Moorman v. Louisville Trust Co.

Petition for an Extension of the Original Opinion is Sustained and the Opinion Extended by Judge Clarke. For the purpose of removing some doubt as to the effect of the acceptance by the infant, or her guardian, of the provisions made by the will for her support during infancy upon'her right, after attaining her majority, to contest the will, the petition for an'extension of the original opinion herein is granted. There is no similarity whatever in the results from a contest of this will and the acceptance of its provisions for support during infancy. The provisions of the will in the non-contest clause impose the consequences of a contest, while the matter of election to take under the will and its consequences with reference to a future contest are controlled, not by any provision of the will, but by the law with reference to such elections. Under the will the infant must suffer the consequences of a contest whether made by her or for her, but under the law the consequences of accepting the provisions of a will depend upon the ability of the one making the acceptance to understand and exercise the legal right to accept or reject the will. This right, in the absence of controlling statutory provisions to the contrary, is purely personal, and to be binding as an election must be exercised know [567] ingly; kence it cannot be exercised by one wko cannot act sui juris, nor can it be exercised so as to bind suck a person by tke guardian, curator, committee or personal representative. (See notes in 17 L. R. A. 296, 35 L. R. A. (N. S.) 1210, 49 L. R. A. (N. S.) 1072 and 1108) Since we kave no statute giving to tke guardian tke rigkt to make suck an election for kis ward (Harding’s Administrator v. Harding’s Executor, 140 Ky. 277) it is clear tke acceptance by the infant or her guardian of tke provisions of tke will-for her support during infancy would not be an election or preclude -a contest by tke infant after becoming of legal age; and as tke original opinion considered only tke consequences of a contest, and affirmed a judgment -which expressly preserved to tke infant tke rigkt to make her election after attaining her majority, it could not be construed as otherwise limiting suck rigkt. Tke will expressly imposes upon, tke trustees tke duty of supporting tke infant properly and liberally without reference to her actions during infancy, except as to a contest, and this they must do so long as she is an infant and tke will is effective; and it is quite immaterial whether or not tke guardian is an intermediary in accomplishing this purpose of tke will, and for accepting suck provisions during infancy tke infant is not chargeable, as an election, whatever, if any, equitable accounting might be required of her for sums so received, when she can and if she does elect to contest tke will.