Purdy v. Purdy's Exrs.

1 Ky. Op. 462, 1867 Ky. LEXIS 295

• Court: Court of Appeals of Kentucky
• Decided: January 15, 1867
• Status: Published

Opinion

Opinion of-the Oour,t by

Judge Peters:

Stephen Purdy, sr., bequeathed to his grandchildren, Stephen Purdy, jr., Samuel Purdy, Elvira Purdy, John Purdy, and Jane Purdy, children of his son, John Purdy, deceased, the sum of $200 each, to be paid out of the last payment of the purchase money for his land, when they arrive at twenty-one years of age, respectively, and concludes the clause of his will, in which he makes the foregoing bequests, as follows:

“ But in no event shall the mother of said five last named children inherit, or have any part of said fund; but in case any one of the children dies before receiving the bequest, then those living shall have it in equal parts.”

This action was brought by Mary E. Purdy against B. E. and K. Purdy, executors of Stephen Purdy, sr., deceased, on the 3d of August, 1865. And she alleges in her petition, that she is the mother of Stephen Purdy, jr., to whom $200 were bequeathed by said testator, that her said son attained to the age of twenty-one years on the 27th of July, 1861, and on the 16th of August, 1861, be assigned to ber the money bequest of $200, bequeathed to him by bis grandfather, with the interest that bad accrued thereon. That the money for the sale of the land, directed by said testator to be sold to raise a fund to pay said legacy, with others, bad long since been collected, but that the executors bad refused to pay said legacy, and she, therefore, prayed judgment against them for the same.

Appellees filed their answer in which they admit all the allegations of the petition except the right of appellant to the legacy claimed, and they resist ber right to recover, because of the alleged inhibition in the will of Stephen Purdy, sr., before quoted, and upon the further ground that Stephen Purdy, jr., the legatee, bad departed this life before the institution of this suit, and that the legacy to him, upon bis death, passed to bis surviving brothers and sisters.

Tbe court below adjudged that as Stephen Purdy, jr., was dead, bis mother took nothing by bis assignment to ber, and dismissed ber petition with costs, from which she has appealed.

When deceased made the assignment to bis mother be bad an unquestioned right to bis legacy, and might have collected it, and given it to ber, or made any other disposition of it that seemed to him right or proper, and by the assignment of it to ber it was an appropriation of it by him, and was as effectual to invest ber with the right thereto as if be bad received the money and then handed it over to ber.

By the terms of the will this legacy was not due, and was not to be paid to the legatee until be arrived at twenty-one years of age, and if be died before that period it was to go to bis surviving brothers and sisters; but there is nothing in the will indicating an intention on the part of the testator that be should be restricted or controlled in any manner in the use be should make of it, after be bad attained to full age; if the testator bad intended to restrict him in the disposition of it, after that period, be would most probably have withheld from him the principal, and provided for the payment of the interest, or profits, over to him during bis mother’ life.

We, conclude, therefore, that, appellant, by tbe assignment of tbe legacy to ber by Stephen Purdy, jr., became entitled thereto, and tbe court below erred in dismissing ber petition.

Wherefore, tbe judgment is reversed, and tbe cause remanded with directions to render judgment for appellant against appellees for $200, the amount of the legacy bequeathed to Stephen Purdy, jr., by his grandfather, Stephen Purdy, sr., with interest from the 27th of July, 1861, the day on which he attained to twenty-one years of age, until paid, and her costs to be levied of assets, etc., and for further proceedings consistent with this opinion.