration of the separation of the parties named, and was void as to the complainant, Elizabeth, on account of her incapacity to contract during coverture; yet after discoverture she is not entitled to claim both .the provision made for her in the deed, and dower and a distributive share out of her husband’s estate; and if she sue for the latter, that is an election to abandon the former. Watkins v. Watkins, 7 Yer., 283, 295; Parham v. Parham, 6 Hum., 287, 297. And although the deed be void as to the wife ah initio, or if the same be voidable as to her by the subsequent acts of the parties, yet after the property set over in the deed to the trustee has passed into his possession he will be held to account for the same if the wife, after dis-coverture, elect to take dower, ect., and he can only be discharged from liability by returning to the husband’s estate the property entrusted to him. Ib.
    
    Eor respondent, James M. Keys, it is insisted that his possession of the sixty acre tract of land mentioned in the pleadings cannot now be disturbed. He having gone into possession of same. under a parol gift from his father, and held the possession thereof adversely to all the world for a period of about twenty-three years, his possession is protected under the second section of the Act of 1819. Haynes et al, v. Jones et al., 2 Head, 372, 376; 3 Yer., 397.
    Possession of the land on the part of the husband being an essential requisite to dower — 5 Hay, 278; 1 Head, 348. — where defendants in their answer admit facts stated in the bill, but seek to avoid the same by stating new and distinct facts, such statements ¡must be sustained by proof. 2 Johns Ch. B», 62; 12 Peters, 175; Eq. Dig. Title Ev., secs. 171, 178, 259; 6 Yer., 108; Heis. Dig., 531.
   NicholsON, C. J.,

delivered the opinion of the court.

This bill was filed by Elizabeth Keys as widow and administratrix of John Keys, deceased, against his heirs and distributees for the purpose of settling questions arising under an article of separation between deceased and complainant, Elizabeth, to settle conflicting claims of some of the heirs as to lands held under parol gifts, to have dower allotted to the widow, and to have the lands sold for partition.

The question under the article of separation arises under the following facts:

In 1856 John Keys and his wife, Elizabeth, agreed to separate, and at the time, or soon after the separation, she and her brother, Enos Kincheloe, as her trustee, executed a bond in the penalty of $3,000, payable to John Keys, conditioned that with certain personal property' and choses in action therein enumerated, she would maintain herself and an infant son, the child of their marriage, and that she would set up no claim to dower or a year’s support after his death. The property specified was taken into possession by the trustee, with whom the complainant, Elizabeth, lived during the separation. After, living apart for some three months, the husband made application to his wife to return home and live with him. She consented to do so upon his agreeing that the bond should be set aside and held for nothing. She accordingly returned to his house and lived with him as his wife until his death in 1869.

It is clear that the bond was a nullity so far as the wife was concerned, and according to the proof it was to be destroyed upon her returning to live with her husband. He became at once entitled to all the property she had received from him upon her separation. "We think the proof shows satisfactorily that the property, except a note of about $400, was returned to the husband; and it is shown that after the reconciliation the wife collected this note and vested the money in the purchase of a tract of land, taking the title in her own name, with the knowledge and consent of her husband. The Chancellor held that the bond was rendered nugatory by the reconciliation and reunion of the parties, but that Kincheloe, the trustee, was liable to account for such of the' property as was not returned, and ordered such account to be taken. He also held that the $400 vested in the tract of land was the' money of the husband, and that the title be divested out of the wife and be vested in the heirs of John Keys. Prom these rulings the widow and Kincheloe have appealed.

The Chancellor erred in ordering an account against the widow and Kincheloe as to the property embraced in the bond. In the first place the bond can be regarded as of no further force after the wife returned home in pursuance of his agreement to destroy it, and thereupon Kincheloe ceased to have any authority or any responsibility as trustee. The property, after the setting aside of the bond, belonged to the husband, and we think the proof shows that it was all restored to him except the note for $400. We concur with the Chancellor in his conclusion as to the ownership of the $400, but as it was invested with the husband’s knowledge and consent in the twenty-acre tract, and the title taken in the name of his wife, his heirs are estopped from setting up title to it.

The only other question for determination is presented by the appeal of James M. Keys. He claims sixty acres of land by parol gift from his father. The Chancellor held that the land belonged to the estate, and was subject to partition and to the widow’s claim for dower. From this holding he appeals. It is abundantly proved that he had occupied and claimed the land continually for more than twenty years before the death of his father, John Keys, under a parol gift, and that his father • all the time spoke of the land as belonging to and intended for his son. He had paid taxes on it all the time, and had put valuable improvements on it, his father setting up no claim, but acquiescing in the claim of ownership by his son. We think the facts make out a possessory right in the son, under our statutes, which had barred the father’s right of possession before his death. The legal title continued in the father, but his remedy for the enforcement of the right was barred by an adverse possession of more than twenty years. Haynes v. Jones, 2 Head, 372. As John Keys, at the time of his death, had no right of possession in the land, it follows that his widow could have no right to dower. Apple v. Apple, 1 Head, 348. And the son is to be charged with the land as an advancement at its value at the time of the parol gift. 2 Head, 372.

The decree of the Chancellor, therefore, is reversed as to so much of it as orders an account against the widow and her trustee as to the property embraced in the bond of separation, and as to so much as subjects the sixty acres of land claimed by. James M. Keys to the right of dower, and to so much as decrees the twenty acres to the heirs of deceased. In all other respects the decree is affirmed. The cause will be remanded, that the decree as modified may' be executed. The costs of this court will be paid by the administrator and administratrix, out of the estate of John Keys, deceased.  