Maratta v. Ruble ( 1871 )

Opinion op the Court by

Judge Lindsey:

The land and personal property devised to William II. Ruble wrere charged with the payment of the legacies to tlie three young Housers, only upon the condition that tbe testator during his life time did not make investments for them equal in value to the respective amounts to which they were entitled, or if the investment was for their joint benefit, equal in value to the aggregate amount devised to the three legatees.

It is clear from the will itself that the testator reserved to himself the right to make such investment, and we think the proof in the record can leave no doubt hut that when he purchased the tract of land from Holt, it was for the ‘ express purpose of making a proper investment of that portion of his estate he intended them to take under his will. He so expressed himself at the time of the purchase, and repeatedly up to the time of his death, and actually- sold off a portion of the land to reduce its value to the amount he. had provided that his grand children should take under his will. Appellants, however, insist that as he took the title of the tract of land to himself, and as he failed to change his will or to execute any writing whatever evidencing the purpose for which said land was bought, that it did not pass to the grand children under the will, but that so far as the same is concerned, their ancestor died intestate. If this be correct, (it being conceded, as it must be, that the testator bought the land for the grand children, and invested in it the money he intended them to have), then it is their title which fails, on account of not being evidenced by a writing signed by their grandfather, and the convertance of the money intended for them into real estate operates as an ademption of their respective legacies, and leaves no right to take anything under the will. William H. Ruble cannot be compelled to make good the devises to them, because the testator relieved the estate bequeathed to him of that charge, by making an investment for them himself, as he reserved the right to do, and if by reason of carelessness or negligence on the part of the grandfather, the grandchildren lose the land bought for them with the money set apart for their benefit by the will, it is their misfortune, and one for which William II. Ruble cannot be held responsible.

Bulloch & Davis, for appellant. Z. Wheat, for appellee.

It is not pretended that the testator by converting into land the “money” devised to the three grandchildren intended or contemplated the ademption of their legacies, and as no such intention appears “from the will, or by parol, or other evidence” we are satisfied that it would do violence to the spirit and intention of section 1, article 3 of chapter 16 of the Rpvised Statutes to hold that the land into which the “money” devised was converted did not pass under the will to the three legatees. Wherefore the judgment of the court below is affirmed.