12 Ky. Op. 116 | Ky. Ct. App. | 1883
Opinion by
The doctrine that one can not claim under and against a will is too well settled to admit of controversy, but we can not see how it is to be applied to the facts of this case, nor can the devise be construed as a satisfaction of the indebtedness to the plaintiff by the intestate. The note is for $300, and the devise to the appellant of $100 is for the care and attention given by the appellant to the devisor. The devise is one-third less than the debt claimed, and there is nothing inconsistent in her acceptance of a devise for $100 and then claiming the debt of $300 due by the note. There is nothing unreasonable in the testator’s being willing to give the appellant something in addition to this debt, and particularly when the relation between the two is considered. II Roper on Legacies (2 Am. ed.) 1030, says “that where the legacy is of less amount than the debt, it shall not be deemed a part payment or satisfaction.” Nor
Judgment reversed and cause remanded for further proceedings consistent with this opinion.