Casey v. Pence

10 Ky. Op. 689, 1 Ky. L. Rptr. 278, 1880 Ky. LEXIS 319

Opinion

Opinion by

Judge Hines :

Whether the conveyance to appellants and the children was intended as a satisfaction or ademption of the legacy is to be determined from all the facts and circumstances surrounding the action. On the facts as they appear in this record we would not hesitate to say that the conveyance was intended as a satisfaction, or to be in lieu of the bequest; but what other evidence appellant might be able to produce to show that such was not the intention of the testator we are unable to determine, and as the reply denies that it was the intention of the testator to thus take away the bequest, and issue was formed upon that point, that should have gone to trial. Duncan’s Trustee v. Clay, 13 Bush 48.

The court erred in sustaining the demurrer to the reply, and for that reason the judgment is reversed and cause remanded for further proceedings.