Reversing.
Margaret Hopperton died intestate on April 17, 1941, the owner of two parcels of real estate referred to in the record as No. 1 and No. 2. The former is a house *Page 273 and lot located in the town of Walton, and the latter is a farm of 62 acres which is at the outskirts of the town. Mrs. Hopperton was survived by her husband, C.C. Hopperton, nine children and four grandchildren, three of the latter being infants over 14 years of age.
On Nov. 19, 1941, the husband, individually and as next friend of the infants and joined by one adult heir, brought this action against the other heirs asking the court to set aside the house and lot to him as his curtesy and then to sell it subject to his curtesy interest and to sell the farm as indivisible property and to divide the proceeds among the heirs. Answer and counterclaim was filed by his children and their spouses agreeing to the relief sought in the petition, except they objected to the house and lot being sold subject to their father's curtesy, averring that such would be detrimental to all parties, and they asked that it be set aside as curtesy to him and only the farm be sold. Subsequently an amended petition filed by the husband averred that he had abandoned the curtesy tract and asked that it be sold along with the other tract No. 2, and his curtesy paid him in cash. No service was had on the infant defendants on this amended petition.
On April 21, 1943, judgment was entered directing a sale of both parcels free from the husband's curtesy, and reciting that the husband was 78 years of age and should receive in cash 9.1% of the proceeds of the sale in lieu of his curtesy interest. The property sold for $7,200. The purchasers' exceptions to the report of sale were sustained on the ground that some of the parties were not before the court as to the sale of tract No. 1, the curtesy tract, and that the sale was void as to the infants, but only so much of the judgment as ordered the sale was set aside and all other parts of it were allowed to stand.
On Oct. 16, 1943, the husband died testate and his will named John L. Vest as executor. On Nov. 11, 1943, his children filed an amended answer, counterclaim and cross-petition, setting out the death of their father and averring that his interest in their mother's real estate had terminated with his death, and asking a sale of both parcels. The infants were properly made defendants in this pleading and were duly brought before the court, *Page 274 and on Dec. 21, 1943, judgment was entered thereon directing a sale of both parcels of land and reciting that as the husband died on Oct. 16, 1943, "all his right, title and interest in and to the real estate of his wife, Margaret Hopperton, terminated." The motion of John L. Vest (the husband's executor) to be paid 9.1% of the proceeds of the sale had under this judgment in lieu of his decedent's curtesy interest was sustained and the master commissioner was directed to pay him $644.30. The heirs appealed.
Counsel argue that the question before us is, after the entry of a judgment ordering a sale of real estate free from curtesy or dower and fixing the percentage of the purchase price to be paid in lieu thereof, does the death of the spouse before the cash payment is received terminate his or her interest therein the same as death would terminate his curtesy or her dower interest in the land? However as we see it, that precise question is not presented. The question before us is whether or not the entire judgment of April 21, 1943, was set aside when the chancellor sustained exceptions to the report of sale on the ground that the judgment was void as to the infants, or whether he could limit the order setting aside that judgment so that all parts of the judgment would stand except that portion directing a sale; also, whether or not the judgment of Dec. 21, 1943, reciting the husband's death on Oct. 16, 1943, terminated all of his right, title and interest in and to the real estate of his deceased wife was effective after the first judgment fixing his interest in the proceeds from the sale of his wife's property at 9.1% was set aside.
The judgment of April 21, 1943, was void as to the infants and the order setting it aside so recited. Therefore, there was no valid order directing a sale of the real estate free from the husband's right of curtesy and fixing his present cash value in lieu thereof. The necessary parties were not before the court on the amended petition of C.C. Hopperton, since it was filed without service being had on the infant defendants, and its prayer, as to both tracts No. 1 and No. 2, constituted a material departure from the prayer in the original petition. See Howard v. Singleton,
With the void judgment of April 21, 1943, out of the way, it is evident that the judgment of Dec. 21, 1943, became effective and it ordered a sale of the property and recited that the husband having died on Oct. 16, 1943, all of his interest in his wife's real estate terminated with his death. Had there been a valid judgment entered before the husband's death which ordered a sale of the real estate free from his curtesy interest and fixed the percentage he would receive from the proceeds of the sale in lieu of his curtesy, we could not say that his interest in the cash proceeds terminated with his death before he received payment, as we are not in accord with appellants' contention that the husband had to survive a sale of the land in order to obtain the cash value of his right of curtesy.
The right of quarantine is the privilege given a widow to use certain portions of the husband's estate until dower is allotted. 17 Am. Jur. Sec. 105, p. 762. In this State KRS
Section 495 of the Civil Code of Practice is to the effect that the court may with or without the consent of the widow order the sale of land in which she has a dower interest free from her right of dower and provides that she shall receive cash in lieu of having dower allotted in the land. In construing this section in Vanderpool's Heirs v. Vanderpool's Heirs,
In the instant case had there been a valid order directing a sale free from curtesy, or one fixing the present cash value of the husband's curtesy, that would have been equivalent to converting his curtesy interest into cash and his death before he received payment, or even before the land was sold, would not have terminated his interest in the cash because it would have vested in him from the moment the order was entered. The basis for this is that such order shows the termination of the quarantine and that the curtesy in the wife's real estate had been surrendered and that cash had been accepted in lieu thereof. 17 Am. Jur., Dower, Sec. 54, p. 709.
The effect of the death of a spouse prior to the receipt by him or her of cash agreed to be accepted in lieu of curtesy or dower seems never to have been passed upon by this court, and from the paucity of authority on the subject it appears the question has rarely been presented for determination. See annotations in Ann. Cas. 1914D, 554. However, the conclusions we have reached are supported by the few authorities cited in briefs and the one or two our limited research has found.
In Robinson v. Govers,
To the same effect as the Robinson opinion is the decision in Fulton v. Fulton, 8 Abb. N.C., N.Y., 210. In Mulford v. Hiers,
McLaughlin v. McLaughlin,
It appears to us that the distinction the Mulford opinion makes between lands sold in the widow's lifetime and those sold after her death is not logical in view of the above quotation from that opinion. It strikes us that the right of the widow to receive the cash equivalent of her dower becomes vested upon her filing her consent to accept it or upon the court ordering the land sold free from dower and fixing the cash equivalent thereof.
Sims v. Yerkes,
While not directly in point here, in Georgetown Nat. Bank v. Ford,
The judgment is reversed because there was no valid order entered before the death of the husband directing *Page 279 a sale of the real estate free from his right of curtesy, or fixing the cash equivalent thereof, and a judgment will be entered in conformity with this opinion.
The judgment is reversed.