Shaver's Admr. v. Ewald's Exor.

RESPONSE to Petition eor Rehearing by Chiee Justice Hobson. In the original opinion we said: “Ewald left an estate of between $2,000,000 and $3,T 000,000. tie had adopted three children to whom he left the bulk of his estate in trust; and it is alleged that Iiq apprehended that his brothers and sisters might attack the validity of the adoption of the children, and might contest the will. His brothers and sisters and their descendants were his heirs at law, and would receive the property if the will was broken.” (See Shaver’s Admr. v. Ewald’s Exor., 142 Ky. 472.) In saying that his brothers and sisters and their descendants were Ewald’s heirs at law and would receive the property if the will was broken, we did not have in mind the validity of the adoption of the children, or pass thereon, as this matter was not before us. We only meant that his brothers and sisters and their descend^ ants were by blood his next of kin. We merely stated the facts to illustrate the probable intention of the testator in making the third paragraph of the will and to explain the controversy before us. Those legatees who accept the legacies will accept them under the will and in full of all interest in the estate. After " they have so accepted their legacies they cannot [161] say it is not the testator’s will. It will he the testator’s will as to them, whatever it may be as to others. By accepting the legacies, they agree that it is the will of the testator, and agree to receive the legacies in fnll of all interest in the estate. To hold otherwise wonld be to allow part of the legatees to accept their legacies nnder the will and then fnrnish this money to other legatees to carry on a contest over the will, or to allow them to take what is given them nnder the will and then without risking anything, to take the chance of getting more of the estate if the contest was snccessfnl, and to lose nothing if it was unsuccessful. The will was drawn to prevent this. If the will should be contested and held invalid, any estate that would fall to any legatee who has accepted his legacy under the will, it being still the will as to him, will pass under it; and as therein directed to the devisees named in it; and only that part of the estate that in case of intestacy would fall to those who have not accepted their legacies will be affected by a successful contest of the will. Petition overruled. Whole court sitting except Judge 0 ’Rear.