| Ky. Ct. App. | Jan 18, 1910
Opinion of the Court by
Reversing.
“In the name of G-od, Amen, I, Joseph B. Cox, of Spencer county, Kentucky, do make this my last will and testament as follows, to-wit:
“First — I desire my debts, if any, and funeral expenses paid.
“Second — I give to my wife, Ann B. Cox, all my estate of every kind to be hers forever, to use, manage find dispose of as she thinks proper.
‘Third — I appoint my wife Ann B. Cox, executrix of this will, and desire the court to permit her to execute bond without surety. I desire my nephew, James H. Beauchamp, my wife’s nephew, to assist her in managing- the estate.
“Witness my hand this 3rd of November, 1891.
“Joseph B. Cox.”
Ann B. Cox, the sole devisee under the will, thereafter qualified as executrix. She lived until the year 1899, when she died in Spencer county, Ky., leaving a last will and testament which was duly probated in the county court of that county. By her will she directed that all of her just debts and funeral ex
This action was instituted by said L. "W. Ross, as executor' of Ann B. Cox, and by Sue B. Shore and Emma Graham, against Sue C. Walker, for the purpose of settling the estate under the direction of the court. By amended petition the appellant, Central University of Kentucky, was made a party defendant, and called upon to set up any claim it had against the estate. Thereupon the appellant filed an answer, counterclaim, and cross-petition, setting up the note above referred to. It appears ■ from the answer, counterclaim, and cross-petition of appellant that the latter is the successor of Central University of Kentucky and of Centre College, and is. therefore entitled to sue upon the obligation in question. It is also charged that Joseph B. Cox owned property at the time of his death that was reasonably-worth $22,000; that he devised his entire estate to his wife, Ann B. Cox, subject to the payment of his debts; that the estate owned by Ann B. Co.x at the time of her death consisted of the estate that had been devised to her by her husband, Joseph B. Cox; that the realty which she devised was the same realty devised to her by her husband; and that the bank stock coming into the hands of her executor was -the same bank stock that was owned by Joseph B. Cox in his lifetime and devised to her in his will. It is further charged that both at the death of Joseph B. Cox and at the death of Ann B. Cox there was enough and more than
The rule is well settled that a promise may be conditional; that is, that the performance may be due, not immediately, but after the lapse of time or the happening of a future event. Such event may be of a certain or uncertain nature. 9 Cyc. p. 615. In the case of Mason, etc. v. Hughart, 9 B. Mon. 480" court="Ky. Ct. App." date_filed="1849-07-06" href="https://app.midpage.ai/document/mason-v-hughart-7129207?utm_source=webapp" opinion_id="7129207">9 B. Mon. 480, Hughart had become insolvent and had been discharged in bankruptcy from the payment of his debts. Thereafter he made a promise to Mason, etc., to pay the debt from which he had been discharged “when he should be able to do so.” This court said: “It is a promise dependent upon a very uncertain contingency, which may never occur, yet it is one which has been enforced. In the case' of Kingston v. Wharton, 2 Serg. & R. [Pa.] 208 [7 Am. Dec. 638], the promise was precisely of this character, and there was judgment for plaintiff.” In the recent case of Chism v. Barnes, 104 Ky. 317, 47 S.W. 232" court="Ky. Ct. App." date_filed="1898-09-23" href="https://app.midpage.ai/document/chism-v-barnes-7133909?utm_source=webapp" opinion_id="7133909">47 S. W. 232, 875, it was held that a promise to pay when able could be enforced, although made upon a contingency. We, therefore,
The only question, then, is whether or not the facts alleged show that all the conditions upon which the note was payable had been fulfilled. By the terms qf the note it was payable on the death of Joseph B. Cox if he survived his wife, but, if she survived him, upon her death; and in no event, however, was the contract of subscription to be a binding obligation unless there was enough of Joseph B. Cox’s estate not disposed of to meet the subscription. The lower court took the view that the expression in the note “not disposed of” meant “not disposed of in any manner whatever,” and he therefore concluded that, as Joseph B. Cox'had disposed of the property by will and his wife thereafter disposed of the same propeiYy by her will, there was not enough of Joseph B. Cox’s estate not disposed of to meet the subscription. We conclude, however, that the language of the note should be construed so as to give it effect, if possible. The record shows that Joseph B. Cox and his wife, Ann B. Cox, had no children. It is evident that he wanted to make a subscription in the cause of education. It will be presumed that he did not intend to do a vain thing. Nor did he intend to mislead and deceive those to whom the obligation was given. If he intended the obligation not to be valid
The judgment is therefore reversed and cause remanded for further proceedings consistent herewith.