McCulley v. Hardeman. should be so construed in so far as to protect her fully in said right. (Post. pp. 6-10.) 3. DOWER. Essentials are marriage, death, seizin and possession. Under Shannon's Code, section 4139 (Act of 1784), providing that if any person die intestate leaving a widow she shall be entitled to dower in all the lands of which her husband died seized and possessed or of which he was the equitable owner, three things are essential to dower: Marriage, death, seizin, and possession. (Post, pp. 6-10.) 1. DOWER. Widow not entitled to dower in lands which husband conveyed before marriage, where it was agreed she should take no in terest. Under Shannon's Code, section 4139, declaring a widow shall be entitled to dower in lands of which her husband died seized and possessed, or of which he was the equitable owner, and section 4140, declaring that she shall be entitled to dower in lands mortgaged or conveyed in trust, when the husband dies before foreclosure, as well as section 4149, declaring that any conveyances made with intent to defeat the widow's dower shall be void, a widow is not entitled to dower in lands which the husband conveyed before marriage, where an antenuptial agreement provided that she should take no interest in such property, for it cannot be said that the lands were conveyed with intent to defeat her dower, and, undoubtedly, the husband was not seized of the land at the time of the marriage or thereafter. (Post, pp. 6-10.) Cases cited and approved: Apple v. Apple, 38 Tenn., 348; Lunsford v. Jarrett, 79 Tenn., 194; Bond v. Bond, 84 Tenn., 307; McIntosh v. Ladd, 21 Tenn., 465; Reynolds v. Vance, 48 Tenn., 345. Code cited and construed: Sec 4139 (S.). FROM CHESTER. Appeal from the Chancery Court of Chester County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.-HoN. J. W. Ross, Chancellor. McCulley v. Hardeman. BOND & BOND and J. I. GALBRAITH, for plaintiff. W. G. TIMBERLAKE, for defendants. MR. SPECIAL JUSTICE CASSELL delivered the opinion of the Court. Bill in chancery court of Chester county by complainant, Mrs. Lida McCulley, against Hardeman and wife for the purpose of setting aside certain conveyances hereinafter mentioned, for the purpose of having a dower and homestead set apart to the complainant in two certain lots and storehouses in Henderson, Tenn., formerly owned by her deceased husband, J. A. McCully, and for the purpose of setting up and enforcing a certain contract between herself and McCully, and in conformity with the allegations of her bill the relief asked for was both specific and general. To this bill defendants interposed a demurrer, the various grounds of which were overruled, with the exception of the first ground, which was sustained by the chancellor, and thereafter the defendant filed an answer denying all of the material facts alleged in the bill; especially was it denied that defendants were guilty of or party to any fraud; and it was denied that complainant was entitled to any homestead and dower in the two lots and store buildings. The chancellor decreed that the complainant was entitled to dower in the two brick storehouses above mentioned, and set the conveyance aside which McCulley had made to Hardeman and wife on June 3, 1915, and decreed the complainant certain rents issuing therefrom, but expressly exonerated the defendants, Hardeman and wife, from any fraud. The chancellor McCulley v. Hardeman. also held that McCulley left fourteen acres of land near Henderson, and a homestead was decreed complainant out of this land. No other relief was granted by the chancellor, who taxed the costs three-fourths to the complainant and one-fourth to the defendants. From this decree Hardeman and wife as well as complainant perfected appeals to the court of civil appeals, and both parties have filed bills of exception, which brought up for consideration questions as to admission and exclusion of certain evidence. The court of civil appeals has reversed the chancellor in allowing the complainant a right of dower in the two storehouses and lots in question, and this, with the validity and effect of the prenuptial contract, is the only material question before us for consideration, as we view the record. Complainant has filed a petition for writ of certiorari to this court. The facts in the case so far as pertinent to this inquiry are as follows: McCulley, a widower seventy-six years old, entered into a prenuptial contract with Miss Raines on the 3d day of June, 1915, as follows: "Humboldt, Tenn., June 3, 1915. "Article of agreement entered into this day by J. A. McCulley and Miss Lide Raines regarding real estate and any other effects in the name of J. A. McCulley in case they are married. "A list of property and effects are herein appended"One small farm in suberbs of Henderson, Tenn., worth $1000. "Two shares of stock in Peoples Savings Bank, Jackson, Tenn. "Six shares of stock, at Henderson, Tenn., in Peoples Savings Bank. (Half paid in.) McCulley v. Hardeman. "Bank of Commerce, Jackson, Tenn. of stock ($200.00). Two shares "Nuckles Fite Grocery Co., Jackson, Tenn. Two shares of stock ($100.00). "Two thousand dollars worth of notes and accounts uncollected. "The above notes and accounts are supposed to be worth $500.00. "This includes the property of J. A. McCulley. "It is unincumbered and also excludes one lot and two small store houses in Henderson, Tenn. That both parties are to use the proceeds of rents at will and both parties agree that both parties can sell or dispose of at any time. The above agreement is made and entered into in good faith and remains in full force as long as both parties live. In case of death of either party the aforesaid property and effects and all crude interests goes to the other party during their natural life, then disposed of by the one as may be directed. The above agreement & contract does not include any property that belongs to Miss Lide Rains in real estate and other effects. Here unto fix our signatures“Atest: W. L. COPLIN. J. A. MCCULLEY. LIDE RAINES." "MRS. L. G. COPLIN. On the same day that the above contract was entered into, in consideration of love and affection, a deed was executed to the two storehouses and lots in Henderson to M. B. Hardeman and wife by McCulley (Mrs. Hardeman was an adopted child of McCulley and his first wife), and this deed was registered on June 7, 1915. On June 6th Miss Raines and Mr. McCulley were married and lived together as husband and wife until McCulley v. Hardeman. the following spring when he died, and, so far as the records show, she was a good and faithful wife and gave him every attention during his sickness. The question before us now is whether there is any error in the holding of the court of civil appeals in reversing the chancellor as to the two storehouses and lots, and we are of the opinion that there is not. The right of Mrs. McCulley to recover in this cause two storehouses and lots depends on her successfully maintaining one of two propositions: First. Was the deed from McCulley to Hardeman and wife a fraud in fact or in law on complainant's rights. Upon this Upon point the marriage contract is of much evidential importance. Under this contract this property is expressly excluded from the operation of the same, and hence she cannot recover an interest in this property by virtue of this prenuptial contract, nor is the conveyance of the property to Hardeman and wife by deed of June 3, 1915, a fraud on any rights of property that became vested in her by her marriage with McCulley, for it was never intended she should have any interest in this property. Second. Her rights, if any, in these properties must be based on her right of dower in the property of McCulley of which he was seized at the time of his death, and on the determination of this question hinges the result of this controversy. We must now go somewhat into the history of the origin and meaning of dower, so as to know its full purpose, for an intelligent disposition of this feature of the case. |