108 Ky. 1 | Ky. Ct. App. | 1900
Opinion of the cotjkt by
Affirming.
By bis will made June 28, 1881, A. A. Cherry, of Warren county, devised his estate to his daughter, Mary Angeline Cherry; stating in the will that he raised and provided for all his other children as best he could, and desired that what was left after paying his debts and funeral expenses to go to her. The devisee gave birth to a bastard child, the appellee, Effie Mitchell, in March, 189.1, and a few days thereafter died. About two weeks later, on the 12th of April, 1891, the testator, A. A. Cherry, died, and the will above referred to was duly probated. On February 3, 1899, the appellee, by her statutory guardian, filed this suit to recover the testator’s estate of his heirs at law and their vendee. Section 4841 of the Kentucky Statutes provides: “If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate de.vised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.” The only question in the case is whether a bastard child comes within the meaning of this' provision. It is admitted that appellee, if a legitimate child, would have taken the estate devised to her mother; but it is insisted by the distinguished counsel for appellant that the word “issue,” in this statute, does not include an illegitimate child. In support of this contention we