the residuum of the estate and get nearly all of it, are now complaining.

It was a rule of the common law that a sale by the testator, subsequent to the making of his will, of land devised by it or of a chattel bequeathed by it was a revocation of the devise, or an ademption of the legacy.

His intention in so doing could not be considered.

This rule yet prevails in this State unless the devisee or legatee is an heir of the testator.

Chapter 50, article 3, section 1 of the General Statutes, reads thus: "The conversion, in whole or in part, of money or property, or the proceeds of property devised to one of the testator's heirs, into other property or thing, with or without the assent of the testator, shall not be an ademption of the legacy or devise unless the testator so intended; but the devisee shall have and receive the value of such devise unless a contrary intention on the part of the testator appear from the will or by parol or other evidence."

The statute casts the burden upon one claiming against a will of showing that the testator, by selling the property, intended a revocation. In this case, therefore, it was not incumbent upon the plaintiffs to allege in their petition that he did not so intend; and the demurrer to the petition upon this ground was properly overruled. It was necessary for the defendants to, and they did, allege affirmatively that it was sơ intended. (Hocker, &c. v. Gentry, &c., 3 Met., 463.)

The 12th section of chapter 113 of the General Statutes provides that "no conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as aforesaid, prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death.”

It is urged by the counsel for the appellees that, by virtue of the above provision, even if Alfred Haselwood intended by the sale of the land to revoke the devise of it, yet the pur

chase money notes therefor would pass to the appellees under the will.

The conclusion we have reached in this case renders it unnecessary to discuss this question; but the zeal with which it is urged is worthy of some notice. The section of the statute last named simply provides that no act, except a revocation in accordance with the statute, shall prevent a will from operating upon the estate named therein to the extent that the testator may own it at the time of his death. If he has disposed of a part of it, then the remainder must pass under his will owing to his being the owner of it at the time of his death.

The section of the statute first above cited applies to a case where the property named in a will is afterward converted into other property; while the words "such interest in the estate" in the section last named are equivalent to the words "such portion of the property." The latter expressly declares that which is but an implication from the former, and there is no conflict between the two sections.

As the appellees were heirs of the testator the only real question in this case is one of fact: Did he, by a sale of the land, intend to revoke the devise?

It is proper to presume that the judgment of the lower court upon this question is correct; but upon a careful examination of the record we are satisfied of it.

The testator wrote his own will; and if he, after making it, concluded not to give the appellées any portion of his estate it is reasonable to suppose he would have added a codicil to it to that effect.

There is no testimony tending to show that he ever expressed any desire to change it, or to violate his promise made to Ermine H. Webster upon her deathbed, to the effect that her children should have all that he might ever realize on the indebtedness of her husband that was secured by mortgage to him, and which sum so realized was $2,300.

It is urged, however, that the testator became unfriendly with the father of the appellees, and, therefore, withdrew his

bounty from the children; but the testimony upon this point is conflicting, and if true it is singular that he never revoked so much of the tenth clause of his will as released Richard A. Weshter from the payment of all that he was then owing him.

Some of the testimony tends to show that the testator said that he had offered the Williams land to Richard A. Webster for his children, and that he had declined it; and that he had nothing more to offer him or "could do nothing more for them;" but even admitting this to be true, yet these expressions did not necessarily mean that they were not to have what he had offered their father, or the proceeds arising from its sale.

The testimony does not disclose that he ever intimated that he had sold the land in order to revoke the devise of it. In fact he did not sell all of it; and this circumstance tends to show that the revocation of the devise, to the appellees was not his object in making the sale.

He found a purchaser for a certain portion of it at a good price. Richard A. Weshter says that the testator told him that he intended it for the appellees, but that he had been offered a certain price for it, and the father of the appellees then advised its sale upon the ground that the money would be worth more to them than the land.

One witness says that the testator told him, as late as 1879, that he intended to do something for his niece, Ermine's, children; while upon the other side it is in testimony that he said that he intended W. C. Webster or his children to have all his property.

But the trouble as to the latter statement is that the witness testifies that he heard him so say often, and before the year 1877 or before the will was made; and it shows a contrary intention.

We have thus, to some extent, reviewed the testimony in order to show that it is at least conflicting; and it is unnecessary to review the rulings of the court upon the exceptions to the depositions because, whether sustained or reversed, they are not sufficiently important to change the result.

The burden rested upon the appellants to show that the testator intended by the sale to give nearly all of his property to them, and to revoke a devise to others more nearly related to him than the appellants.

The mere sale did not create a presumption that this was his object. In such a case the intention must be shown by other testimony than that of the conversion merely, and the judgment is affirmed.

W. E. & S. A. Russell and W. Lindsay for appellants.
R. S. Montague and W. B. Harrison for appellees.

WOOLLEY v. PRESTON AND EWING.

(Filed December 9, 1884.)

1. Wills Trustees-Termination of powers-Testatrix devised her estate to trustees to pay her debts, and for that purpose gave them full power to sell, mortgage or reinvest, and to divide the residue, after payment of debts, between her children. Held-After the debts had been paid the trustees' powers expired, and they became mere dry trustees of the naked legal title only, which the children might, at any time, compel them to convey by absolute deed, without reserving to themselves any further power to sell, mortgage or reinvest.

2. Trusts-Restriction on alienation-Liability for debts-The will further provided that the trustees should hold one-half of the share of each son in trust for the son during his life, without any power in the son to alienate or charge it for debt. Held-The restriction on alienation being repugnant to the grant of a life estate, contrary to the statute and void. each son is entitled to have his entire share conveyed to himself free of trust.

Appeal from Louisville Chancery Court.

Opinion of the court by Chief Justice Hines.

The question presented is the construction of the will of Mrs. S. H. Woolley. She died in 1873, possessed of a large quantity of real estate in Kentucky and in the State of Arkansas, having personal estate of comparatively little value, and being indebted from $45,000 to $50,000. The will appointed William Preston and others executors, and subsequently appellee, A. J. Ewing, was associated with William Preston in the discharge of the executorial and trustee duties imposed by the will.

The pertinent clauses of the will are:

"2d. I request my executors to collect the assets of my estate, and pay all just debts which may be legally established and proven, or which they in their judgment may believe to be just, according to their discretion."

4th. It is my will if my personal assets should be insufficient to pay my debts, or to carry into effect the provisions of this will, then my executors and trustees shall have full and ample power to sell and convey, transfer or assign, mortgage, charge or encumber such part or portion of my estate, real or personal, as they may deem proper, in order to carry out the provisions of this will."

"6th. It is my will that my executors and trustees shall, after the payment of my debts and settlement of my estate, divide, or cause to be divided, all the rest and residue of my estate, real, personal or mixed, into equal portions, for the purpose of making just and equal partition among my children' and their descendants; and after such division shall have been made, I direct my executors and trustees to convey to each one of my children, or their descendants entitled thereto, one-half of such share or portion, absolutely and in fee simple, and the other half of such share shall be held or invested in good real estate, in the discretion of my executors and trustees, for the use and benefit of my said child for the term of his natural life, and after his death for the use and for the benefit of his children; or, in default of children living at the time of his death, to such uses as such child may declare, limit or appoint, by deed or will; and in default of such appointment, then such moiety of such share shall pass to and vest in the heirs of such child absolutely in fee. And my trustees may permit such child to retain possession of the moiety of such share without any account of rents or profits, or to hold, use and occupy the same for life without any account, and without impeachment of waste and without any responsibility of said trustees therefor. It is my will that this provision shall only apply to the shares of my sons, and not to the shares of my daughters, which are hereinafter specially provided for by me."