will that would either disinherit her entirely or give to her much less property and money than she would receive under the paper she signed; that at the time the paper was written, she was in the state of Florida, among strangers, and had no one with whom she could confer or consult, but that, notwithstanding her disinclination to execute the paper, he prevailed on her to sign it. She also averred that his representations with reference to the value of his property were false, and that his estate, instead of being worth $45,000 or $50,000 was worth at least $90,000, all of it being in money and collectible evidences of debt except the real estate mentioned in the writing. It was further averred that the representations as to the value of his estate were made by him for the purpose of deceiving and misleading her, and for the purpose of securing her signature to the writing, and that when she signed the writing she believed that she was getting under it about one-third of his estate, as the property and money mentioned in the writing amounted in value to about $15,000. She also averred that in his will and codicil he did not give to their children the character of estate that he promised. After various motions and demurrers had been disposed of, the executor, as well as the infants, by their guardian ad litem, filed answers, in which, after denying all the material averments of the petition as amended, it was set up that the paper executed by Mrs. Redwine was a voluntary proposition upon her part to her husband to accept in lieu of her dower and distributable interest in his estate the property and money mentioned in the writing, and that her husband in executing this will accepted her proposition and devised to her the estate therein set forth, and the same had been tendered to her by the executor. It was further set up that the writing signed by her was executed in the state of Florida, and under the laws of that state was binding and enforceable; that but for the execution and delivery of the paper her husband would have given his property absolutely in his lifetime to his infant children, which he could have done, as all of his personal estate was susceptible of manual delivery, and that he was only prevented from doing this by the proposition made to him by his wife, which he accepted; that having thus prevented him from disposing of his estate otherwise than he did in his will and in the manner in which he would have disposed of it except for the writing, his widow was estopped to attack its validity. To these answers a general demurrer was sustained, followed by a judgment canceling the paper signed by Mrs. Redwine, and upholding the effectiveness of the renunciation of the will. It was further adjudged that as the paper was canceled and the will renounced, the widow was entitled to her dowable nd distributable interest in the estate of her husband. From this judgment the executor and infants have prosecuted this appeal. [1, 2] The record only presents for decision questions of law arising on the pleadings, and these may really be resolved into one, as the case turns upon the validity of the paper executed by Mrs. Redwine and her right to renounce or avoid it. With this paper out of the way, or treating it as having no effect there can be no doubt of her right to renounce, as she did, the will and take under the statute her distributable and dowable interest in the estate of her husband. It is so provided in section 1404 of the Kentucky Statutes, reading in part: "When a widow.claims her dowable and disshall be charged with the value of any devise or tributable share of her husband's estate, she bequest to her by his will; or she may, though under full age, relinquish what is given her by the will, and thereupon receive her dower and distributable share as if no will had been made; but such relinquishment must be made within twelve months after the probate, and acknowledged before and left for record with the clerk knowledged before a subscribing witness, and of the court where probate was made, or acproved before and left with the clerk. * We have also in section 2136 a statute reading: "A conveyance or devise of real or personal estate, by way of jointure, may bar the wife's interest in the property and estate of the husher consent, or during her infancy or after marband; but if made before marriage, without riage, she may, within twelve months after her husband's death, waive the jointure by written and left with the clerk of the county court, and relinquishment, acknowledged or proved before have her dower or share of his estate as herein provided. When she so demands and receives her dower, or such share of his estate, the estate conveyed or devised in lieu thereof shall determine and revert to the heirs or representativs of the grantor or devisor." And if this paper operated as a jointure and the jointure statute is applicable, there can be no doubt that the widow waived the jointure by the written relinquishment acknowledged and left with the clerk of the county court of Breathitt county, and thereby became entitled to her dowable and distributable share of the estate of her husband under the statute. It is argued, however, that as the wife had a right to enter into a contract with her husband under which she would receive a certain portion of his estate in lieu of dower and distribution, she could not, after the death of her husband, voluntarily elect to renounce a contract entered into during marriage; that this contract is equally as binding as any other valid contract, and can only be set aside or annulled for grounds that would authorize the cancellation of any other valid, enforceable contract between the husband and wife. This argument is rested on section 2128 of the Kentucky Statutes, enacted for the purpose of enlarging the rights of married women and giving them power to enter into contracts the same as if they were unmarried. In other words, under this statute, the common-law rule, previously prevail "A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued, as a single ing in this state, that the husband and wife | so much of section 2136 as provides that it were incapable of contracting except in con- is entirely optional with the wife whether templation of separation, was abrogated by she will elect to abide by contracts made the statute, which reads in part: with her husband or elect to renounce them. Before the adoption of section 2128, this written election was plainly conferred by section 2136. The widow was not bound by her contracts as wife, and, although she might have voluntarily and freely agreed to accept the provisions of a conveyance or devise in lieu of dower, this agreement was subject to her unrestrained right to set it aside by a relinquishment perfected in the time and manner provided by the statute. woman." The first question, therefore, is, Does this statute have the effect of repealing by implication so much of section 2136 as provides that a conveyance or devise of real or personal property by way of jointure, if made after marriage, may be waived by the wife by a written relinquishment, and thereby she will become entitled to her dower and distributable estate under other statutes? On behalf of the executor the argument is made that the necessary effect of section 2128, and its proper construction, is to empower the wife to make contracts of every kind and character with the husband the same as if she were an unmarried woman, and that it was not intended to except from the operation of this statute the right of the wife to voluntarily contract with her husband for a portion of his estate in lieu of dower and distribution. In support of this we are referred to the case of Coleman v. Coleman, 142 Ky. 36, 133 S. W. 1003, in which the court said: [3] Having this view of the matter, we hold that where the wife, uninfluenced by fraud or deceit, upon a sufficient consideration, freely and voluntarily agrees to accept a conveyance or devise of property in lieu of her dower and distributable share of her husband's estate, and the husband executes his part of the contract by conveying or devising, as the case may be, to the wife the estate she so agreed to accept, she cannot, after his death, voluntarily set aside her contract by merely observing the form of relinquishment provided in the statute. The remaining question to be considered is, Was there a sufficient consideration moving to the wife to estop her from electing to avoid this contract, and did she freely and voluntarily enter into it? In disposing of this question we will assume that the wife entered into this contract, without deciding that the form of it was sufficient to bind her. We will also assume as true the material averments of the answer of the executor, to which the demurrer was sustained, although there is really no substantial difference in the pleadings concerning the facts necessary To the same effect is Niles v. Niles, 143 to a decision of this question. We may state Ky. 94, 136 S. W. 127. "The present statute with respect to the contractual and property rights of the husband and wife * * * removes from the wife all the disabilities of coverture imposed by the common law in the matter of contracting with other persons, the husband included, subject to the restrictions specified in the statute, none of which prevent her from becoming indebted to the husband or the husband to her." Adopting the construction of the statute laid down in the Coleman Case, it would seem to follow that, where the wife and the husband freely and voluntarily enter into a contract by which the wife, uninfluenced by fraud or deceit, in consideration of certain property conveyed or devised to her by the husband, agrees to relinquish her dowable and distributable share in his estate under the statute, it will be binding upon the wife. There appears to be no sound reason why the wife, who is empowered apparently without limitation to contract with her husband, may not enter into a valid contract like this. Nor does this construction conflict with the ruling in Smith v. Johns, 154 Ky. 274, 157 S. W. 21, holding that the statute of limitation does not apply to contracts of married women. Section 2136 of the statute, relating to jointure, was enacted by the Legislature many years before section 2128, removing the common-law restraints on the right of married women to enter into contracts, and we think the latter section should be construed as repealing by necessary implication it as virtually admitted that Judge Redwine owned an estate of the value of about $90,000, practically all of which was in money, evidences of debt and personal property. As proof of the fact that the wife was coerced by her husband into the execution of this contract, and that it was not freely and voluntarily entered into upon her part, we find it averred in the answer, and have no doubt it was so averred because it could and would have been proven, that: "At the time of the death of D. B. Redwine he was the owner of a very considerable estate, notes, and other securities producing income; comprised largely of money, interest-bearing that for some time before his death he had been afflicted with a deadly disease known as Brights Disease of the kidneys; that he was desirous of leaving his estate to his two infant daughters, the defendants, Elsie Redwine and Isabelle Redwine; * that but for the execution and delivery of said writing_by_the plaintiff, and the reliance of the said D. B. Redwine upon same, he would have given his property absolutely in his lifetime to his said infant children, the infant defendants herein, which he could have done, as all of his personal estate * was susceptible of manual delivery; * * * that plaintiff by her agreement to accept the two houses and lots and $8,000 in money induced the said D. B. Redwine to believe that she would be satisfied with same as her distributable share of his estate, and prevented him from giving said property absolutely to the children in his lifetime, which he would have done but for her written proposition to accept the property named in lieu of her claims against his estate.' We then have a state of case in which the wife, who under the statute of descent and distribution would be entitled to an absolute estate in one-half of the personalty of her husband, is induced by his threats to so dispose of it so that she would get little, if anything, agreeing to accept property of the value of $15,000 in place of property of the value of $45,000, and this, too, within a few days of his death, and at a time when both of them knew that the fatal disease with which he was afflicted might terminate in his death at any moment. Under these facts and circumstances, we think it clear that there was no sufficient consideration for this contract; on the part of the wife that it was not freely and voluntarily executed by her, and it should be set aside and she be given her share of the estate under the statute. It is indispensable to the validity of contracts like this that the utmost fairness and good faith should be observed by the husband, and that the consideration moving to the wife should be of such value as to reasonably compensate her for what she agreed to surrender. The law has fixed the share of the husband's estate to which the wife shall be entitled at his death, and obviously when the wife agrees, on the verge of her husband's death, to take at his death property of greatly less value than she would receive at his death if no contract had been made, the presumption is that the contract was not fairly obtained, and the wife should not be bound by it. In Coleman v. Coleman, 142 Ky. 36, 133 S. W. 1003, the court said: "Contracts between husband and wife will be closely scrutinized by the courts, and, in so far as they impose liability upon the wife, proof of their genuineness and freedom from coercion must be clear and convincing to authorize their enforcement. This is so because, notwithstanding the contractual freedom conferred upon the wife by the statute, she is yet more or less under the dominion of the husband, by virtue of the closeness and tenderness of the marital relation, and he, if he be an unscrupulous or designing person, may use the advantage thus afforded him to unduly influence and impose upon the wife; therefore she is entitled to be protected against such machinations, by the courts, where judicial interference in her behalf is authorized by the proof." In Evans v. Evans, 93 Ky. 510, 20 S. W. 605, 14 Ky. Law Rep. 628, in speaking of contracts between husband and wife, it is said: "In other words, some contracts between them are enforced in equity, not because of the agreement merely, but because the transaction, being just and reasonable, the wife has no equity outside of it." In Bohannon v. Travis, 94 Ky. 59, 21 S. W. 354, 14 Ky. Law Rep. 912, the court said: "But a contract between husband and wife will not be enforced in equity in favor of either, unless it is fair and just, founded on a valuable consideration, and reasonably certain as to its stipulations and the circumstances under which it was made." To the same effect is Tilton v. Tilton, 130 Ky. 281, 113 S. W. 134, 132 Am. St. Rep. 359. In Egger v. Egger, 225 Mo. 116, 123 S. W. 928, 135 Am. St. Rep. 566, in an elaborate opinion, the court held, in substance, in a case similar to this, that a postnuptial agreement by the wife to release her prospective distributive share in his estate, based on his promise to make a will giving her much less than she would be entitled to in the absence of a will, was without consideration and not binding on her after his death. Many cases supporting these general rules may be found, but we believe there is no disagreement among the authorities that contracts such as this will not be enforced against the widow claiming her distributable share under the statute unless they are perfectly fair, based on a consideration giving to the widow property of substantially the same value that she would take under the statute. It is difficult to understand upon what ground it can be said that the contract made by the wife with her husband on his deathbed, under which she takes much less at his death than the law would give her at his death, can be upheld against her protest, because it seems clear that under the circumstances she did not receive any sufficient consideration to induce her to surrender that which she would shortly get. [4] It is further said that the widow was estopped to claim her share in her husband's estate by reason of the fact that if she had not entered into the contract he would have disposed of his property in such a manner as to deprive her of virtually any interest in it. Stating this in another way, the proposition is that because the husband threatened to practice a fraud on his wife and she believed he could and would do it, therefore she is to be estopped from claiming what the law would give her, because under fear that she might get nothing, she surrendered a large estate that the law would have cast upon her. The mere statement of this, proposition is enough, as it seems to us, to show that there is no merit in the plea of estoppel. [5] It is further argued that as the contract was entered into in Florida, the laws of that state must control its validity and effect. We have not deemed it necessary to look into the laws of Florida to ascertain in what particular they differ from the laws of this state with respect to the matter under consideration, as we think the contract is controlled by the laws of this state. The parties were only in Florida on a temporary visit. Their home was in Kentucky, and to this state they shortly expected to retur Neither the contract nor the will were intended to have any effect in Florida. The estate of Judge Redwine was here, and here it was contemplated by all parties the papers would | 5. BANKS AND BANKING ( 49*)—LIABILITY OF STOCKHOLDERS become operative and the contract be perFRAUDULENT TRANSFERS. formed. Under circumstances like these the law of the place where the contract is to be and must be performed, and not the place where it is made, controls its validity and effect. Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104; Goddin v. Shipley, 7 B. Mon. 575; Stevens v. Gregg, 89 Ky. 461, 12 S. W. 775, 11 Ky. Law Rep. 686; Pittsburg R. Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732. Upon the whole case we conclude that the judgment should be affirmed; and it is so ordered. ROBINSON-PETTIT CO. v. SAPP et al. (Court of Appeals of Kentucky. Oct. 22, 1914.) 1. BANKS AND BANKING (§ 49*)-LIABILITY OF STOCKHOLDERS SUFFICIENCY OF EVI DENCE. In an action to enforce the statutory liability of a stockholder in an insolvent state bank, evidence held sufficient to support a finding that a transfer of the stock to defendant was absolute and not to secure a debt. [Ed. Note.-For other cases, see Banks and Where a transferee of stock in a state bank held it for 18 months before the failure of the bank, sent officers to examine the condition of the bank, and made no complaint of the transfer not know that the bank was insolvent when he until after the failure, and the transferror did transferred the stock, but, on the contrary, both parties then supposed the stock was worth above par, though the bank in fact was insolfense to the enforcement of the statutory liavent, the transferee could not set up, as a debility of stockholders, that the transfer was fraudulent. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 71-812, 513, 534, 535; Dec. Dig. § 49.*1 Appeal from Circuit Court, Ohio County. Action by J. G. Sapp and others against the Robinson-Pettit Company. From a judgment for plaintiffs, defendant appeals. firmed. Af Barnes & Smith, of Hartford, for appellant. Ernest Woodward, of Hartford, for appellees. HOBSON, C. J. The Ohio County Bank Banking, Cent. Dig. §§ 71–811⁄2, 513, 534, 535; capital stock of $15,000. Z. Wayne Griffin was incorporated in the year 1909 with a Dec. Dig. § 49.*1 2. APPEAL AND ERROR ( 1009*)-REVIEW-held ten shares of the stock of the par value QUESTIONS OF FACT. of $1,000. Griffin fell in debt to the Robin A finding of the chancellor will not be dis-son-Pettit Company, and on August 13, 1909, turbed, where, on the whole record, the truth he transferred the stock to it, delivering to is doubtful. it the stock and the following writing: [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 3970-3978; Dec. Dig. § 1009.*1 3. BANKS AND BANKING ($ 48*)-LIABILITY OF STOCKHOLDER-EFFECT OF TRANSFER, Under Ky. St. § 545, providing that shares of stock shall be transferred on the books of the corporation in such manner as the bylaws may direct, and that every person becoming a stockholder by such transfer shall succeed to all the rights and liabilities of prior stockholders, section 546 providing that a book shall be kept by every corporation, in which shall be entered the name, address, etc., of each stockholder, and also all transfers of stock, and section 595 providing that the stockholders of each bank organized under that article shall be responsible for all contracts and liabilities of the bank to the extent of their stock at par, in addition to the amount of such stock, and that no transfer shall release any liability existing at the transfer, until a transfer of stock in a bank is properly registered on the books of the bank, creditors may look to the transferror or the transferee at their election, especially where the transferror was a bankrupt and the transferee neglected to have the transfer recorded for the purpose of avoiding liability. [Ed. Note.-For other cases, see Banks and Banking, Cert. Dig. §§ 69, 70; Dec. Dig. § 48.*] 4. BANKS AND BANKING (§ 48*)-LIABILITY OF STOCKHOLDER-EFFECT OF TRANSFER. Where either the transferror or the transferee of stock in a state bank has been compelled to pay any money on account of the statutory liability of stockholders, which the other in good faith should have paid, he may look to such other for repayment. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. $$ 69, 70; Dec. Dig. § 48.*1 "Know all men by these presents that I, Z. Wayne Griffin, for value received, have bargained, sold, assigned, and transferred, and by these presents do bargain, sell, assign, and transfer unto Robinson-Pettit Company 10 shares of stock, standing in my name on the books of the Ohio County Bank, Hartford, Ky., and do hereby constitute and appoint true and lawful attorney, irrevocable, for me transfer, and set over all or any part of said and in my name and stead, to sell, assign, stock; and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that my said attorney or his substitute or substitutes shall lawfully do by virtue hereof. "In witness whereof, I have hereunto set my hand, the 13th day of August, 1909. "Z. Wayne Griffin. "Witness: "J. Thos. Schorch. "Nelson B. Freedhouse." Subsequently the bank failed, and this action was brought against the Robinson-Pettit Company as a stockholder to enforce the double liability under section 595, Ky. St., which provides: der this article shall be individually responsible, "The stockholders of each bank organized unfor all contracts and liabilities of such bank to equally and ratably, and not one for the other, the extent of the amount of their stock at par value in addition to the amount of such stock; ate as a release of any such liability existing * and no transfer of stock shall operat the time of such transfer. * * The Robinson-Pettit Company defended the action, insisting: (1) That it only held the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes stock as a pledge to secure its debt; (2) that the stock had not been transferred to it on the books of the bank and had never been presented for transfer; (3) that the transfer of the stock to it was fraudulent. The circuit court gave judgment in favor of the plaintiff. The defendant appeals. [1, 2] 1. The testimony for the RobinsonPettit Company by three of its officers is to the effect that the stock was turned over to it by Griffin simply to secure its debt, and that they were to sell the stock and account to him for the proceeds. On the other hand, Griffin testifies that it was an absolute transfer; the company taking the stock at $1,000, its par value, and crediting him by this sum on his debt. In this he is sustained by the ledger of the Robinson-Pettit Company, a copy of the entries in the ledger having been filed in the action; and he is also sustained by the testimony of the officers of the bank. The stock, at the time it was transferred, had a book value of $1.20, and it was supposed to be worth something above par. Griffin went into bankruptcy after he had transferred the stock, and the RobinsonPettit Company, in proving up their claim against the bankrupt estate, credited it by $1,000 for this stock, making no mention that the stock was held as a pledge, or explanation about the credit. It thus took the chance of making what it could out of the stock, if sold above its par value. We give some weight to the finding of the chancellor on a question of fact; we do not disturb his finding where, on the whole record, the truth is doubtful; and, in view of the fact that the transfer is absolute on its face, we cannot disturb the chancellor's finding, supported, as it is, by the circumstances and the conduct of the Robinson-Pettit Company. stock, fails to have the transfer put upon the books to avoid any liability, the purpose of the statute would be entirely defeated, if the transferee were not held liable. In Cook on Corporations, § 260, the rule as to the liability of the transferror is thus stated: "The law is well settled that the transferror of stock is liable to corporate creditors on his statutory liability, up to the time of a registry would be if no sale and transfer of the cerof the transfer, to the same extent that he tificate had been made until the date of the registry. Until registry is made, corporate creditors may hold the transferror liable, as though he had not sold his stock. As to them the transfer will be deemed to have been made only at the date of the record thereof in the corporate books." Again in section 261 he says: "A purchaser of stock may be held liable to creditors upon the liability imposed by statute, although the transfer is not recorded." See, also, 10 Cyc. 717. Were the rule otherwise, the purpose of the statute would be entirely defeated. In imposing the double liability upon the stockholder, the aim of the statute is to secure the creditors of the corporation, and if the real stockholder could avoid liability simply by neglecting to have the transfer recorded on the books of the corporation, and allowing the stock to remain in the name of the bankrupt, the security intended for the creditors would be destroyed. To allow this would be to allow the real stockholder to profit by his own wrong, and by his failure to do what he ought to have done, to avoid liability put upon him by the statute. To effectuate the purpose of the statute, it must be held that, until the transfer is properly registered, the creditors of the corporation may look to the transferror, or at their election to the transferee; and that, as between the transferror [3, 4] 2. Sections 545 and 546, Ky. St., pro-and the transferee, either may in such a vide: "The shares of stock shall be transferred on the books of the corporation in such manner as the by-laws thereof may direct, and every person becoming a stockholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of prior stockholders." Section 545, Ky. St. "A book shall be kept by every corporation in its principal office, in which shall be entered the name, postoflice address and number of shares of stock held by each stockholder, and the time when each person became a stockholder; also all transfers of stock, stating when, the number of shares transferred, and by and to whom. * *" Section 546, Ky. St. * It appears from the evidence that the Robinson-Pettit Company had not had this stock transferred on the books of the bank, for the reason that it anticipated that there might be some trouble about the solvency of the bank, and it desired to avoid any liability on the stock. It is clear that under the statute the transferror remains liable to the creditors until he has the transfer put upon the books of the company; but where, as in this case, the transferror is bankrupt, and the transferee, who is the real owner of the case look to the other to repay to him any money he has to pay the creditor which the other in good faith should have paid. The real owner of the stock should sustain the loss, and, if the nominal owner of the stock has it to pay, he may in such a case recover from the real owner. But the creditor may look either to the transferror or the transferee. Under this rule, as the RobinsonPettit Company was the real owner of the stock, it was properly held liable to the creditors of the bank. [5] 3. The Robinson-Pettit Company held the stock in the bank for something like 18 months before the bank failed. It sent two officers to examine the condition of the bank, and it made no complaint of the transfer of the stock to it until after the bank failed. Griffin did not know that the bank was insolvent when he transferred the stock. On the contrary, both parties then supposed the stock was worth above par, although in fact the bank was insolvent. The case falls within the rule laid down in Reid v. Owensboro Savings Bank, 141 Ky. 444, 132 S. W. 1026; |