93 Ky. 498 | Ky. Ct. App. | 1892
delivered the opinion op the court.
The appellants and appellees are the children and heirs at law of Thompson Phillips, who died partially testate,. 1 and leaving a large estate undisposed of by gift or devise..
There is no doubt that there is no implied devise to the appellees, and that Thompson Phillips died intestate as to all that property not directly willed or conveyed by deed. So, the question is, do the appellants take under the statute of descents and distribution as co-inheritors of the undevised estate, or do the will and deeds exclude them as co-inheritors of the undevised estate. In the case of Clarkson v. Clarkson, 8 Bush, 658, it is held that in case of partial testacy, mere words of exclusion are not sufficient to deprive the beneficiary of the right to inherit his portion of the estate undisposed of by the will, because as to that estate the law casts the descent upon him, •not the testator, and he can only be deprived of his inheritance by the testator’s disposing of his entire estate. It is true, under-the circumstances of the Clarkson case,
The judgment is reversed and cause remanded, &c.