71 Ky. 141 | Ky. Ct. App. | 1871
delivered the opinion op the court.
Peter Carlin left at liis death the following as his last will and testament: “ I give and bequeath to my wife Ann forever one half of all my estate, both real and personal. The residue I give to my kindred as the same would descend at law.”
After his death his wife Ann, as administratrix with the will annexed, filed her petition in the Spencer Circuit Court, alleging that the personal estate was insufficient to pay the debts, and asking for the sale of several small tracts of land for that purpose, and a partition of the remaining lands between the devisees. D. F. Carlin, one of the brothers of the devisor, as well as all the parties interested, were made defendants to this proceeding. He filed his answer, resisting a sale of certain real estate described in the petition, alleging that his brother Peter, in October, 1868, had sold him this part of his realty. The answer is made a cross-petition against the appellant and all the co-defendants of the appellee in the original action.
The writing filed by appellee is as follows: “Know all men by these presents that I, Peter Carlin, of the county of Spencer and state of Kentucky, have this day sold, and by these presents do sell, to David F. Carlin, for the purpose of securing to him for his use and benefit after my death of a certain tract or parcel of land lying in the county of Spencer, known as the Vandyke mill property, with all the appurtenances; also one
“Peter Carlin.”
The appellant pleads non est factum to this paper, under which the appellee asserts his claim to the property; and upon this issue much proof has been taken. Six or eight witnesses on the part of appellant were examined, who speak of their familiarity with the handwriting of Peter Carlin, and state that in their opinion the name of Peter Carlin to the instrument of October, 1868, was not written by him, and is not his genuine signature. On cross-examination these witnesses are shown various instruments of writing purporting to have been executed by Peter Carlin, and they express so many conflicting opinions in regard to his writing and signa
It is also insisted that this writing is testamentary in its character, and that its execution should be established as in case of a will, or by incontestible evidence as the act and deed of the donor. This writing by its terms invested the appellee, I). P. Carlin, with the equitable title to the property described in it, subject to all the charges and incumbrances made upon the same by the various provisions therein contained. The appellee, I). P. Carlin, entered upon the immediate enjoyment of its use, with the right to possess the property and do with it as he thought best. He was compelled to pay the estate of his brother various sums of ■ money he had advanced upon this property, and any other sums he might thereafter advance,
Appellee had possession of this property, as well as this writing executed and delivered to him by his brother, and no attempt at revocation by the brother could have affected the rights of appellee under it. It was a sale of the property to appellee for the consideration expressed in the instrument. A deed or bond made after a will is written might destroy the provisions of the will, but a will can not affect the rights of a party acquired under a deed or bond before the will takes effect. The will does not, in our opinion, revoke the writing of October, 1868, nor does this writing deprive him of an equal interest with his brothers and sisters in the property devised to them. Such a construction of the will, in our opinion, would defeat the plain intention of the devisor. He knew at the time he executed his will that he had previously given or sold to his brother that part of his real estate included in the writing of October, 1868. Appellee, being a brother, is as certainly embraced by the terms of the will as if his name had been inserted therein. To exclude appellee from the provisions of the will would be to decide that the word kindred did not include his brother; that is, that he wanted all of his kindred to have the estate except his brother, D. F. Carlin.
We have no doubt but what at the time Peter Carlin sold his brother the real estate that it was his intention not to give him any more of his property; but he doubtless changed his mind prior to the execution of the will, and intended that his brother should have an equal portion under the will with the rest of the kindred. He was a man of intelligence and business habits, and the best evidence of his intention to make his brother one of his devisees is the fact of his having failed to exclude him as a devisee by that instrument.
"We see no reason why the heirs or devisees under the will of Peter Carlin should account for what they received under the will of John Carlin.
The case is affirmed both on the original and cross-appeal, and the motion to dismiss the appeal at the cost of the administrator is overruled.