Schroeder v. Bohlsen , 119 Ky. 305 ( 1904 )

Opinion op the court by

CHIEF JUSTICE BURNAM

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, before the death of testatrix; and, the devise having been thus defeated, we are asked to decide whether it passed under the residuary clause of her will, which 'reads as follows: “I also give, devise and bequeath to said Abell Bohlsen all the remainder of my estate, real or personal, of every description whatever” — or passed as in case of intestacy under section 4843 of the Kentucky Statutes of 1903, which reads as follows: “Unless a contrary intention shall appear by the will, such real or personal estate, or interest therein, as shall be comprised in any devise in such will which shall fail or be void or otherwise incapable of taking effect, shall not be included in the residuai*y devise contained in such will, but shall pass as in case of intestacy.”

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, passed into and became a part of the residuary legatee, unless a contrary intention appeared on the face of the will; but it devolved upon such legatee to show that such lapse, had occurred, in order to establish his right as legatee. See Maddox v. Allen, 58 Ky., 495. But this rule of the common law was changed in this State by the adoption of the Revised Statutes in 1852, by which it was provided that all legacies which were void or failed, or were incapable of taking effect for any reason, should not go to the residuary legatee, as under the rule of the common law, but should pass as in case of intestacy, unless a contrary intention should appear by the will, and since 1854 this has been the rule as to lapsed devises in this State. The statute was first considered in Cunningham’s Devisees v. Cunningham’s Heirs, 57 Ky., 19, 68 Am. Dec., 718. The will in that case was dated in February, 1851, and the testator • died in 1853. The will bequeathed to the wife one-third of the personal estate, and the other two-third® to residuary legatees. The bequest lapsed because of her death before testator. It was held that the property bequeathed to the wife becariie, under the common law rule then in force, a part of the residuum, and passed to the residuary devisees. On this question, Judge Simpson said: “In’order to determine this question, it will be necessary to decide whether the construction and legal effect of the will are to be governed by the Revised Statutes or by the pre-existing law. The will is dated February, 1851, and the testator died in 1853. It was made before the Revised Statutes took effect, and, by section 26 of the chapter on ‘Wills’ (chapter 106, p. 697), it is expressly declared that the preceding sections of that chapter shall not extend to any will made before the chapter takes effect, but the validity and effect of such will shall be determined by the laws previously in force. Section 20 of that chapter is the one relied upon to sustain the proposition that the estate devised to the testator’s wife is not included in the residuary devise, but passed as in case of intestacy. And it is contended that this section has no operation on the validity and effect of a will, but only on its construction, and is not, therefore, embraced by the provision contained in section 26. It is sufficient answer to this argument to say that the effect of a will must, in a great measure, depend on its construction, and therefore that any law which changes a rule of construction that applies to and governs any of its provisions does, to -that extent, determine the legal effect, of the will. The object and design of section 20, however, was not merely to fix a rule of construction, hut it was to alter the legal effect of a residuary devise, so that where a legacy should lapse it should not belong, as heretofore, to the general residuary devisee, but should pass as in case of intestacy.” Prior to the adoption of the. Revised Statutes, • the general residuary legatee was entitled, in that character, to whatever personal estate might fall into the residue, after making the will by lapse, invalidity, or other accident. See Williams on Executors, 1250,* 4 Kent’s Commentaries, 541; 1 Jarman on Wills, 304. Other sections of this statute were fully and carefully considered in Dunlap v. Schreve’s Ex’rs, 63 Ky., 336, and Chenault’s Guardian v. Chenault’s Ex’rs, 88 Ky., 88, 10 R., 840, 11 S. W., 424. And in these cases it was held that the intention of the statute was to reverse the common-law rule as to survivorship, and to substitute the heirs at law to the residuary devisee where there were descendants of testator whose legacies or devises had lapsed.

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 the residuary devisee, rather than under the statute. The will itself contains no provision for such a contingency, and there is no bequest over. If testatrix had died before Joseph Schroeder, it would have been "the duty of her executor to have' set aside this' bequest for the benefit of the devisee, and the residuary legatee would have been limited to the surplus estate after payment of debts, cost of administration, and the various legacies, including the $2,000 to Joseph Schroeder. As there is in the will nothing which indicates that the bequest in the ninth clause should constitute a part of the residue, we are of the opinion that it passed under the provision of the statute as in case of intestacy.

For the reasons indicated, the judgment is reversed and ' cause remanded for proceedings consistent with this opinion.