119 Ky. 684 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
In December, 1896, Greenberry Bright died, domiciled in Lincoln county, testate, and after his death his will was duly admitted to probate. This will bears date of July 13, 1895, and contains, among others, these provisions; “I will and bequeath to my daughter, Kate Swinebroad, $1,000 in addi
The appellant brought this action seeking to recover the legacy above. To this action appellees, the executors, answered and pleaded that after the date of the will the testator had given to appellant $1,000, and that this operated to satisfy and adeem the legacy. To this answer a demurrer was entered and overruled. Appellant’s contention on the demurrer is that the answer should have alleged that the testator, at the time of the gift or advancement of $1,000 intended to satisfy and adeem the legacy. Upon the demurrer being overruled, appellant filed a reply, in which she alleged that at the time of the gift or advancement the testator did not intend to adeem or satisfy the devise in the will. Upon this issue thus presented the court placed the burden on appellant, and of this ruling complaint is made.
The case was tried before the court without a jury, and he adjudged that appellant had failed to make out her cause of action and dismissed her petition, hence this appeal. The real question in the case arises on the demurrer to the answer. If the answer is sufficient and appellant should allege that the testator did not intend to satisfy the devise, then she should be required to sustain her case to prove, that fact. On the other hand, if it is necessary for the appellees (executors) to allege that the testator did intend that the gift or advancement should satisfy or operate to adeem the devise, then the burden of proof would be on them. The trial court was entirely consistent in his rulings, for if there was error in passing on the demurrer, the same error was repeated on
Section 4840, Kentucky Statutes, which was also in the the question of burden of proof.
The first clause of this statute does not affect the case because appellant is a child of the testator, and that clause puts all persons on an equality with the child of a testator, but does not declare the rights of a child.
After having placed all legatees on the same footing, the statute declares that a provision for or advancement to a legatee, whether child or not, shall be deemed a satisfaction in whole or in part of a devise contained in a previous will, in all cases in which it shall appear from parol or other evidence to have been so intended. The rule of the common law as recognized by this court in Highbaugh’s Ex’or v. Brunk, a Ky. Law Rep., 175, is thus stated: “At common law,, a gift by the testator during his lifetime, of a portion equal to or exceeding the legacy was a satisfaction of the legacy . ... it being only necessary that the provision should be cjusdem generis.”
The provision of the statute, supra, changed the rule of the common law so as to make the rule as to children apply' to all legatees, and we think it also changed the rule as to the presumption of the fact of satisfaction or ademptionThe rule of common law that the gift would satisfy a legacy was but a presumption of a fact and might be rebutted by evidence, and the real intention of the testator shown to have been otherwise. If this rule of the common law was to be left in force, the second clause of the statute need not have
We are of the opinion that the purpose and intent of the statute was to change the common law rule of presumption as to satisfaction of the devise, so that no such gift, advancement to or provision for any person may be shown by parol or other evidence to have been intended as a satisfaction, and that, in the absence of proof on the subject, the provisions of the will which speak’ as of date of the death will prevail and the devise will hold good.
This question was before the court in the case of Duncan’s Trustee v. Clay, etc,, 13 Bush, 48, and it was there held as we understand the opinion, that parties claiming the advancement to be a satisfaction of a legacy should aver that such was the intention of the testator.
The court, by Chief Justice Lindsay, said: “It is not specifically averred in the cross petition of Kennedy and wife that the testator intended to satisfy in part the devise to Duncan by the gifts in question. ... It is also alleged that the testator intended the $50,000 to be a provision for and an advancement to his five devisees and as their portion or settlement for life, and as satisfaction in part of the devises to them contained in the then existing will. . . . But treating the averments as sufficient in law, they are denied by Duncan in his reply, and a careful and laborious examination of the extended record before us has failed to disclose ‘parol or other evidence’ sufficient to make it reasonably appear that the gift was intended as a satisfaction in whole or in part of the devise to Duncan.”
For the reason indicated the judgment is reversed .and ■cause remanded for proceedings consistent herewith.
