35 Ky. 345 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
James Parish, who died early in the year 1830, leaving a widow by whom he had no children, and also leaving six children by a former marriage, made a will, admitted to record in April, 1830, by which he directed his execu
Mrs. Parish having, according .to the statute of this State on that subject, renounced the provision made for her by the will, the County Court allotted to .her .one third of the personal estate and of the land .and slaves. And thereupon, the executor, being of the .opinion that the legacy in remainder to Mary Brand, had been destroyed by the widow’s renunciation, sold, for about one hundred and fifty dollars, all the .perishable property embraced in it, excepting Harry, whom he retained in his .own hands; and, after Mrs. Parish’s death, in December, 1834, he refused to deliver to Mary Brand, any portion of the legacy bequeathed to .her, insisting, as he doubtless believed, that she was entitled to nothing. Afterwards, in October, 1835, Henry H. Timberlake, who had, in the mean time, intermarried with Mary Brand, whilst she was a minor, brought this suit in chancery, in his own name and in that of his wife, against the executor, William Woods, for enforcing their claim to the legacy. The executor, in his answer, resisted the prayer for relief, on the plea that, by the renunciation by the legatee of the particular estate, the legacy in remainder had been destroyed. And the Circuit Court, upon the hearing of the case on the bill and answer, and some depositions tending, if admissible, to prove, in some degree, that the whole legacy to the widow and her granddaughter, who was no blood relation of the testator, was intended as a substitute for the widow’s legal interest, as widow, dismissed the bill absolutely; and this appeal brings up, for revision, that decree.
The fact that the particular estate was not accepted, and therefore did not take effect, did not, per se, destroy the remainder, as it might have done, had the document of title been a deed instead of a will; for, not only does the intention generally, prevail in a will, but an executory interest may be created by it, without the intervention or support of an intermediate estate. And therefore, as every distinct legacy or devise, without any expressed motive or object, will be deemed, in the absence of any intimation to the contrary, in the will, a bounty to each several devisee or legatee, the non-acceptance or forfeiture by one, cannot destroy the separate right of another beneficiary, but would have the effect only of hastening the enjoyment by the latter, when his vested interest was made—not to depend upon the former, but only to succeed it.
Nor will the well established rules prescribed for interpreting testamentary provisions, allow the deduction, from the face of the will in this case, that the legacy to Mrs. Timberlake was given as a consideration in lieu of her'gran'd-mother’s legal rights,as survivor of the testator.
Although the testator only declared that the slave, money and other chattels bequeathed to her grand-mother for life, shall “descend to herself, nevertheless, the legal interpretation of that declaration is, that it was legatory, and therefore, that she would be entitled to a vested remainder as a legatee, and not to a contingent interest as a successor of the testator’s wife, whose interest was limited by the will to her own life. The language of the will imports that the testator intended that, after his wife’s death, Mary Brand should be entitled to the-property bequeathed to the former for life, and, of course, all her right to the remainder being derived from his bounty, he must have used the word “descend” synonimously with pass, or other word of purchase from him
We are bound by the facts and the inflexible rules of construction, to presume that, independently of her grand-mother’s acceptance or renunciation of the life estate bequeathed to her, Mary Brand was intended to be a legatee.
And we are not authorized to infer, from any thing in the will, that the testator would have given her nothing, had he known that his wife would renounce the intermediate legacy, or that he would have bequeathed less in value than he did. Nor does there appear to be any legal foundation for a presumption that he intended that her interest should be contingent and subject to destruction or impairment by the will or the act of her grandmother.
A destruction of the life estate could not defeat the remainder vested by the will; and this the testator' may be presumed to have known.
Doubtless, he supposed that his wife would accept the legacy to herself, and would claim nothing else. But he knew that she had a perfect right to elect between that and her legal right as his survivor. And, nevertheless, his will does not intimate that the grand-daughter’s legacy should depend on that election.
The legacy to the grand-daughter, like that to the wife and the children, is distinct, independent, and unconditional.
According to the common law, even the legacy to the wife should not be construed as having been given in lieu of her potential interest as widow; for it seems to be now well settled by authority, that such a constructive
The leading case on this point is that of Lawrence vs. Lawrence, 2 Vernon, 365; in which, Lord Somers having decreed that a personal bequest and a devise also of some land to’ the testator’s wife — the residue of his estate being devised to his son — should be construed to have been substituted for her dower, his opinion was reversed by Lord Keeper Wright; who was afterwards sustained by the concurrent opinion, upon the same will, given by Lord Chancellor Cowper, and affirmed by the House of Lords, as reported in 1 Bro. P. C. 591. And the principle of those decisions has since been often reaffirmed, in England and America; and was expressly recognized by Chancellor Kent, in the case of Adsit vs. Adsit, 2 Johnson’s Chy. Rep. 448. According to those cases, it appears that, a mere devise of the whole of the testator’s remaining estate to others, or to be sold for their benefit, and even for that of the wife also, is not so inconsistent with her legal right to dower, as to authorize the deduction that the provision made for her by the will was intended as a substitute for her dower, but that the other devisees, or the purchaser under a sale directed by the will, would take subject to her incidental incumbrance of dower right, and that the devise should, of course, be understood as being intended by the testator to be thus taken cum onore.
Now, when tested by any principle which has been authoritatively established, the will, in this case, contains nothing which would authorize the judicial conclusion, that the legacy to Mrs. Parish was intended to be a bar to her right to dower in the testator’s land.
But, although she might have been entitled to dower in the land, without renouncing the legacy, the twenty fourth section of a statute of 1796, of this State, re
The only remaining question is, whether the extraneous facts, stated by witnesses, for the purpose of evincing an intention different from that imported by the will itself, are admissible.
Upon this point the most liberal rule which can claim’ the countenance of respectable authority, is that suggested by Lord Thurlow in Coote vs. Boyd, 2 Bro. Chy. Rep. 521, and that is, that parol and extrinsic evidence may be admitted to rebut a consequential equity, or an equitable presumption, or even that constructive effect of a will, or other document, which arises altogether from presumption.
But if this doctrine be admitted to be unexceptionable, it cannot, in our opinion, be applied, either avail-ably or appropriately, to this case. Here there is no-equitable consequence insisted on, as springing up under the will, and which, because it is a mere matter of equitable consideration and discretion, might be resisted by parol evidence inconsistent with its force in foro conscientice; nor is there either any equitable presumption, or
Whether, in an ordinary case, Mrs. Timberlake would have been entitled to her legacy as soon as her grandmother renounced her life estate, we do not consider it material now to determine. For if she might have had such an anticipated right when considered abstractly, still, as the property intended by the will for others, was
And, as all the legacies, except that of the slave Harry, were general, and should therefore abate pari passu, the appellants are entitled only to Harry and his profits since the death of Mrs. Parish, and to the residue of the value of their legacy after deducting from it the just amount for contribution, towards the widow’s thirds; and also, to legal interest from the time of her death.
Wherefore, it is decreed that the decree of the Circuit Court be reversed, and the cause remanded, for a decree according to this opinion.