Park's Admr. v. Park's Admr. , 1867 Ky. LEXIS 434 ( 1867 )

OPINION OE THE ÜOURT BY

JuDGE BoBERTSON.

Through tbe testator certainly contemplated an equal division of bis estate among bis two classes of devisees yet, choosing, as be did, tbe specific property to be distributed to each subject to all contingencies, tbe emancipation of tbe slaves allotted to one class did not entitle those devises to any portion of tbe land devised to tbe other class, any more than tbe death of tbe slaves after the termination of tbe estate of tbe deviso for life, would have entitled them to it. So far we concur with che circuit court.

We concur with that court also in tbe opinion that tbe personal property left at her death, by tbe legatee for life should be deemed her own absolutely, and which her administrator is entitled to bold for distribution among her legal distributees, or next of kin. Tbe fact that be assumed the ádministration without objection implies an admission that it was hers, and fortifies tbe presumption arising from lapse of time and the perishable character of tbe property, that none of it was tbe specific property bequeathed to her for life. And, there being no proof on this subject, we cannot assume that any of it was not her own acquisition by labor or purchase.

Harlan, for Appellant.

As to the essential matters of litigation we therefore approve the judgment of the circuit court.

Nor is there, in our opinion, any such substantial error in the judgment for costs as to require a reversal on that ground. While there may be some slight deviation from technical right in the distribution of costs, it seems to us that nevertheless the judgment, as rendered approximates sufficiently, for substantial justice, an equitable distribution, all things properly considered.

Wherefore' the judgment is affirmed, both on the original and cross-appeal.