McCulley v. Hardeman.

"The origin of dower is involved in much doubt and obscurity. Its introduction in England is of such antiquity that its origin cannot be traced with any degree of certainty. Blackstone does not attempt to definitely declare its origin, but rests content with the statement that in England it may be the relic of any early Danish custom. It is certain that dower is recognized in the Magna Charta of King John granted June 15, 1215, and subsequently amended and confirmed in the reigns of Henry III and Edward I. In the Magna Charta, as thus amended and confirmed, the law of dower in its modern sense and enlarged extent, as applying to all the lands of which the husband was seized during the coverture, was clearly defined and firmly established. Since the Magna Charta was declaratory of existing customs and regulations and was enacted for their preservation, dower must have existed as a distinct institution prior to the enactment of that instrument. Coke says that it was certainly the law of England before the Norman conquest that a widow should continue a whole year in her husband's house, after his death, within which time her dower was to be assigned to her.

"In many of the United States dower, exactly or substantially as it existed at common law, has been recognized as in force or adopted by judicial declaration or by express constitutional or statutory provisions, while in others it has been very materially changed by statute.

"A statute in derogation of the widow's common-law right of dower should be so construed in so far as to protect her fully in said right, for, as has often been said, dower is a legal, equitable, and moral right favor

McCulley v. Hardeman.

ed in high degree by law and next to life and liberty held sacred."

Coke, Litt. 124b; 14 Cyc., 885.

Our statutes in Tennessee appertaining to dower are as follows (section 4139 of Shannon's Code):

"If any person die intestate, leaving a widow, she shall be entitled to a dower in one-third part of all the lands of which her husband died seized and possessed, or of which he was equitable owner."

The above statute was taken from the Acts of the General Assembly of the State of Tennessee of the year 1784.

Now, under this section, in order for a widow to obtain dower in a one-third part of the lands of her husband three things are requisite: Marriage, death, seizin, and possession. Apple v. Apple, 1 Head, 348, 350 and 352; Lunsford v. Jarrett, 11 Lea, 194; Bond v. Bond, 6 Lea, 307.

Under another statute it is provided: "She shall also be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage or sale under the deed." Section 4140, Shannon's Code.

It is further provided in the statutes as follows: "Any conveyances made fraudulently to children or others, with an intent to defeat the widow of her dower, shall be void, and such widow shall be entitled to dower in the land so fraudulently conveyed as if no conveyance had been made." Section 4149, Shannon's Code.

Now, when we notice closely the wording of the above statute we observe that the conveyance must be made with intent to defeat the widow of her dower in

McCulley v. Hardeman.

order to be void. It has been held by this court that the conveyance sought to be set aside must have been made with actual intent to defraud the widow of her dower. McIntosh v. Ladd, 1 Humph., 465; Reynolds v. Vance, 1 Heisk., 345. This being true, how can it be said that there was any intent to defeat Mrs. McCulley of any interest in these houses and lots when, as a matter of fact, before the marriage (in the marriage contract) she had expressly agreed that this very property should not be subject to her marital rights? This being so, the deed from McCulley to Hardeman was in no way a fraud on her rights, nor did it have the effect in law to deprive her of any of her property rights. Complainant had expressly agreed that as to this particular property she was to have no claim.

We do not see how any court of equity, in the face of her own written admitted prenuptial agreement, can give her dower in property in question.

Did McCulley die seized of the property in question? If he did, then complainant has a dower therein. On June 3d he executed and delivered to M. B. Hardeman and wife a deed for the same. The effect of the delivery of this deed was to vest in Hardeman and wife title in fee to the two storehouses and lots, and, after the deed was delivered to Hardeman, McCulley has no legal or equitable estate in said property, and even though complainant married McCulley three days later, yet the property had been deeded away and McCulley, neither at the time of the marriage, nor some nine months later (at the time of his death), was seized of the estate, so no dower rights vested.

McCulley v. Hardeman.

We therefore are content to affirm the court of civil appeals, and hence the petition for writs of certiorari will be denied. The costs of this court and of the courts below will be adjudged against the complainant, Mrs. McCulley.

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF TENNESSEE

AT THE

NASHVILLE, DECEMBER TERM, 1919.

ERNEST ALLEN et al. v. JOSEPH H. CUNNINGHAM.*

(Nashville. December Term, 1919.)

1. INSURANCE. Member of benefit society held under evidence mentally competent to change beneficiaries.

In an action on mutual benefit certificate between former beneficiaries and beneficiary at time of member's death, evidence held to show that member was a person of sound mind at the time she changed beneficiaries. (Post, pp. 11-21.)

2. INSURANCE. Evidence held sufficient to show that change of beneficiaries was procured through fraud.

In action on mutual benefit certificate between former beneficiaries and beneficiary at time of the member's death, evidence held insufficient to show that the issuance of the new certificate changing the beneficiaries was secured through fraud or imposition on the part of the person named as beneficiary in new certificate. (Post, pp. 21-24.)

Cases cited and approved: Wilson v. State, 100 Tenn., 596; Goodall v. Thurman, 38 Tenn., 209.

Code cited and construed: Sec. 3369a 82 (S.)

*On right to recover premiums paid on policy which is invalid for want of insurable interest, see notes in 3 B. R. C., 839; L. R. A., 1917A, 477.

The question as to who are "dependents" within statute or rules defining beneficiaries of mutual benefit societies, is discussed in notes in 2 L. R. A. (N. S.), 653; 36 L. R. A. (N. S.), 208; 37 L. R. A. (N. S.), 1191 and 51 L. R. A. (N. S.), 726.

On rights and remedies of prior beneficiary where insured was mentally incompetent when he made a change of beneficiaries, or a change was accomplished by fraud or undue influence, see note in L. R. A., 1916C, 1132.