Boyd v. Perkins

• Decision Date: 23 October 1908
• Citation: 130 Ky. 77,113 S.W. 95
• Parties: BOYD v. PERKINS.
• Court: Kentucky Court of Appeals

113 S.W. 95

130 Ky. 77

BOYD v. PERKINS.

Court of Appeals of Kentucky.

October 23, 1908

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by Robert Boyd, Junior, executor of Robert Boyd, Senior against K. D. Perkins. Judgment of dismissal and plaintiff appeals. Reversed and remanded.

H. C Clay, for appellant.

H. H Tye, for appellee.

SETTLE J.

The appellant, Robert Boyd, Jr., as executor of the will of Robert Boyd, Sr., sued the appellee, K. D. Perkins, in the court below upon five notes of $500 each, which the latter had executed to Robert Boyd, Sr., before his death. The notes were given for and were secured by a lien upon real estate in the city of Williamsburg, Whitley county. Appellee filed answer, admitting the execution of the notes, but alleging affirmatively that they were canceled and bequeathed to him by the will of the testator. A demurrer was filed to the answer, which the court overruled, and, appellant failing to plead further, judgment was rendered dismissing the action. Hence this appeal.

The will being copied into the answer, and that pleading presenting all the facts necessary to the determination of the controversy, we must look to the provisions of the will to ascertain whether the defense presented by the answer should have prevailed.

The will contains, among others, this provision: "That at my death any note or obligation that any of my kin may owe me is hereby cancelled, and the amount is given and bequeathed to such relative." The testator died childless, and by the terms of his will the large estate of which he was the owner, with the exception of two small bequests to personal friends, went at his death to blood relatives named or referred to in that instrument. Appellee does not claim to have been related by blood to the testator, but avers in his answer that he married Malinda Boyd, who was a niece of the testator. Malinda Boyd died several years before the testator died. Appellee was, therefore, only a nephew by marriage of the testator; so the question is: Was he one of the kin or relatives to whom was bequeathed by the clause of the will mentioned notes owing to the testator?

Appellee filed with his answer two letters written him by the testator about nine years before the execution of the will, and shortly after the death of his (appellee's) wife, in which he was treated or recognized by the testator as his nephew. We cannot see that these letters throw any light upon the intention of the testator as expressed by his will. They were merely business letters, and it was but natural that the writer should have addressed them to appellee as "Dear Nephew," without meaning thereby to attach any more importance to their relationship than would result from a mere desire to avoid formality. Webster's Dictionary defines the word "nephew" as "the son of a brother, or a sister; or of the brother-in-law, or a sister-in-law." By Bouvier's Law Dictionary it is defined thus: "'Nephew' the son of a brother or sister. But in a bequest would not include, without special mention, nephews and nieces by marriage." Schouler on Wills (2d Ed.) § 536, says: "'Nephew' means in English law the son and niece, the daughter, of a brother or sister; and greatnephews or greatnieces are not embraced by the terms, and,...