119 Ky. 305 | Ky. Ct. App. | 1904
Lead Opinion
Opinion op the court by
Reversing.
The ninth clause of the will of Maria Bohlsen reads as follows : “If Joseph Sehroeder, brother of said George Schroeder, now in the Innatic asylum, shall be restored to his right mind, and shall be discharged as cured,, in that event I give him the sum of $2,000.00.” The devisee, Joseph Sehroeder, died in the asylum, without being restored to his right mind,
It is contended for appellees that as it was a condition precedent to the vesting of the bequest to Joseph Schroeder that he should be restored to his right mind and be discharged as cured, and as his death in the life of testatrix rendered it impossible for these conditions to be realized, the devise to him failed, and remained a part of the estate of the testatrix, and passed under the residuary clause of her will, as provided by section 4839 of the Kentucky Statutes of 1903, which reads as follows: “A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it'had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” On the other hand, it is claimed by the appellants that the devise to Joseph Schroeder failed solely by reason of his death, and passed, under the statute supra, as in case of intestacy.
Under the rule of common law as it existed in this State before the adoption of the Revised Statutes, a legacy which lapsed by the death of the legatee in the lifetime of the testator, or by the nonperformance of a condition precedent,
The only remaining question, therefore, to be decided is whether the will of testatrix contains any language which indicates an intention that in case the devises to Joseph Schroeder should fail for any purpose that it should go to
For the reasons indicated, the judgment is reversed and ' cause remanded for proceedings consistent with this opinion.
Rehearing
Response on rehearing by
In the petition for rehearing counsel insist that the court did not. correctly state, in the opinion the ground on which an affirmance of the judgment was asked; that their position was not that this was a devise that failed, hut that their position was that the conditions precedent named in the ninth clause of the will gave only the potential possibility of a legacy arising thereunder; and that these conditions having not been fulfilled, there was never any such status-at law under this clause as constituted a legacy in fact. In other words, they say that the clause of the will as to Joseph Schroeder made a conditional gift, depending for its ripening into a legacy upon conditions precedent that had to happen before it could have any existence as a legacy, and that, therefore, the twelfth or residuary clause of the will became effective just as if the ninth clause had never had a place in the instrument, when Joseph' Schroeder died before the testatrix without being restored to his right mind. We so under
Petition overruled.