89 Ky. 17 | Ky. Ct. App. | 1889
delivered the opinion of the court.
The second clause of Joseph Enders’ will is as follows : “All the rest and residue of my*estate, real, personal and mixed, after the payment of my just debts and funeral expenses, I will, devise and bequeath to my dear wife, Candace J. Enders, to have, control, use and enjoy as her own absolute property, if she should survive me
The third clause of the will devises all of the testator’s estate to Candace Enders Slater, an adopted daughter, in case his wife does not survive him.
The fourth clause charges the estate, provided the-adopted daughter .takes it, with the payment of fifteen dollars per month, payable at the end of each month, to Ann Tasco, during her life, to be used toward her maintenance and support.
Candace Enders, the appellant, having survived the testator, and having qualified as executrix, and having refused to pay to the appellee said sum of fifteen dollars per month, the appellee instituted this suit to recover the same. The chancellor having adjudged that she was entitled to said sum, -according to the provisions of the will, Mrs. Enders has appealed to this court.
The case of Bohon v. Barrett’s Ex’r, 79 Ky., 378, does not control this case. While the will in that case apparently devised to Thomas L. Barrett the testator’s estate absolutely, and left it entirely discretionary with him as to whether or not he would give any of it to the testator’s adopted daughter, yet the-whole context of the will shows a contrary intention. It shows that
By the second clause of the will, Joseph Enders
If this clause establishes a precatory trust in favor of the appellee, it would be a difficult task for a testator to so express himself as not to create one, in expressing a mere wish to the object of his bounty, but leaving it entirely optional with the object of the bounty as to carrying out the wish.
It is contended, however, that the fourth clause-creates a trust and charge on the estate in the hands of the appellant. This is clearly a mistake, for the third clause gives the adopted daughter no interest whatever in the estate, except upon the condition that the testator’s -wife does not survive the testator, in which event she takes the estate ; and it is in the event that
The judgment is reversed, with directions to dismiss the appellee’s petition.