99 Ky. 317 | Ky. Ct. App. | 1896
delivered the opinion oe the court.
By the will of John P. Morton the net income of his entire estate was to go to his wife so long as she lived. Upon her death the estate was to be distributed as follows: (Item 4.) To J. H. Morton Morris, $5,000; Ellen M. Goodloe, $3,000; Mary Belle Griswold, $1,000; Morton Morris, Jr., $1,00'' Morton Griswold, $1,000, and Margaret M. Becker, $500.
Then follows a clause giving to the appellant, a charitable institution in Louisville, the sum of $40,000. In a succeeding clause the sum of $10,000 is set apart for the construction of buildings on the lot of the Orphanage of the Good Shepherd, where mechanical education might be furnished the inmates of the orphanage. This, however, was on condition that a like sum should be furnished' by others which was not done.
By another clause the testator provided that if there still remained a surplus, and enough for that purpose, the sum of $20,000 was to go to the appellant for investment for the use of the boys cared for at the Orphanage of.the Good Shepherd, and the income of which was to be paid them when they reached maturity, etc.
Then, after disposing of a fruit grove in Florida, to a number of persons, the last item of the will provided as follows: “After all the foregoing devises are'provided for in full, in the order named, and there yet remains a surplus from any and all sources, the same shall be divided into five equal parts, and one part each shall pass to the first five
The will was probated in the county court of Jefferson county in July, 1889, but was contested, and the mandate of this court affirming the judgment below establishing the will was entered in October, 1892. Pending this contest, however, the widow renounced the provisions of the will. This was done on March 12,1891.
By appropriate proceedings the interest of the widow has been allotted to her, the effect of which allotment, growing out of her renunciation of the will, has been to withdraw from the estate some fifty-odd thousand dollars. If the distribution of the remainder of the estate is now made the residuary legatees will get much less than if it is postponed until the widow’s death, the income of it in the meantime being set apart for their benefit.
The judgment below postponed the distribution until the death of Mrs. Morton unless in the meantime the accretions of the estate shall equal the amount withdrawn by her, in which event the distribution was to be made, giving the appellant the $60,000 without interest, and giving the residuary legatees — the appellees here — the entire balance. The correctness of this judgment is the sole question on this appeal.
The only reason we- conceive for the testator’s postponement of the distribution until the death of his widow was that she might be provided for, and when the reason for postponement ceased, as it did upon her renunciation, we can not see why those who were the chief objects of the testator’s bounty should be delayed in the enjoyment of their legacy.
While the amount of the residuary estate is lessened to the extent of the widow’s allotment, they can not complain
To the' extent that the testator intended to prefer the appellees or make it certain that they should get a part of his estate, he provided for them in item 4 of his will; as to whether they would.get any further estate, he left in uncertainty and indeed expressed a doubt as to whether there would be enough to pay the $20,000 mentioned in the will, and still further indicated a doubt in the last clause by basing the residuary devise on the questionable condition of there still remaining a surplus of the estate.
The general rule is well settled that a renunciation of the will by the widow under circumstances like the present has the effect of precipitating the maturity of the. legacies.
The rule is thus stated in In re Ferguson’s Estate (1890), 20 Atlantic Rep., 945 (Pa.): “It was held in Coover’s Appeal, 74 Pa. St., 143, that devises or bequests, subordinate to a life estate in the widow and contingent upon her death or payment of which is postponed until then, become presently payable upon her election to take under the intestate laws. As to its effect upon all claims under the will her election is equivalent to her death. This is the general rule, and if there are any exceptions they must depend on the ex.pression or unavoidable implication of a contrary intent ■of the testator.” And the opinion of the lower court in that case that, “as the residuary legatees would be disappointed in the amount coming to them, which would be diminished
We are aware that there are.exceptions to the rule, but the intention of the testator must prevail so far as it can be ascertained. That is higher than any equitable rule adopted to carry out what may seem to a court a more equal or just distribution of the estate.
There is no reason whatever, in this case to depart from the direct command of the testator to distribute this estate in the manner in which he directs it to be done. It might be different if an intention was apparent to benefit certainly the residuary legatees, and the bulk of the estate was expected to be left for them. In such event they, and not others, could be said to be the chief objects of the testator’s bounty, and they would be protected, not because it would be equitable or just, but because such was the intention of the testator.
The question remains, when shall the legacies begin to bear interest? We have seen that they became due upon the renunciation of the will by the widow, which was in March, 1891, but there was a contest over the will, and the executors. could not pay until that was settled. This was done in October, 1892, and then, for the first time, the payment could safely be made. It seems to us interest should be computed from the last-named date.
Judgment reversed for proceedings consistent with this opinion.
