Davis v. Kriger ( 1891 )

Campbell, C. J.,

delivered the opinion of the court.

The codicil contains a bequest to the appellant of fifteen hundred dollars aud interest at eight per cent, from the death of the testatrix', to be paid to him upon his attaining the age of twenty-one years, upon condition that he should “ give up his interest” in a tract of land previously conveyed to him by the testatrix. To “ give up his interest” in the land was-made a condition precedent to his taking the legacy. The right to choose or “elect” was conferred upon him. Tie might release all claim on the land under the conveyance to him, and be thereby entitled to the fifteen hundred dollars and interest, or claim under the conveyance and preclude any claim to the legacy. No time was prescribed within which he was to signify his election; but, as he could not convey his interest in the land during his infancy and the legacy was not payable to him until he became twenty-one years of age, he was entitled to a reasonable time after this in which to comply with the condition on which he was to be entitled to the legacy.

The bill avers that the appellant, but a very short time before its exhibition, learned of the existence of the will and its provision for him, and that in ignorance of it he had received a sum of money which arose from the sale of the land that-had been conveyed to him by his mother, the testatrix, without knowing that the money so received was of the proceeds of the sale of the land.

The bill shows a case of ignorance as to the party’s rights sufficient to relieve against the consequence of his receipt of the money as an estoppel to claim the legacy if he is otherwise entitled to it.

It seems that at the time of the death of the testatrix the land she had conveyed to the appellant, and for a release of claim to which she had offered him the legacy mentioned, was subject to a charge for unpaid purchase-money, and that after her death a suit (begun in her life-time) in the chancery court to enforce this claim resulted in a decree for the sale of the land, and it was sold accordingly and brought a sum in excess of the sum due under the decree, which excess was subsequently paid to the appellant, wTho received it as stated above. Did -the fact that' the land was thus dealt with defeat the right of the appellant to the legacy by making it impossible for him to comply with the condition precedent on which his right to the legacy was made to depend ? Or may he now ■“give up his interest” in the land and claim the legacy ?

The testatrix intended that the appellant should have $1,500 if he would renounce claim to the land, whereby it would become part of her estate and go by her will, which disposed of all' of her estate. She had given him the land, and, repenting of it, sought to undo it and substitute for that gift the legacy, if he would choose it instead of the land. The subsequent devotion of the land to the payment of a charge upon it, existing in the life-time of the testatrix and presumably her debt, of which she was fully cognizant when she executed the codicil, did not defeat the right of the appellant to choose between thqland and the legacy. The land went to pay the debt of the testatrix, and thus exonerated her estate.

The appellaut is certainly entitled to some relief upon the facts stated in his bill. We will not now undertake to determine the precise measure of his rights, hut hold that the bill should be answered.

Decree reversed, demurrer overruled, leave to answer in thirty days after mandate filed below, and cause remanded.