judgment who are not my enemies and at no period of their existence have been and who are friends of Wm. Bryant family or any part of the family, in saying under oath, that beyond any doubt they believe her (Essell) to be a child of my blood, then she is to have my entire estate, but the gift is subject to the condition as expressed in the fifth paragraph of this will. Whatever part of my estate Essell, the daughter of Myra Bell Hoffman, born about Oct. 5, 1895, may heir as given by will or determined for her by the court is to be kept for her by some friends of mine or some trust company and no part no part of the principal or proceeds or interest is to be expended for expended for any purpose except for the absolute necessity occasioned by sickness unless she is under the absolute control and training and rearing of some other person than her mother or any one kin to her mother. When she is 21 years old whatever part of my estate, together with the interest and proceeds thereof she heirs is hers to do as she pleases to do with but should she die without heirs of her body (child) whatever she has obtained from my estate, not necessarily expended after her burial expenses are paid, I desire and will to give to Kate Connell of Shepherdsville, Ky.

"Seventh. I desire and will and am extremely anxious about it, that when Essell (the child spoken of in this will) arrives at the age of 2 years old that the court appoint some good person of good habits, morals and disposition and not a Catholic and who will not teach her any religion except common sense and marality and honesty and no kin to her mother (they are all too ill-bred people to properly train a child) to take her and do by her as the part of my estate given her will admit of.

"Eighth. If her mother (Essell's mother Bell) will not give her up and there is no way of getting her (Essell) from under her (Bell) control or any of her heirs (Bell's kin) then the whole of my estate not disposed of by court as spoken of, or any other way disposed of by court or myself to brothers and sisters and their heirs at law, uncle and aunts and their heirs at law, Roger Hoffman and his heirs at law, his mother, Emma D. Patterson, I will and bequeath to Kate Connell of Shepherdsville, Ky."

"(Codicil)

"Shepherdsville, Ky., Aug. 13, 1903.

“1. I, J. A. Hoffman, having become fully satisfied in regards to Essell, the daughter of Myra Bell Kendall, alias Hoffman, I will and bequeath to her one cent only of my estate and under no condition whatever is she to have any part of my estate."

A general demurrer by appellee Arnold was sustained to the petition, and appellant, Essell Hoffman, declining to amend or further plead, the petition was dismissed by the trial court, and she prosecutes this appeal.

In order to determine whether the petition presented a cause of action which entitled appellant, Essell Hoffman, to the relief she sought, or any relief, it is necessary to examine the will and codicil of J. A. Hoffman, which she attached to her petition as an exhibit. Appellant's contention is that her father, J. A. Hoffman, died intestate as to the house and lot described in the petition and that she, as his daughter and one of two heirs, inherits a one-half undivided interest in and to the same, and on the death of the widow, her mother, appellant was entitled to immediate possession, despite the attempted sale and conveyance of the property by the widow and Kate Connell, a devisee, to appellee Arnold; that the widow had only a life estate which ended at her death on the 22nd day of March, 1917, and Kate Connell took no interest whatever in said property under the will, because, as appellant contends, the devises to Kate Connell were all conditioned upon appellant first taking, and since the codicil wholly deprived appellant of an interest in the estate, under the will the devise to Kate Connell being contingent upon appellant first taking, must necessarily fail, thus leaving the house and lot as undevised property of the estate of her father. She bases her claim to the property upon the well established principle that "although the intention to disinherit the heir be ever so apparent, he must, of course, inherit, unless the estate is given to somebody else; and the reason is, that the law provides how a man's estate at his death shall go, unless he, by his will, plainly directs that it shall be disposed of differently.' Denn v. Gaskin Cowp. 657; Todd, etc. v. Gentry, 109 Ky. 704; Coffman v. Coffman, 85 Va. 459, 2 L. R. A. 848.

Appellant does not claim under the will, but acknowledging that by the codicil she is disinherited, seeks only as an heir to recover the property in question as a part of the undevised estate of the testator.

Did the property in question pass under the will to Kate Connell? If it did not, then appellant takes as heir. The codicil of August 13, 1903, copied above, fixes beyond question the interest of appellant in the devised estate of her father. By that instrument she could have but one cent. The right of an heir to undevised property is not questioned by appellees in this controversy. But they insist that Hoffman disposed of his entire estate by his will and codicil. To sustain this contention appellees call attention to the first three lines of the will, which read: "Be it known to whomsoever, that the following is the manner, way and condition Í dispose of all my property of whatsoever kind, money, notes and accounts included," and insist that this language imports a purpose and intention on the part of the testator to pass all his estate, both real and personal, of every character and kind, by his will and the codicil thereto. By items 1, 2, 3 and 4 of the will, the testator devised to his half-brothers and sisters, uncles and aunts, and to his son Roger A. Hoffman, and their legal heirs, one cent each. By the fifth item he gave to his wife, Mary Bell Hoffman, one cent, with this provision: "If the courts hold her to be my legal wife and entitled to heir of my estate as such, if by any cause or by whatever means she heirs a greater portion of my estate, then her child Essell, the only child born to her since our marriage, Jan. 9, 1895, shall have only one cent of my estate. The sixth and seventh items do not appear to be of controlling influence in the determination of this controversy, and we shall pass them over. Item cight of the will, omitting the parenthetical clause and explanatory statements, is in substance as follows: "If Essell's mother will not give her up, then the whole of my estate, not otherwise disposed of, I will and bequeath to Kate Connell, of Shepherdsville, Ky." When this item is read in connection with the first paragraph of the codicil of August 13, 1903, copied above, which, when brought to its final analysis, is, "I will and bequeath to Essell one cent only of my estate, and under no condition whatever is she to have any part of my estate," the rights of appellant are immutably fixed.

The devise to Kate Connell, under item eight of the will, was not made to depend upon appellant first taking, but on the contrary Kate Connell was to take the entire estate if Essell did not qualify as provided in the will. Kate Connell was devised the residue of the estate after the payment of the few legacies of one cent each, set forth in items 1, 2, 3, 4 and 5 of the will, on condition that appellant, Essell Hoffman, did not come within the provisions of the will. The testator, however, having become satisfied concerning the parentage of Essell, by a codicil fixed her share at one cent and forever shut her out as a contingent devisee under item eight of the will, thus leaving Kate Connell to take all the rest and residue of the estate.

Whether this is the construction placed upon the will by the trial court or not, the conclusion reached by that tribunal was eminently correct, because the petition, while setting forth the conditions of the will and especially that in items seven and eight, to the effect that "in the event plaintiff's mother, the said Mary Belle Hoffman, should not surrender the custody and control of this plaintiff to some person to be appointed by the court, then the whole of testator's estate, not otherwise disposed of, should pass to and become the property of said Kate Connell," did not negative the exceptions and conditions therein pleaded. As Essell could not take the estate, unless her mother surrendered her to another, her surrender was a condition precedent. The devise was to Kate Connell of the residue of the estate, if Essell did not qualify, The eighth clause of the will does not confer the estate upon Essell, but provides for its distribution in case Essell's mother will not give her up. Having alleged a condition precedent in the petition, it was incumbent upon appellant, as plaintiff below, to show by pleading that Kate Connell did not come within the exception and take the whole estate. Secs. 316b, 553 and 554, 3rd edition, Newman's Pleading and Practice.

The averments in the petition do not show that Kate Connell does not fall within one of the exceptions which would defeat appellant's right to the property. It was incumbent upon appellant to aver facts showing her right as heir, jointly with her brother to the property, absolutely and not a mere possibility which was subject to be defeated by a named contingency which, so far as the pleading shows, happened. On demurrer a

pleading is construed strongest against the pleader, and when the petition in this case is so construed, it does not state a cause of action. The general demurrer, therefore, was properly sustained.

Judgment affirmed.

Cooper, et al. v. Clark, et al.

(Decided March 7, 1919.)

Appeal from Pike Circuit Court.

Appeal and Error-Appealable Orders-Order Setting Aside Judg ment.-An order setting aside a judgment in term time, and permitting the defendants to answer, is not a final order from which an appeal will lie.

JAMES M. ROBERSON, ROSCOE VANOVER, E. J. PICKLESEIMER and R. H. COOPER for appellants.

CLINE & STEELE for appellees.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER Dismissing the appeal.

On July 26, 1917, plaintiffs, R. H. Cooper, and D. H. Hatcher, brought this suit against the defendants, T. N. Clark and the Omar Oil & Gas Company, to recover rentals in the sum of $1,000.00 on leases which they had assigned to defendants, and damages in the sum of $18,691.00 for a failure to comply with certain terms of the contract, and also the further sum of $30,000.00, the cost of drilling wells according to the contract. On August 6th following, Messrs. Cline & Steele appeared as attorneys for the defendants and filed a demurrer to the petition. The next regular term of the Pike circuit court following the filing of the demurrer began on September 10th. On September 15th, the demurrer was overruled. On the same day, plaintiffs filed an amended petition and defendants insisted on the demurrer to the petition as amended. On September 18th, an order was entered overruling the demurrer to the petition as amended. On September 19th, plaintiffs made a motion to have the allegations of the petition and the amended petition taken as true. The defendants objected and were given until September 24th to file an