
    Case 70 — Action to'Recover a Legacy —
    April 24.
    Swinebroad v. Bright.
    APPEAL FROM LINCOLN CIRCUIT COURT.
    Judgment tor Dependant and Plaintiff Appeals.
    Reversed.
    Wills — Ademption of Legacy.
    Held: Under the Kentucky Statutes, section 4840, providing that a provision for or advancement to any person, whether a child or not, shall be deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, “in all cases in which it shall appear from parol or other evidence to have been so intended,” one who claims an advancement to he a satisfaction of a legacy must aver that such was the intention of the testator.
    R. P. JACOBS, R. H. TOMLINSON and G. B. SWINEBROAD fob APPELLANT.
    ,W. G. WELCH AND HILL & McROBERTS, for appellee.
    (No briefs in the record.)
   Opinion of the court by

JUDGE WHITE

Reversing.

In December, 1896, Oreenberry Bright died, domiciled in Lincoln county, testate, and after his death his will was duly admitted to probate. This will hears date of July 13, 1895, and contains, among others, these provisions: “I will and bequeath to my daughter, Kate Swinebroad, -one thousand dollars, in addition to the amount paid1 to her and family. ... I further direct that Louella Bright, my granddaughter, shall have two hundred and fifty dollars, and, should I pay off any of the donations in my time, I will keep an acct.”

The appellant brought this action seeking to recover the legacy above. To this action appellees, thé executors, answered, and pleaded that after the date of the will the testator had given to appellant $1,000, and that this operated to satisfy and adeem the legacy. To this answer a demurrer was entered and overruled. Appellant’s contention on the demurrer is that the answer should have alleged that the testator at the time of the gift or advancement of $1,000 intended to satisfy and adeem the legacy. Upon the demurrer being overruled appellant filed a reply in which she alleged that at the time of the gift or advancement the testator did not intend to adeem or satisfy the devise in the will. Upon this issue thus presented the court placed the burden on appelant, and of this ruling-complaint is made. The case was tried before the court without a jury, and he adjudged that appellant had failed to make out her cause of action, and- dismissed her petition; hence this appeal.

The leal question in the case arises on the demurrer to the answer. If the answer is sufficient, and appellant should allege that the testator did not intend to satisfy the devise, then she should be required, to sustain her case, to prove that fact. On the other hand, if it is necessary for the appellees, executors, to allege that the testator did intend that the gift or advancement should satisfy or operate to adeem the devise, then the burden of proof would be on them. The trial court was entirely consistent in his rulings, for, if there was error in passing on demurrer, the same error was repeated on the question of burden of proof. Section 4840, Kentucky Statutes, which was also in Revised. Statutes, chapter 104, section 17, provides: “A provision for or advancement to any person shall he deemed a satisfaction in whole or in part of a devise or bequest to such person contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he is a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended.” The first clause of this statute does not affect the case, because appellant is a child of the testator, and that claxxse puts all .persons on an equality with the child of a testator, but d'oes not declare the rights of a child. After having placed all legatees on the same footing, the statute declares that a provision for or advancement to a legatee, whether child or not, shall be deemed a satisfaction in whole or in part of a devise contained in a previous will in all cases in which it shall appear from parol or other evidence to have been so intended. The rule of the common law as recognized by this court in Highbaugh’s Ex’r v. Brunk, 5 Ky. Law Rep., 175, is thus stated: “At common law a gift by the testator during his lifetime of a portion equal to or exceeding the legacy was a satisfaction of the legacy, ... it being only necessary that the provision should be ejusd/em generis.” The provision of the statute, supra, changed the rule of the common law so as to make the rule as to childx-en apply to all legatees-, and we think it also changed-the rule as to the presumption of the fact of satisfaction or ademption. The rule of the common law that the gift would satisfy a legacy was but a presumption of a fact, and might be rebutted by evidence, and the real intention of the testator -shown to have been otherwise. If this- rule of the common law was to be left in force, the second. clause of the statute need not have been enacted; or, if the intention had been to set at rest the right to rebut the presumption of satisfaction by statutory enactment, the wording would doubtless have been, “it shall be so deemed in all cases, unless it shall appear from parol or other evidence not to have been so intended.” We are of opinion that the purpose and intent of the statute was to change the common-law rule of presumption as to satisfaction of the' devise, so that now such gift, advancement to, or provision for any person may be shown by parol or other evidence to have been intended as a satisfaction, and that, in the absence of proof on the subject, the provision of the will which speaks as of date of the death will prevail, and the devise will hold good. This1 question was before the court in the case of Duncan’s Trustee v. Clay, 13 Bush, 48, and it was there held-, as we understand the opinion, that parties claiming the advancement to be a satisfaction of a legacy should aver that such was the intention of the testator. The court by Chief Justice Lindsay, said: “It is not specifically averred in the cross petition of Kennedy and wife that the testator intended to satisfy in part the devise to Duncan by the gift in question. . . . It is also alleged that the testator intended the $50,000 to be a provision for and an advancement to his five devisees, and as their portion or settlement for life, and as satisfaction in part of the devise to them contained1 in the then existing will. . . . But, treating the averments as sufficient in law, they are denied by Duncan in his reply, and a careful and laborious examination of the extended record before us has failed to disclose ‘oral or other evidence’ sufficient to make it reasonably appear that the gift was intended as a satisfaction in whole or in part of the devise to Duncan.” In that the answer of appellee failed to aver that the tes■tator intended the provision for or advancement to appellant to be a satisfaction of the devise it is1 insufficient, and the demurrer thereto should have been sustained. In this view of the case it is unnecessary to discuss the evidence, and, as. a new trial becomes necessary, it.might be improper. For the reason indicated, the judgment is reversed, and cause remanded for proceedings consistent herewith.  