117 Ky. 962 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
%
James F. Irvin, a resident of Louisville, died in March, 1883, leaving surviving him his widow, Florence Irvin, and one son, Guy F. Irvin, an infant. He left a large estate in the hands of the trustees for the benefit of hi's wife and son. The son died in 1895, intestate and unmarried. His will provided, in this contingency, that his wife should have the entire net income of his estate during her life, with the power to dispose of the entire estate in the event she failed to pjarry again and have children. On the 8th of January, 1896, Mrs. Irvin executed a will, in which she bequeathed to the following persons the sums set opposite their respective names:
Louisville Presbyterian Theological- Seminary... $ 10 000
Louisville Presbyterian Orphanage ............. 10 000
Charles R. Hemphill .........■................. 15 000
Irvin Lindenberger ............................ 10 000
Philip T. Chinn ............................... 3 000
Total legacies to petitioners ...............$ 48 000
Also:
Belle C. McYey ..............................$ 15 000
Second Presbyterian Church ................... 10 000
Polytechnic Society of Kentucky ............... 10 000
Young Men’s Christian Association .......... 10 000
John Norton Memorial Infirmary............... 10 000
Anna Foster ............."•.................. 8 000
Home of the Innocents......................... 5 000
*966 St. James’ Association, etc...................... $ 1 000
Rodman Grubbs ...................;........... 15 000
Cloteal B. Botto ............................. 15 000
Wm. M. Botto ............................... 85 000
Jane Ballard for lif,e ................. $ 6 000
Mary Costello for life.................. 12 000
Jemima Johnson for life .............. 12 000
Jane Jackson for life ................. 12 000
Alex McHarry for life ................ 12 000
54 000
Total legacies to others ...................$188 000
Total legacies under original will----'............ 236 000
On the 30th of June, 1897, she executed a codicil, and on the following day, July 1, 1897, was married to William M. Botto, a young man many years her junior — about the age and an intimate friend of her dead son. On the 23d of April, 1898, and the 15th of January, 1900, she executed two additional codicils, the effect of which was to make a radical change in the disposition of her estate from that made in her original will. By these codicils the following legacies were revoked:
Louisville Presbyterian Theological Seminary .... $10 000 Polytechnic Society of Kentucky.............. 10 000 Young Men’s Christian Association.............• 10 000 Philip T. Chinn .............................. 3 000 Total legacies revoked .................... $33 000
The following legacies were reduced in the amounts, to wit':
$15 000 to Charles R. Hemphill reduced to......$ 5 000
10 000 to Irvin Lindenberger reduced to....... 5 000
*967 $10 000 to Louisville Presbyterian Orphanage reduced to ............................... $5 000
10 000 to Second Presbyterian Church reduced to 5 000
10 000 to John N. Norton Memorial Infirmary reduced to .........’..................... 5 000
15 000 to Belle O. McVey reduced to............ 1 000
12 000 to Mary Costello reduced to............. 1 000
$82 000 of legacies being reduced to............. $27 000 ■
—a reduction of $55 000.
■The following legacies were given:
Dr.-W. O. Roberts ......................'......$ 5 000
Newsboys’ Home ..,....... 10 000
Children’s Free Hospital ....................... 5 000
Cloteal B. Botto, trustee for her niece Florence I.
Harrison ...................... 5 000
New legacies given .........................$25 000
—While the legacies to her husband, Wm. M. Botto, and his mother, Cloteal B. Botto, were increased from approximately $50,000 to approximately'$150,000, and the legacies to the Bottos and to some others were by the codicils made preferred devises. Mrs. Florence Irvin Botto died on the 12th of February, 1900, leaving an estate estimated to be worth about $200,000. The original will and the three codicils were duly probated on the 7th of March, 1900, and on the following day the Fidelity Trust & Safety Yault Company qualified as her executor. On the 30th of March thereafter, Hugh Irvin and some of the heirs at law of James F. Irvin prosecuted an ap: peal to the Jefferson circuit court from the order of the county court probating the will; and the Louisville Presbyterian Seminary, the Louisville Presbyterian Orphan
It is conceded by the demurrer that, if the codicils had stood, none of the legatees named in the original will would have received any substantial benefits therefrom, but that the whole estate left by testatrix would have been absorbed in the payment of the costs and expenses and the preferred devises made to thé Bottos in the rejected codicils. The result of the contest made by appellants was to recover for the common benefit of the legatees under the original will a fund sufficient to pay between sixty per cent, and seventy per cent, of such devises. If the cost of this contest, including attorney’s fees, is thrown upon the contesting legatees, they would receive a much smaller pro rata than their co-legatees, who were the equal recipients of the benefits resulting from such contest. It was to meet this state of case that section 489
For reasons indicated, the judgment is reversed, and the cause remanded, with instructions to overrule the demur