92 Ky. 304 | Ky. Ct. App. | 1891
delivered the opinion op the court.
It appears that A. J. Tribble, husband, of the appellee, Elizabeth T. Tribble, executed, in 1875, his promissory note to the appellee, who was then his wife, for the sum of one thousand dollars, due and payable one day after-date. In 1887 A. J. Tribble made a will by which he directed that “all his just debts be paid.” He also willed to his wife, the appellee, all his personal property absolutely, and his real estate during her life, remainder to his niece, the appellant, subject to the charge of some special legacies, amounting to about $2,500. Not long after making the will said Tribble died and the will was probated.
The appellee, after the probate of the will, sued on the above-named note and sought to subject the remainder interest of the appellant in said land to its payment. After the parties had pleaded to an issue, the appellant filed a second abended answer, by which it appears that a few months before the death of A. J. Tribble the appellee, while very sick and not expecting to recover from it, gave the note to her husband causa mortis; that the husband, within an hour after receiving the note, promised the appellant to will her additional property in land equal in value to the note, in consideration of the gift of the note causa mortis; that the appellee recovered
The lower court gave judgment on the note for its principal and interest subject to a credit of $595.00, the value of the personal property that the appellee received from the estate under the will; the court also subjected the remainder interest of the appellant to sale for the satisfaction of said judgment. Prom that judgment the appellant appeals, but the appellee does not take a cross appeal.
There is no doubt that the note was given to the appellee for money that belonged to her, the proceeds of her land, and that the husband was bound on the note. It is admitted that the gift was made causa mortis.
It is thoroughly settled that such gifts are made upon the implied conditions that “ if the donor recovers, or if the donee dies first, the gift shall be void,” and the donor is entitled to recover it at any time from the donee or his
The action of the court in crediting the note Avith the 'amount of the personal estate that the appellee received under the will was error; first, because as the value of the devise of personal estate to the appellee was not equal, at least, to the amount of his indebtedness to her, no presumption arises that the devise was to be in satisfaction of the indebtedness; second, if the amount of devise is less than the indebtedness no presumption arises of a satisfaction fro tanto; third, nor does the presumption of a satisfaction arise if the devise is of a different nature as to the subject matter from the indebtedness; hence, no presumption of satisfaction could arise from the devise of land to the appellee; fourth, as the testator directed in his will that his just debts should be paid, and as he was in a- condition to be both just and generous, and as the language of the will does not import payment, the legacy is to be regarded as a bounty and not as a satisfaction of the indebtedness. (Cloud and wife v. Clinkinbeard’s Ex’rs, 8 B. M., 398.) But as the appellee has not cross appealed, the judgment must be affirmed.
Judgment affirmed.