Volume 189 — Kentucky Reports

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Division No. 1).</p>

<p>Homestead—Right of Homestead of Infant Children in Property Devised by One Parent to Another.—Where a wife owning property in fee simple, and 'owing no debts, devised her property to her husband, who did not renounce the will, their infant children have no homestead in the property.</p>

<p>1. Municipal Corporations—Use of Motor Vehicles—Ordinances.— A city of the fourth class may, by virtue of a statute giving it “exclusive control and power over its. streets, roadways, sidewalks, alleys,” etc., and in the exercise of its police powers, through its city council, pass and enforce an ordinance restricting the use to travel in one way or direction by motor vehicles, of a street so narrow as to make its use by such vehicles in traveling both ways in the customary manner unusually dangerous to them, their occupants, or to other vehicles and occupants, or pedestrians on such street.</p> <p>2. Municipal Corporations—Use of Motor Vehicles.—Such an ordinance does not violate the provisions of the Constitution forbidding class or discriminatory legislation, nor is it unreasonable or oppressive, merely because it affects solely the operation of automobiles and other motor vehicles and fails to regulate the operation of all other vehicles using the same street.</p> <p>3. Municipal Corporations'—Use of Motor Vehicles—Class Legislation.—Class legislation, discriminating against some and favoring others, is prohibited. But legislation, which in carrying out a public purpose is limited in its application if, within the sphere of its operation it affects alike all persons similarly situated, will not be declared invalid.</p> <p>4. Municipal Corporations—Motor Vehicles—Use of pighways.—As motor vehicles furnish a suitable mode of travel and transportation, not necessarily inconsistent with the proper use of public highways by others, such highways are open to their use; but as they have introduced a new element of danger to travelers on the highways, this fact necessarily compels a higher degree of care from those who operate them, than is required of those in control of vehicles drawn by horses. For the same reason, in exercising their authority to regulate the operation of motor vehicles on public highways, the state or municipality must necessarily put them in a class in which other unlike vehicles are not, and cannot be, included.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>1. Criminal Law—Clothing of Deceased—View of by Jury—Discretion—Evidence.—In the trial of one accused of a felonious homicide, and where the clothing which was worn by the deceased at the time of the reception by him of the mortal wounds has been properly received in evidence, a permission to the jury to take the clothing with it, when it retire's for deliberation, is a matter within the discretion of the trial court, and it is not error to grant such permission, unless there is something in the circumstances of the case to show that the permission was an abuse of discretion.</p> <p>2. Criminal Law—Impeachment of Juror.—The evidence of a juror can not be received upon a motion for a new trial, to impeach the verdict of the jury, or to prove his own misconduct as a juror, or that of his fellows.</p> <p>.3. Criminal Law—Continuance.—A party, who is surprised by the testimony of a witness must before the conclusion of the trial, move the court for a continuance or postponement of the trial to énable him to counteract the effect of the testimony of the witness, showing his grounds therefor and ability to do same, as it is too late to do so, on a motion for a new trial.</p> <p>4. Criminal Law—New Trial.'—A new trial will not be granted on account of newly discovered evidence, which is merely cumulative, or can be used only to impeach a witness, who has testified upon the trial, unless .the new evidence is of such a permanent and convincing character as to be reasonably calculated to change the result upon another trial.</p>

<p>Appeal from Lincoln Circuit Court.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>1. Damages—Injury to Real Property.—Where in suit for damages to real property, it was apparent from pleadings filed by the defendants and ottered by a third party, that the real issue was one of title between the plaintiff and the third party under whom defendants admitted the acts complained of, the court erred in rejecting pleadings of defendants and the third party to be made a party to the action; but where defendant is not prejudiced and the third party has not appealed, a reversal will not be ordered because thereof.</p> <p>2. Adverse Possession—Title.—The adverse possession that will ripen into title after the statutory period must be continuous.</p> <p>3. Adverse Possession—Title.—Any break within the statutory period in the continuity of the actual adverse possession is fatal to title.</p> <p>4. Adverse Possession—Actual Possession.—Evidence that another for claimant, who was not in the actual possession, had control for him during the period of his absence for six months, insufficient to prove adverse possession during the period.</p>

<p>1. Homicide—Dying Declarations—Test of Admissibility.—The test 'of admissibility as a dying declaration is that the statement was made under a consciousness of impending death, and this may be determined not only by what decedent said, but also by his evident danger and by all the surrounding circumstances.</p> <p>2. Homicide—Dying Declarations.—The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for its admission or rejection as evidence.</p> <p>3. Homicide—Dying Declarations.—Statement of declarant made three days before death held to be reaffirmance of statement made to same witness twenty-seven days before death.</p> <p>4. Homicide—Dying Declarations.—Proof of attendant circumstances and statements of declarant held sufficient to prove he was conscious when statement was made, in the absence of contrary evidence, although he was physically weak and no one testified in so many words that he was conscious.</p> <p>5. Homicide—Dying Declarations.—Not error to admit as dying declaration, statement made under sense of impending death, because of lack of proof that declarant did not entertain hope of recovery thereafter.</p> <p>6. Homicide'—Dying Declarations.—The statement not rendered incompetent because witness cannot state exact words of declarant.</p>

<p>1. Criminal Law—New Trial—Newly Discovered Evidence—Cumulative Evidence.—A new trial will not ordinarily be granted upon tbe ground of newly discovered evidence, which is cumulative only or which merely impeaches a witness or witnesses upon the opposing side. To authorize a new trial for such cumulative or impeaching evidence it must be of such preponderative nature as that it will be calculated to influence the jury and make it reasonably certain that a different verdict would be returned. But in no case will such newly discovered evidence be considered unless the party relying on it exercised due diligence to procure it for the trial.</p> <p>2. Criminal Law—New Trial—Evidence—Surprise.—One may not be said to be surprised at the testimony of a witness or witnesses, tending to establish the contention of his adversary in the litigation since all facts and circumstances relevant to the claim or contention of the adversary should be anticipated and ex""“pected unless perhaps the witness or witnesses giving such testimony had fraudulently misled or deceived the one surprised into the belief that no such testimony, would be given.</p> <p>3. Criminal Law—New Trial—Evidence—Surprise.—In order to take advantage of legal surprise during the process of a trial, the one affected thereby should at the time of the surprise make the fact known to the court and then ask for such relief as the facts authorize. In such cases he will not be permitted to remain silent until the return of the verdict of the jury and then for the first time rely on his being surprised.</p> <p>4. Criminal Law—Trial—Objection to Admission of Evidence.—An objection to the admission of evidence must point out that which is claimed to be incompetent and it will not avail one to make a general objection to testimony as a whole when parts of it are competent although other parts are incompetent.</p> <p>5. Criminal Law—Objection to Testimony—How Shown.-—An objection to testimony must appear in the record and can not be shown by affidavits filed after the trial unless such proceedings are sufficient to constitute a bystanders’ bill of exceptions.</p> <p>6. Criminal Law—Procurement of False Testimony.-—It is competent for the Commonwealth upon the trial of a criminal offense to prove that the defendant endeavored' to procure a witness to give false testimony. Such testimony is relevant as a circumstance inconsistent with innocence and has a tendency to show a consciousness of guilt and forms one of the exceptions to the rule forbidding proof of independent crimes.</p> <p>7. Criminal Law—View of Premises—Discretion of Coprt.—It is within the discretion of the trial court to permit a view of the premises and unless such discretion is so manifestly abused as to operate prejudicially to the defendant a new trial will not be ordered therefor.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Appeal from Shelby Circuit Court.</p>

<p>1. Conspiracy—Evidence of Incident to Conspiracy.—Evidence of a shrill whistle, a peculiar yell and the singing of a song ridiculing decedent was competent evidence as part of and as an incident to a general charge of conspiracy.</p> <p>2. Criminal Law—Criminal Intent—Evidence.—Circumstances and incidents tending to throw light on the acts of several persons in the furtherance of a common design are competent as evidence of a criminal intent on their part to take the life of decedent.</p> <p>3. Criminal Law—Reversal.—The admission of inconsequential evidence is not a ground for reversal.</p> <p>4. Criminal Law—Argument and Conduct of Counsel.—Where objection is made to an argument of the attorney for the Commonwealth and said objection is sustained and the jury admonished not to consider the statements, the court having done all it was requested to do is not required to do more.</p> <p>5. Criminal Law—Argument and Conduct of Counsel.—Where counsel is of the opinion that an argument is sufficiently prejudicial to the interest of his client to deprive him of a fair trial he should request the court to discharge the jury, but failing to do this and electing to take his chanoe before the jury, he cannot complain upon appeal.</p> <p>6. Criminal Law—Instructions—Reversal.—In a trial for murder, where there are several defendants, the fact that an instruction is necessarily long is not ground for reversal, if it fairly and properly submits to tbe jury tbe questions in issue.</p>

<p>1. Appeal and Error—Delay in Setting Case for Trial.—A litigant who permits a case to be continued from time to time without objection cannot upon appeal be heard to complain of the court’s delay in setting the case for trial.</p> <p>2. Appeal and Error—Admission or Rejection of Evidence.—Alleged errors in the admission or rejection of evidence not embodied in the motion for new trial are not subject to review by this court.</p> <p>3. Trial—Instructions.—An instruction held proper which substantially submits to the jury an issue raised by the pleadings and proof.</p> <p>4. Bills and Notes—Endorsement Without Recourse—Recovery.— That a note was endorsed without recourse will not bar recovery by the endorsee, where the evidence shows that but for the fraud and misrepresentation of the endorser the note would not have been accepted as part payment in a transaction between the parties.</p> <p>5. New Trial;—Newly Discovered Evidence.—Newly discovered evidence which is merely cumulative and not of a decisive nature, nor such as was reasonably certain to have brought about a different result, is not sufficient to entitle the mover to a new trial.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p>

<p>1. Municipal Corporations—Power to Assess for Street Improvement Property Outside City.—Under a statute authorizing a city to assess the cost of street improvements against lots abutting on the street improved, it is not authorized to assess the tax against lots outside the city limits.</p> <p>2. Municipal Corporations—Power to Assess for Street Improvement Property Outside City.—Where the west line of a street was the boundary line of a city it had no authority to assess against lots abutting on the west line of the street any part of the cost of the improvement of the street, as the statute did not expressly confer this power.</p> <p>3. Municipal Corporations—Power to Assess for Street Improvement Property Outside City.—Whether it would be competent for the legislature by express enactment to authorize the assessment of property outside the city limits for the improvement of a street that was the boundary line, and on which the property sought to be assessed abutted is not decided.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>1. Appeal and Error—Finding of Chancellor.—The finding of the chancellor upon questions of fact will not be disturbed unless his finding be against tbe weight of 'the evidence, in which event a different finding will be made by this court.</p> <p>2. Mortgages—Absolute Deed as Mortgage.—Where an instrument is intended merely as a security for a debt, it is a mortgage though in form a deed absolute on its face; and where there is doubt as to whether an instrument is a mortgage or conditional sale, the instrument will be considered a mortgage.</p> <p>3. Mortgages—Improvements.—A mortgagee in possession will not be allowed to make' improvements which will render it more difficult for the mortgagor to redeem by charging him with cost of improving the property.</p> <p>4. Mortgages—Improvements.—A mortgagee in actual personal possession of the mortgaged real estate is chargeable with the rent-able value thereof; and the rental value of the property must be determined upon the basis of its condition at the time the mortgagee took possession and not its rental value in its enhanced ' condition after improvements have been placed on the property by the mortgagee.</p>

<p>1. Bills and Notes—Endorsement for Transfer—Presentment.—The unqualified, unrestricted and unconditional endorsers, of a plain and unambiguous negotiable promissory note undertake, that on due presentment, tbe note will be paid according to its tenor.</p> <p>2. Bills and Notes—Parol Declarations—Altering Terms of Contract. —Proof of contemporaneous parol declarations and agreements is not admissible to contradict, vary, modify or alter tbe terms of a written contract, including notes and bills, unless tbe writing only purports to express a part of tbe contract, or the contract is expressed in such short and incomplete terms, that in and of itself it is unintelligbile, and then tbe offered evidence must not be inconsistent with tbe written terms.</p> <p>3. Bills and Notes—Parol Agreement—Cause of Action or Defense Based Upon—A cause of action or defense can not be based upon the proof of contemporaneous parol agreements between tbe obligor and obligee in a promissory note, which have tbe effect, if sustained, to destroy the obligatory character of the note or to restrain or impair its legal effect according to its tenor, unless it is pleaded and shown, that through fraud or mistake of the parties, the terms of the note fail to express the intentions of the parties as agreed upon.</p> <p>4. Bills and Notes—'Surety—Parol Agreement to Become.—A parol agreement made between the obligor and obligee, at the time of the execution of a promissory note', to induce the obligee to become a surety upon it, that the obligor will obtain another surety to it, does not have the effect to impair the obligation of the surety, l)ut, will support a cause of action for damages, in the event of the failure of the obligor to perform his promise.</p>

<p>Appeal from Kenton Circuit Court.</p>

<p>Appeal from Oldham Circuit Court.</p>

<p>Appeals from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Boyle Circuit Court.</p>

<p>Appeal and Error—Duty of Lower Court Upon Second Trial.— Where in the opinion on the first appeal the case is reversed because of errors in the instructions, it is the duty of the lower court, upon a second trial, to obey the mandate of this court • either by correcting the instructions previously given or by giving new instructions in conformity with the opinion, or by both.</p>

<p>Appeal and Error-—Finding of Cbance'llo-r.—Evidence examined and held to sustain chancellor’s findings upon questions of mental capacity, undue influence and adequacy of price in suit to cancel deed.</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>Appeal from Hardin Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>1. Curtesy—Husband and Wife.—Under tbe law, previous to the act of March' 15, 1894, a surviving husband, where issue of the marriage was -born alive, upon the death of the wife, became the owner of a vested estate of freehold for his life, called a curtesy, in the lands owned and possessed by the wife during coverture and to which the husband had not released his right.</p> <p>2. Curtesy—Effect of Statute.—An estate of tenant by the curtesy which vested previous to March 15, 1894, was not affected by the enactment of that statute.</p> <p>3. Curtesy—Bar, Release1, or Forfeiture.—A mere failure by the owner of a vested freehold estate, in land to exercise his rights therein, does not deprive him of such estate, unless the land was occupied by an adverse claimant for the statutory period of limita»tion, necessary to bar a recovery of real estate.</p>

<p>1. Criminal Law—Absence of Bill of Exceptions.—In the absence of a bill of exceptions the court .will presume there "was sufficient evidence upon which to base the instructions given, and that the evidence did not warrant the giving of those which were refused.</p> <p>2. Rape—Detaining Woman—Instructions.—One 'indicted under section 1158, Kentucky Statutes, for the crime of detaining a woman against her will can not be convicted of that charge if the detention be with her consent, even though she be under the age of .sixteen years; and the trial court should not instruct the jury to convict the defendant if it should believe from the evidence beyond a reasonable doubt that the prosecuting witness was under sixteen years of age and the defendant detained her for the purpose of having sexual intercourse with her.</p>

<p>1. Insurance—Beneficiaries—Separate Estate of Married Woman.— A policy of insurance issued in 1864, and which expressed, that it was for the sole benefit of a married woman, the right ás a beneficiary of it was vested in her, and was her separate estate, and from exercising control or reducing it to his possession, her husband was excluded during her lifetime.</p> <p>2. Husband and Wife—Choses in Action Owned by Wife.—The right of the husband to reduce the choses in action owned by his wife, under the common law, was not a vested right to the property, where the chose was • the separate estate of the wife, which he was precluded from reducing to possession during her lifetime; and previous to her death, the legislative authority had power by legislation to deprive him of his expectancy to receive the property at her death.</p> <p>3. Insurance—Beneficiaries—Children of Married Woman.—Sections 30 and 31," of the statute of March 12, 1870, the provisions of which are now embraced in sections 654 and 655, Kentucky Statutes, had the effect of causing the children of ■ a married woman for whose benefit a policy of insurance had been issued previous to 1870, to be entitled to the benefits of the policy, as against any claim of the husband, unless the terms of the policy or the charter of the insurance company otherwise provided.</p> <p>4. Insurance—Wife Procuring Policy on Husband’s Life for Her Benefit—Premiums.—Where a married woman procures an insurance policy upon the life of her husband, for her sole use and benefit and pays or contracts to pay the premiums upon the policy, if such policy is held to be of a testamentary character, the married woman is to be deemed the testatrix.</p> <p>5. Wills—Where Devisees Outlive Testator.—Sections 2064 and 4841, Kentucky Statutes, do not have application where the devisees ■ named in an instrument of a testamentary character, outlive the testator.</p>

<p>Appeal from Russell Circuit Court.</p>

<p>Schools and School Districts—Election of Chairman of Division Board.—This is a companion of the appeal of Pierce v. Sullivan, decided at the same time, and is affirmed for the reasons set forth in the syllabus and opinion of that case.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>Prisons—Commutation of Sentence—When Prisoner Not Entitled to Parole.—A prisoner convicted in 1910 under the indeterminate sentence law then in force, and sentenced to serve a term of not less than ten nor more than twenty years in the penitentiary, and whose punishment is commuted by the Governor to eight to twenty years, after .serving eight years is not entitled to a parole because under the parole act he must serve the minimum term provided by law for the crime for which he is convicted before he is eligible to parole, and he can not by mandamus require the board of charities and correction to grant him a parole.</p>

<p>1. Easements—Presumption of Grant—Implication.—Tbe continuous, unexplained and uninterrupted use of a passway over and across inclosed premises will raise tbe presumption of a grant after sucb user bas continued for fifteen years or more, but no length of time will raise sucb presumption wben it appears that tbe use at its commencement was permissive, unless in tbe meantime there has been a distinct and positive assertion of tbe claim of right to the easement by the one using it, and which assertion is brought borne to the owner of the servient estate and the use continued for fifteen years or more nafter that time. But the presumption in favor of a grant after the expiration of fifteen years or more may be rebutted by the owner of the land and the use of the passway shown to have been permissive only.</p> <p>2. Basements—Permissive Use.—The fact that the owner of the servient estate maintained the passway throughout its use and the fact that he constructed and maintained gates across it are relevant circumstances tending to show that the use of the pass-way was all the while permissive and not adverse.</p> <p>3. Easements—Permissive Use.—It is also competent proof in such cases that the owner of the servient estate attached conditions and imposed terms upon which his neighbors might use the pass-way as tending to show that its use was by virtue of a privilege only which could be revoked at any time.</p> <p>4. Easements—Permissive Use.—Evidence examined and held that the use of the passway in this case was permissive and not exercised under a claim of right and that'the owner of the land over which it ran could close it at any time.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>1. Landlord and Tenant—Passway—Repairs.—The owner of premises leased to two or more different tenants with an approach or passageway for the convenience of all and used in common by them will be deemed, nothing to the contrary appearing, in possession of such portion or approach and bound to keep it in repair at his own expense, and be liable to a tenant for injury happening through a defect therein of which the landlord had notice, wheré the tenant is without fault.</p> <p>2. Landlord and Tenant—Repairs.—Where premises are let to two or more tenants and the landlord retains control over certain portions used in common by the several tenants he must exercise reasonable diligence to keep such reserved parts in safe condition for use of the tenants.</p> <p>3. Landlord and Tenant—Defective Condition of Premises.—Knowledge on the part of a tenant of the defective condition of steps used in common by several tenants and which are practically the only means of ingress and egress to the premises, does not estop the tenant from prosecuting a suit for damages, on account of injuries caused by the condition of said steps.</p> <p>4. Landlord and Tenant—Use of Passway.—Mere continued use of a common passageway, after knowledge of its dangerous condition, is not of itself conclusive evidence of a lack of due care on the part of the tenant.</p> <p>. 5. Evidence—Records.—It is not error to refuse to permit the introduction in evidence of portions of records in previous suits in which plaintiff was a party where the full effect of such records was obtained on the cross-examination of plaintiff.</p>

<p>Appeal and Error—Second Appeal—Law of tbe Case.—Errors relied on but not noticed in tbe opinion are concluded by tlie opinion, and this rule applies to all cases where the opinion does not expressly state that a particular point is 'not passed upon.</p>

<p>Appeal from Lee Circuit Court.</p>

<p>1. Injunction—Prevention of Trespasses—Multiplicity of Suits.—Injunction will lie to prevent trespasses repeated and threatened to be repeated from day to day of a character calculated to destroy the substance of the property, in the form in which it is held, and' to result in a multiplicity of -suits at law.</p> <p>2. Contracts—Failure to Perform Because of Casualties.—-Obligations, which are not imposed by law, but, are incurred by a party to a contract by his own agreement, he is not excused from a failure to perform, because thereafter he is disabled to perform them, because of casualties, without any fault upon his part, as it was his right to make provisions against such when the contract was entered into.</p> <p>3. Contracts—Failure to Perform.—Parties may insert such lawful stipulations in their contracts, as they may agree upon, and they may also agree, as to what the’ results of a failure to perform th'e stipulations of a contract shall be, and if the parties are sui juris, they must submit to the results, which they agree shall follow the failure to perform.</p> <p>4. Contracts—Time Essence of Contract.—Parties • may expressly agree, that the time, within which obligations of a contract are to be performed, shall be of the essence of the contract, and if time is not made so by express stipulation, it will be held to be such, if from the nature of the contract, it was so intended.</p> <p>5. Contrcats—Waiver of Time in Performance.—A waiver of time in the performance of a contract may be made by the party for whose benefit the stipulation was made, but, a mere waiver must be supported by a consideration, and intended to be made, with a full knowledge of the facts.</p> <p>6. Contracts—Waiver—Estoppel.—A waiver made without consideration, but, relied and acted upon by the other party to the contract may constitute an estoppel, but, an 'essential element of an estoppel is, that the acts or declarations of the party against whom the estoppel is pleaded, must have induced the other party to act to his prejudice if the estoppel is not sustained.</p> <p>7. Principal and Agent—Knowledge of Agent.—The knowledge of an agent is not -imputed to his principal, when in the transaction, the interests of the agent are adverse to the interests of the principal, and the agent is not .pretending to act for the principal, and the party dealt with has knowledge that the agent is acting for himself and not the principal.</p>

<p>Appeal from Monroe Circuit Court</p> <p>On Motion to Dissolve the Injunction Granted by the Judge of Monroe Circuit Court.</p>

<p>1. Ejectment—Title to Support Action.—If in an action of ejectment the plaintiff’s title is denied and tbe title claimed by him to “the land be one of record, he must pr.ove it by the duly recorded-evidence thereof, deducible from the Commonwealth. However, title, or such ownership of land as will be as good as a paper title of record, may be established by satisfactory proof of the plaintiff or his vendor’s -actual, peaceable and continuous possession of the land, adversely to the defendant and all others, for as much as fifteen years prior to the institution of the action putting the title in issue.</p> <p>2. Ejectment—Title to Support Action.—One cannot acquire title to land owned by another through its purchase and a deed of conveyance from a tenant of such owner in possession of the land, ■in the absence of a renunciation by the tenant of blis tenancy, with notice thereof to the owner, followed by the .tenant’s actual, peaceable and continuous possession of the land, adversely to the owner, his hairs or vendees and all others, for as much as fifteen years before its sale and conveyance by the tenant to his vendee.</p> <p>3. Ejectment—Title to Support Action.—As in this case the appellee claimed title to the land in controversy through mesne eonvey•ances from a remote vendor, to whom it was sold and conveyed by a tenant of the owner in possession, and such sale, according to the evidence, was not preceded by the tenant’s renunciation of his tenancy, nor followed by fifteen years’ actual, peaceable and continuous possession of the land by him and his vendees, adversely to the owner and his heirs at law, before the institution by the latter of this action to recover the land, the ruling of the trlial court in directing a verdict for appellee constitutes reversible error. On the evidence adduced a directed verdict for the appellants would have been proper.</p>

<p>1. Descent and Distribution—Claims'—Pleading.—In an, action brought under section 428, Civil Code, fqr a settlement of , a decedent’s estate, a claimant against a decedent’s estate has a right to set up his claim by a pleading, and if it is' disputed, he has a right to demand that the grounds of defense to his claim’be set out by a pleading, according to section 115, Civil Code, or by an exception to the commissioner’s report, -which 'sets out 'the necessary allegations and denials to constitute a defense. ■ ' •</p> <p>2. ' Descent and Distribution—Claims—Pleading.—In an -action under section 428, Civil Code, for the settlement of a -decedents estate, a creditor who sets up his claim by a pleading or by a 'document, which accompanied the-pleading, and the formal verification .and proof of his claim .is.defectively made, is not subject to have his .pleading dismissed on that account, as he must present a verification and proof of it, 'before the commissioner, as required by section 3870, Kentucky .Statutes, and the section, following, or else his claim yvill not be allowed.</p> <p>3. Descent and Distribution—Pleading—Verification—Waiver.—In 'an action under section 428, Civil Code, for the settlement of a decedent’s estate, if a creditor sets up his claim by a pleading, the other parties to the action, will not admit the averments in the pleading, by a failure to deny them by a pleading, nor win'they waive the verification and proof of the claim required by the statute, by a failure to move for a rule to require', the verification to be made, or by setting it up-in an answer, as they bave ' a right to except to the report of the commissioner, if the claim ‘is allowed, not only on account of the want of proper verification and próof of the claim, but because of its want of merit.</p> <p>4. Descent and Distribution—Pleading.—In an action-for the settlement of a decedent’s estate, under section 428,. Civil Code, where • a creditor sets up his claim by a pleading, and any other party in .interest disputes the claim by a pleading, he will be bound by the ■ rules of pleading, as applied to other actions.</p>

<p>1. Depositions—Exceptions.—An exception to the deposition of a witness, on account of anything, except the competency of the witness or the relevancy of his testimony, will be disregarded, unless the exception is filed and note'd of- record -at the first term of the court- after the deposition is filed. - . ■ .</p> <p>.2. Appeal and Err°r—Finding, of Chancellor.—-Where an action purely at law is- brought and prosecuted as an equitable action,, the decision of the judge upon the issues of fact will be given the same weight' upon appeal, as the verdict of a properly instructed jury, in an action at law.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Appeal from Jessamine Circuit Court.</p>

<p>Appeal from Livingston. Circuit Court.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>1. Trial—Peremptory Instruction.—A peremptory instruction should not be given to the jury where there is a conflict in the testimony and reasonable minds might honestly differ as to the truth or falsity of conclusions and deductions to be drawn therefrom.</p> <p>2. Appeal and Error—Verdict—Evidence.—Where three witnesses for plaintiff testified to facts supporting her cause of action and five or six. witnesses contradict her testimony and that of her witnesses, a verdict for defendant can not be said to be flagrantly against the weight of the evidence.</p> <p>3. Negligence—Contributory Negligence.—Neither the doctrine of imputed negligence nor the doctrine of sudden emergency has any application under the facts in .this case since plaintiff was guilty of the contributory negligence complained of, if any, and there' was no emergency under which plaintiff acted, or, if any, it was not produced or brought about by any act of defendant.</p> <p>4. Highways—Use of Motor ’ Vehicles—Contributory Negligence!— Plaintiff was fifteen years and one month old'at the time she re-, ceived -the injuries from a collision with a,n automobile on a public highway and for which she sued. Held, that under the facts as re-. cited in the opinion the court properly submitted the issue of contributory negligence to the jury and properly said to the jury that ordinary care was that “which is usually exercised under the same or similar circumstances by persons of her age, intelligence and discretion to protect tbemselves from injury."</p>

<p>1. Infants—Estate of Held in Trust—Sale of.—The real estate of infants, held in trust, if sold under judgment of a court of equity, must be sold in the manner prescribed by the Civil Code, in the absence -of a power given in the instrument creating the trust authorizing the trustees to sell and - convey, or except when held as provided by act of April 24, 1882.</p> <p>2. Infants—Sale of Infants’ Real Estate.—The courts are without authority to approve a sale of an infant’s real estate, when made by an unauthorized person or in an unauthorized way.</p> <p>3. Infants—Bale of Infants’ Real Estate.—If the trustee is authorized by the instrument which created the trust to make sale of it, he. ' may do so, and the courts will not interfere with his exercise of the power, if he acts in good faith and with ordinary prudence.</p> <p>4. Trusts—Sale of Trust Property.—If, the instrument creating the trust does not empower the trustee to sell the trust property, he can not do so, but, the chancellor upon application may authorize him to do so, when bn account of change of conditions or circumstances, the capital of the trust fund is' endangered, or its .security weakened, and it has .become to the best, interests of the beneficiaries of the trust to have it sold, except where its sale is regulated by statute.</p> <p>5. Trusts—Sale of Trust'Property.—The power given to a trustee to sell the trust property may be express, or it may be implied from the conditions of the trust or the necessity of a sale to effectuate the trust, or when it is evident that the settlor intended that the trustee should be clothed with the power to sell. ■</p> <p>6. Trusts—Direction to Invest in Lands.—A direction in a trust instrument to the trustee to invest the fund in lands, means- a purchase of lands for cash, not upon credit, unless the instrument gives the trustee power to do so.</p>

<p>Wills—Testamentary Capacity—Undue Influence.-—In an action contesting tlie will of testatrix tbe evidence shows many months before making her will she made up her mind just h,0W’ she desired to dispose of her property and that she carried out -this, purpose completely and entirely in the paper executed. It is manifest from the evidence that she had sufficient testamentary capacity and was not affected by undue influence. .</p>

<p>Wills-—Estate Devised—Precatory Trust.—After devising all of his property to his wife, the testator added the following codicil: “I hereby request of my said wife Sarah J. Gross, who is the sole beneficiary in fee simple of all my estate of whatsoever kind or character, that she arrange at her death that if there be any property left which shall pass to her under my will, that such residue ■ shall be divided into equal parts, one part to. be given to Sallie Pumphrey DeHaven, wife of O. DeHaven, and the other part to be given to my brother, John B. Gross, and his heirs. I hereby declare this to be only a request upon my part I make of my said wife, - and' that, in no wise shall this request be construed as - meaning that I 'am placing any limitations whatever upon the right of my said wife to do as she desires with all of said property, which shall to hers in 'fee simple:” Held,, that no precatory trust was created in, favor of-Sallie Pumphrey DeHaven or John B. Gross and his heirs. 1</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Second Division).</p>

<p>Contracts—Reformation of Rental Contract—Evidence.—In an action to reform a rental,contract, evidence examined and held that the contract expressed the intention of the parties to it, and plaintiff was not entitled to a reformation thereof.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>1. Forcible Entry and Detainer—Acceptance of Rent—Waiver of Forfeiture.—The acceptance of rent in arrears at tbe time notice to vacate the premises is given or of rent accruing after the giving of notice and between the date thereof and the issual of the writ will not waive a forfeiture of the lease nor constitute an abandonment of the forcible detainer proceedings, but the acceptance of rent by the landlord with knowledge of the facts', accruing after the issual of the writ and before the trial thereof, will operate as . a waiver of the forfeiture and constitutes a defense in favor of the lessee.</p> <p>2. Forcible Entry and Detainer—Acceptance of Rent.—But an acceptance of the rent accruing after the forfeiture by an agent of the landlord without a knowledge of the facts with reference to the forfeiture and which is done without the knowledge or direct authority of the landlord will not waive the forfeiture.</p> <p>3. Forcible Entry and Detainer—Waiver of Forfeiture of Lease.— Whether a bookkeeper of a corporation, which is agent of the landlord, whose only duties are to make entries upon the corporation books, has the implied authority to accept rent in behalf of the corporation as such agent and to thereby bind the landlord so as to waive a forfeiture of a lease of his premises, is not determined; but it is held that the payment of the rent to such bookkeeper secretly and without the knowledge of the landlord on the day before ouster proceedings are set for trial under such circumstances as to indicate trickery and fraud will not constitute a waiver of the forfeiture and is not an available defense.</p>

<p>1. Trusts—Resulting Trusts.—By section 2358 of the statutes, resulting trusts are abolished except in favor of one furnishing the consideration where the vendee takes the deeds in'his own name without the consent of the person paying the consideration or in .violation of some trust.</p> <p>2. Trusts—Resulting Tr.usts.—Evidence to establish such a trust must be clear and convincing and if wholly by parol should be received with great caution, especially to raise a trust between husband and wife.</p> <p>3. Execution—Purchaser Under Execution .Sale—-Liens.—A purchaser under an execution sale of encumbered real property obtains only a lien upon same.</p> <p>4. Execution—Sale of Property Under—Panties.—By subsection 5 of section 1709, Kentucky Statutes, courts of equity have control of all encumbered property sold under execution and power to secure the rights of all interested parties, and all such parties are' nécessary parties to a determining of the rights of the purchaser and other claimants of the property or interests therein.</p>

<p>Appeal from Madison Circuit Court.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Appeals from Floyd Circuit Court.</p>

<p>Fraud—Fraud and Misrepresentation.—Plaintiff held not entitled to recover money paid through alleged fraud and misrepresentation where, with knowledge of same, he agreed upon-a given consideration for the purchase of stock in a corporation indemnifying' defendant against any loss he might sustain hy reason of said transaction and suffered judgment in two suits on no,tes arising out of the same matter to go1 by default.</p>

<p>Appeal and Eírror'—Public Officers—Order Removing County Treasurer Not Appeala-ble.—No appeal lies from an order of the fiscal court removing a county treasurer.</p>

<p>1. Contracts—Contract Prohibited by Statute.—Where a contract is prohibited or declared by the statute to be unlawful, before complying with prescribed conditions, until the conditions are complied with, it is void, regardless of the purpose for which the statute was enacted.</p> <p>2. Contracts—License to Engage in Taxed Occupation.—The rule generally prevailing is, that a statute enacted purely for revenue purposes, and which does not prohibit nor declare unlawful the making of contracts, without first having obtained a license to engage in the taxed occupation, nor declares such contracts to be void, does not make void a contract made without first having obtained a license to engage in a taxed occupation.</p> <p>3. Brokers—When < Not Entitled to Compensation.—Where brokers present a prospective purchaser to their employer, and the per- ' son presented is not ready, able and willing to purchase the pro.p- , erty' upon the terms proposed, and thereupon the negotiations cease, and when no negotiations are pending, the employer in good faith and not for the purpose of evading the payment of commissions, withdraws the authority, of the brokers, they are not : entitled to commissions, although thereafter the employer sells the property to the same person presented by the brokers.</p> <p>4. Brokers—Compensation.'—If negotiations are still pending with the prospective purchaser, and the employer in bad faith and for the purpose of evading the payment of the commissions revokes the authority of the broker, and thereafter continues and completes the negotiations with the person presented by the brokers,, they will be entitled to the promised commission.</p> <p>5. Brokers—Compensation.—A broker should be considered the procuring cause of a sale, when he presents a prospective purchaser and upon a failure of the employer and the prospect to agree upon terms and the employer without the consent of the broker, and to evade the payment of commissions, and to benefit by the efforts of the broker, revokes the' broker’s authority and breaks off the negotiations and thereafter makes a sale of the property to the same person, who was procured by the broker.</p>

<p>' Appeal from Perry Circuit Court. ’ ■</p>

<p>Attorney and Client—Agreement to Prevent Prosecution—Public Policy.—An agreement between client and attorney whereby the latter undertook to expend money received of the former to prevent or end a criminal prosecution for a felony pending against him; or to'procure, by their absence or otherwise, a suppression of the evidence of witnesses intended to be used against him in such prosecution, whether before the grand jury investigating the crime or on his trial after indictment, is void as against public policy.. For which reason the failure of the attorney to comply with the terms of the agreement, did not entitle the client to recover of him the money received thereunder. ■</p>

<p>Appeal from Bracken Circuit Court.</p>

<p>Appeal.from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Sales—Objection to Quality of Corn Upon Delivery—Recovery of Difference in Value.—Where one sells to another corn of an agreed quality at an agreed price and the purchaser upon delivery objects to the quality when the seller agreed for another to represent him in the settlement of the dispute concerning the quality and such one acted and agreed upon terms which are subsequently performed by the purchaser, plaintiff can not recover for the difference between the original contract price and that fixed in accordance with the terms agreed to by plaintiff’s agent.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas, Division No. 2).</p>

<p>1. Wills—Attempted Gift Over.—Where the testator’s personalty is given to his widow with unlimited power of disposition and his daughters are devised’whatever, if anything, is left at her death the widow takes absolute title and the attempted gift over is void.</p> <p>2. Wills—When Gift Over Valid.—But where, by the holographic will of an uneducated testator, the real estate is devised to her “in fee simple except” that she can sell same only for reinvestment in other real estate and only so long as she remains testator’s widow, and whatever thereof is left at her death is devised to testator’s daughters, the widow takes only a life estate therein and the gift ■ over to the daughters is valid.</p> <p>3. Wills—-“In Fee Simple”—Construction.—What the testator meant by what he said is his will, and where he has carefully and intelligently explained in detail what he meant by the use of the term “in fee simple” and exceptions thereto, such meaning rather than the technical meaning must be adopted in construing his will.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Casey Circuit Court.</p>

<p>Appeal from Bowan Circuit Court.</p>

<p>1. Divorce and Alimony'—Maintenance—Appeal Prom Order Refusing to Allow Maintenance and Alimony.—-In a suit by tbe' wife for divorce, alimony and maintenance an appeal. may .be taken from an order refusing either.</p> <p>2. Divorce and Alimony—Jurisdiction of Court—Two Actions Pending.'—Where a suit for divorce from bed and board and alimony was brought and the divorce was granted but no disposition was made of 'the question of alimony and this suit was filed away with leave to redocket it, did not bar the institution of a suit for an absolute divorce and alimony brought in another court that had jurisdiction while the first suit was off the docket, although, it might have been reinstated upon motion. The seeond suit would bar a reinstatement on the docket of the first suit.</p> <p>3. Judgments—Res Judicata.-—When a party selects a forum that has jurisdiction of the parties and the subject matter of the action he is concluded by the judgment rendered 'in that forum and cannot open it up or relitigate it in another of concurrent jurisdiction.</p> <p>4. Divorce—Alimony and Maintenance are Incidents of Divorce.— Alimony and maintenance are incidents of suit for divorce and should be sought in.that suit although a separate suit for alimony may be maintained.</p> <p>5. Divorce—Suit for Divorce From Bed and Board Not Bar to Suit for Absolute Divorce.—Where a wife brought a suit for divorce from bed and board in one county and afterwards established a residence in another county and there brought a suit for an absolute divorce, the suit for divorce from bed and board could not be pleaded as a bar to the suit for an absolute divorce.</p>

<p>1. Wills—Burden of Proof on Propounders.—In a will contest case the burden of proof is on the propounders to show the due execution of the will, and if the issue is made that a holographic will was not wholly in the handwriting of the testator and'signed by him with his own name the burden is on the propounders to show that it was wholly in his handwriting and signed by him.</p> <p>2. Pleading—Amendment After Reversal.—When a case has been reversed with directions for a new trial it is within the sound discretion of the trial court to allow an amendment making a new issue that was not theretofore in the case, either in the trial court or the Court of Appeals.</p> <p>3. Appeal and Error—New Trial—When New Issues May Be Put in • Case.—When there has been a reversal ordering a new trial or a new trial has been granted by the lower court ■ the party objecting to the reversal or the new trial may on the second trial put into the case new issues, but the party who obtains the new trial or the reversal will not be allowed to put in new issues on the second trial unless it appears that by the exercise of reasonable diligence he could not have made these issues on the former trial.</p> <p>4. Appeal and Error—New Trial—New Issues Thereafter.—When parties go to trial in the circuit court each should put in the case every cause of action or defense that he desires to rely on, and the one failing to do this cannot, when a new trial or a r'eversal is secured on his motion, thereafter inject into the case a new issue that in the exercise of reasonable diligence on his part might have been disposed of on the first trial.</p> <p>5. Wills—Contest Cases—Amended Grounds of Contest.—Where on the first trial of the case the will was contested solely on the grounds of undue influence and lack of testamentary capacity, and there was a reversal of the judgment breaking the will upon the ground that the evidence did not warrant the verdict and the case was remanded for a new trial the trial court on the second trial correctly permitted the contestants to attack the will on the ground that it was a forgery.</p> <p>6 Appeal and Error—Res Judicata.—When a case is brought to the Court of Appeals the opinion is conclusive of all questions either decided in the opinion or presented by the record and passed unnoticed in the opinion. And it is further the duty of the parties to present on the first trial of the case all of their causes and defenses that by the exercise of reasonable diligence they could have notice of.</p>

<p>1 Attorney General—Deputies, Assistants and Substitutes.—The act of March 20, 1908 (Kentucky Statutes, sections 112-15), vesting in the attorney general charge of all litigation in which the state is interested, including actions to escheat property, repeals so much of prior acts as vested a like power in the auditor of public accounts.</p> <p>2. Attorney General—Deputies, Assistants and Substitutes—Escheat. —Authority of special counsel to institute and maintain a suit to escheat property under a contract with the auditor became inoperative after the passage of the act of 1908, vesting the power of employment of special counsel in the attorney general and the Governor.</p> <p>3. Attorney General—Deputies, Assistants and Substitutes.—Where a suit was instituted under an alleged employment between special counsel and the auditor, contrary to the act of 1908, it was discretionary with the attorney general as to what course he would pursue in regard to the suit.</p> <p>4. Escheat—Eight to Maintain Suit.-—The right to maintain a suit to escheat property instituted under an alleged contract between special counsel and the auditor will be sustained in the absence of a proper showing that it was maintained and prosecuted contrary to the statute where the Governor, attorney general and auditor later sanctioned and approved the suit.</p> <p>5. Attorney and Client—Authority to Institute Suit.-—The defendant in any-suit has the right to question by motion, supported by affidavit, the authority to .institute or prosecute the action. When , such an affidavit is filed the court, in the exercise of a sound discretion, may. require plaintiff’s counsel to show by what authority the suit was brought. Failure to show a sufficient authority to institute the action will justify the court in dismissing it without prejudice.</p> <p>6. Escheat—Property Belonging to'Railroad Company.—In a suit to escheat property belonging to a railroad company and adjacent to its right of way, though held for a periód of more than five years and never used for railroad purposse during that time is not subject to escheat, where it is- shown- that the construction of new tracks is contemplated and that the increased tonnage being . hauled by the -company will necessitate additional tracks at an early date, and it is uncertain how much of the land sought to he escheated will he necessary for this purpose, and the remaining portion of said land can and probably will be used for the purpose of horrow-pits, storage of ties and other equipment, the erection of section houses and other purposes incident to the operation and maintenance of -the railroad.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>Appeal from Harlan Circuit Court.</p>

<p>1. Taxation-—-Inheritance Tax—Gift or Transfer in “Contemplation of Death.”—Section 4281a of the inheritance statute provides that any gift or transfer made in “contemplation of the death” of the grantor shall be subject to the tax, but this does not mean .that every gift is subject to the tax, but only such gifts as are made when the condition of the health of the grantor or the presence of some threatening danger creates a fear that death may be near at hand. And whether this condition exists is to be determined by the facts of each case.</p> <p>2. Taxation—Inheritance Tax—Burden of Proof on Commonwealth.— When it is sought to subject property transferred by gift or deed to the payment of an inheritance tax the burden is on the Commonwealth to show that the gift or transfer was made in “contemplation of death.”</p> <p>3. Statutes—-Inheritance Tax Statute—Construction of.—In the construction of statutes it is allowable to substitute words or add or omit words and to alter the arrangement or structure of sentences or paragraphs when necessary to relieve the statute from absurdity or effectuate the legislative intent. Accordingly the words “widow of a son” in subsection two of section 4281a should read “wife of a son.”</p>

<p>1. Escrows—Delivery.—To. create an escrow tbe delivery of a deed must be to a stranger.</p> <p>2. Deeds—Delivery.—A delivery of a deed to tbe grantee is an absolute delivery and passes title despite a verbal agreement between grantor and grantee tbat tbe deed shall be effective only upon specified conditions.</p> <p>3. Deeds—Surrender and Destruction "of Deed.—Tbe surrender of a deed to grantor and its destruction after title bad passed to tbe grantee was insufficient to reinvest tbe title in .grantor.</p>

<p>1. Boundaries—Location of Lines.—In determining tbe location of a disputed line or corner in an action involving tbe title to land, in case . of doubt, that construction which is most against the party claiming under an uncertain survey should be adopted; and under no circumstances ought a doubtful title to prevail against a clear one.</p> <p>2. Boundaries—Location of Lines.—One claiming title to land under a patent senior in date to a patent under which claim of title to the same land is asserted by an adversary, is bound, as to the location of any line common to both surveys that may be in controversy between them, as it is found to be fixed by his own, the senior patent. No language contained in the junior patent can extend a line oí the senior patent.</p>

<p>1. Appeal and Error—Bill of Exceptions.—It is a fixed rule of practice in this jurisdiction, that when an appeal is prosecuted to the Court of Appeals from a judgment entered upon the verdict of a jury, without a bill of exceptions containing the evidence heard on the trial in the circuit court, the Court of Appeals will conclude that the evidence sustains the verdict and judgment.</p> <p>2. Appeal and Error—Bill of Exceptions.—As the record on which the appeal was taken in this ease does not contain a hill of the evidence heard in the trial court, and the pleadings support the judgment appealed from, it is affirmed.</p>

<p>Appeal from Kenton Circuit Court.</p>

<p>Appeal from Caldwell Circuit Court.</p>

<p>Appeal from Calloway Circuit Court.</p>

<p>Appeals from Caldwell Circuit Court.</p>

<p>1. Carriers—Terminal Facilities.—Both the common carrier whose duty it is to furnish terminal or other facilities and the carrier that actually furnishes them, assume all of the duties of a carrier to a passenger of either With reference thereto, whatever their liabilities to each other by reason thereof.</p> <p>■ 2. Carriers—Contract Between Carriers—Leasor’s Liability.—The contract between carriers for use by one of the facilities :of the other is not conclusive of the leasor’s liability to passengers of the other carrier knowingly permitted to use its transportation facilities.</p> <p>3. Carriers—Negligence—Assault of Drunken Intruder.'—Where one carrier leased its tracks to another, and knowingly permitted the lessee to use its depot for the accommodation of lessee’s passengers who were regularly received and discharged at such depot, the leasor is liable for negligence of its agent in charge of the depot in failing to protect a female passenger of the lessee so using same from assault by a drunken intruder.</p> <p>4. Damages—Excessive Damages.—$1,500.00 not excessive as compensatory damage under the facts of this case.</p>

<p>1. Principal and Agent—Commissions.—In tbis action- by an agent against bis principal to recover commissions for tbe sale of a tract of land, evidence examined and beld that the court did not err in refusing to direct a,verdict for tbe defendant.</p> <p>2. Principal and Agent—Contract for Sale of Land.—A ■written proposition by tbe owner delivered to tbe agent authorizing th'e latter for a limited period to accept a certain price for the land was not a substitute for or termination of tbe prior verbal contract of employment but was only a means furnished tbe agent by which a speedy sale to • tbe prospective buyer was attempted in furtherance of the-agency contract.</p> <p>3. Principal and Agent—Abandonment of Agency.—The mere fact that an agent, employed to sell two farms for different owners, attempted to make a sale of the second farm to one of his prospects after his failure to sell him the first one shown him, is not conclusive if any evidence of an abandonment of the agency to sell the first one.</p> <p>4. Appeal and Error—Instructions.—Where upon the trial of a civil action the party fails to offer an instruction upon a given subject, he cannot upon appeal complain of the failure of the court to give such an instruction.</p>

<p>1. Wills—Mental Capacity.—If a testator has mental capacity sufficient to .take a survey of his property, to know its value, to know the objects of his bounty and his duty to them, and to dispose of his property-according to a fixed purpose of his own, he is competent to make his will.</p> <p>2. Wills—Undue Influence.—Undue influence exercised on the testator so as to -invalidate his will must have been obtained over his mind to such an extent as to destroy his free agency and to constrain him to do against his will what he would otherwise re-: fuse to do, whether exerted at one time or another or directly or indirectly, if it operated on his mind at the time of the .execution of his will; but any reasonable influence obtained by acts of kindness, affection or appeals to the feeling -or understanding, which do not destroy free agency, is not undue influence.</p> <p>3. Wills—Undue Influence—Evidence.—Testimony introduced to establish mental incapacity or undue influence must be something of substance and relevant consequence and not consist in vague, uncertain, remote or irrelevant matter hot carrying the quality of proof or having the quality and fitness to induce conviction.</p> <p>4. Wills—Mental Capacity.-—Opinions of witnesses as to- the mental capacity of a testator unsupported by any fact or circumstance to justify them are not entitled to weight in a proceeding contesting the validity of the wiil.</p> <p>5. Wills—Mental Capacity.—The privilege to dispose of one’s property after death by will, conferred upon the citizen by the statute, is a valuable one of which he should not be deprived upon slight, remote and wholly unsubstantial and non-probative testi1 'mony.</p> <p>6. Wills—Requisites:—-It is a relevant circumstance in 'a will contest proceeding that its provisions are ■ rational, just, fair and equitable.</p> <p>7. Wills—Mental Capacity.—The burden of showing mental incapacity or undue influence is upon the contestant, which must be done by at least testimony of sufficient substance to have probative effect upon the issues involved. Where the testimony clearly shows that testator at the time he executed his will possessed the proper measure of mental capacity for the purpose and that he was not unlawfully influenced to do so, and from the whole record it is apparent that another trial would be both useless and expensive and result in unnecessary delay, this court will direct the judgment to be entered upon a return of the case.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>1. Adverse Possession—Occupancy—Action to Enjoin—Trespass.— In a suit to enjoin trespass where the issue of adverse possession is narrowed to an alleged vacancy of two years, and the proof establishes that during said period the property was occupied by one or more tenants of plaintiff, there being no break in the continuity of possession plaintiff having shown satisfactory- possessory title under the statute is entitled to -the' relief granted.</p> <p>2. Trial—Transfer of Causes.—A motion for an issue out >of chancery and for a trial by a jury, made about a year after the answer was filed, -was- too late, proof having -been taken by the plaintiff in the meantime. Under section 10 of' -the Civil Code it is provided that defendant when he answers may have the cause transferred from equity to the ordinary docket, but this motion should be seasonably made, and it was not an abuse of discretion for the court to refuse to make the transfer on motion made eleven months after answer had been filed.</p> <p>3. Adverse Possession—Action to Enjoin Trespass.—In an action involving the adverse possession of land, where it is shown that plaintiffs’ possession was adverse,-open, notorious, continuous and hostile for the statutory period, and known by the defendants, who claimed as joint tenants to he so, (the possession of plaintiffs is such as entitled them to the relief sought.</p>

<p>1. Wills—Intention of Testator.—To arrive at the meaning of a will, the intention of the testator must be ascertained from the instrument as a whole. If it is explicit and the meaning of the language is involved in no obscurity, rules of construction meant to elucidate and to which, the courts are often compelled to resort, cannot be employed.</p> <p>2. Wills—Powers—Construction.—Where a will bequeathed all the testator’s personal property to his widow “absolutely,” and devised her a life estate in the whole of his real property, with remainder therein at her dea'th to five of his six sons and the children of the sixth son, designating by description a particular tract of land to go at the death of the life tenant 'to each of the five sons and children of the sixth son; and by a subsequent clause of the will an additional tract of land of 133 acres was designated which the widow as executrix of the will was empowered to sell and convey, if necessary to pay the testator’s debts, unless she should, upon the advice of the testator’s children, desire to hold the land and make other suitable arrangements for the payment of the debts. Held, that the exercise of ■the power thus conferred on the executrix to sell the designated land for the purpose indicated, or to retain it, was left by the will to her discretion guided by the advice of the testator’s six ■sons; therefore, a sale of the land by the executrix to one of the testator’s sons for the payment of his debts, made on the advice of the five other sons and by their joining with her in the deed of conveyance, vested in the purchaser a valid title to the land.</p>

<p>1. Attorney and Client—Value of Services.—Attorney fees must be based upon tbe character Of service rendered, the nature and in, por'tance of the litigation, the amount and value of the property in contest; the skill necessary to properly attend to the business, and consideration should be given to the professional standing and skill of the attorney.</p> <p>2. Attorney and Client—Value of Services.—An allowance of $1,000.00 as attorney fee to a guardi-an ad litem in a case involving $12,000.00 or $13,000 in which he did good but not great or laborious service, is unreaso'nably large and should be reduced to $600.00.</p>

<p>1. Appeal and Error—Instructions.—An instruction which is erroneous but not prejudicial to the party appealing is no't ground for a reversal of the judgment.</p> <p>2. Appeal and Error—Instructions.—Although an instruction be admittedly erroneous in that it omits one important element which would put a greater burden upon the appellant, and it does not correctly state the law, it is not prejudicial to the appellant and he is in no position to complain, for the error must be treated as harmless.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>1. Executors and Administrators—Services Rendered to Decedent-Undue Influence—Burden of Proof.—Where a transaction in the nature of a contract is entered into between an aged and feeble person and a younger one, who has care of him, and by which the younger acquires property or things of value, the presumption of undue influence arises, and the burden of showing that the contract was not secured by any improper methods, is cast upon the one claiming under it, but this principle does not render a contract under such circumstances unenforcible, if it appears to be just, prudent and fair and does not exhibit features of unconscionable advantage taken of weakness and old age, and was understandingly and freely entered into.</p> <p>2. Executors and Administrators—Costs—Discretion.—In actions for the settlement and distribution of the estates of deceased persons, the courts have a judicial discretion in regard to costs, and a right to adjudge their payment according to the right of the case.</p>

<p>Pleading—Special Demurrer.—A special demurrer does not lie, unless tbe facts which authorize the special demurrer are stated in the pleading to which the demurrer is offered; if such facts do not appear upon the face of the pleading, the objection must be shown by an answer.</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Franklin Circuit Court.</p>

<p>1. Easements—Private Passway.-—A person is not entitled to a private passway over the lands of another as a mere matter of convenience.</p> <p>2. Easements—Private Passway.—The necessity for the establishment of a private passway means a practical necessity and not one that is absolute.</p> <p>3. Easements—Private Passway.—If an applicant’s outlet to the highway affords him practical access thereto, or can be made so at a reasonable expense, he is not entitled to the establishment of a private way over the lands of another as a necessity.</p> <p>4. Trial—View of Premises by Jury.-—It being discretionary with the court 'whether it will accompany a jury in its v.iew of the premises, ;t is not error for the court to refuse to so accompany the jury.</p> <p>5. Evidence—Photographs.—The failure to permit a photographer to testify and introduce photographs taken by him is not error where the jury has viewed the premises and where the witness was not offered until the conclusion of all the testimony.</p> <p>6. Easements—Private Passway.—A petitioner whose farm fronts 2,000 feet along a- public highway and who is seeking to establish a private passway over the lands of another to said highway must show exceptional facts to justify the conclusion that the necessity therefore exists as contemplated by Kentucky Statutes, vol. 3, section 3779a-l. ■</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>1. Records—Supplying Lost Records.—One can not complain because a lost record is not supplied in the manner provided by sections 3994 and 3995, Kentucky Statutes, when he consented for it to be supplied in the manner it was done or acquiesced therein without objection.</p> <p>2. Pleading—Striking From Record.—A pleading is not properly a part of the record unless filed in open court or, if in vacation, on some rule day and when not filed at either' of those times it is not error to strike it from the files.</p> <p>3. Pleading—Striking From Record—Although a pleading may be properly filed and rightfully in the record it is not prejudicial error to strike it from the files if it contains no facts constituting a cause of action or defense, or if it contains no more than a former filed pleading which inures to the benefit of the one offering it.</p> <p>4. Limitation of Actions—Pleading.-—The defense of limitation must be pleaded by the one relying on it else it will be considered as waived.</p> <p>5. Limitation of Actions—Fraudulent Conveyances.—The limitation period applicable to a proceeding attacking a conveyance of land as fraudulent and made for the purpose of-defeating the grantor’s creditors is five years after the cause of action accrues, and it is deemed to,have accrued upon the discovery of the fraud, but in no case may the action be brought beyond.ten years after perpetration of the fraud.</p> <p>6. Deeds—Fraud and Misrepresentation—-Cancellation.—In this case seeknig to cancel certain deeds conveying land to the wife of the debtor as fraudulent, evidence examined and held sufficient to support the judgment granting the prayer of the petition and ordering a sale of a sufficiency of the land to pay plaintiffs’ debt.</p>

<p>Appeal from Rockcastle Circuit Court.</p>

<p>1. Highways—Obstruction of by Railroads—Construction of Section 4338 of Statutes.—Section 4338 of the Kentucky Statutes defining what constitutes an obstruction of a public road does not apply to the obstruction of a public road by a permanent embankment made by a railroad company on which to lay its track. It contemplates some negligent or temporary or wilful and unnecessary obstruction of the road by trees, logs, fences or other things.</p> <p>2. Highways—-Obstruction of by Railroad—Construction of Section 4350 of Statutes.—Section 4350 of the Kentucky Statutes applies to an obstruction made by building a new railroad across it or an ■additional obstruction made after the road is first built by changing or elevating in some material or substantial way the grade or tracks or embankment or approaches on its right of way.</p> <p>3. Highways—Duty of Railroad in Making a Crossing.—It is the- duty of a railroad company when it constructs a railroad across a public road or when after its construction it makes some material or substantial change or addition that is sufficient in itself to constitute an obstruction to then, put and maintain the public road at the place where it crosses, including approaches' on its right of way, in such condition as will be reasonably sufficient to enable travelers to use the track and approaches with safety and convenience.</p> <p>4. Highways—Railroad Crossing.—The duty of a railroad company does not end with having the crossing immediately on top of the embankment or at the place where the rails and ties are laid in reasonably safe condition for public travel. It extends to the full width of its right of way.</p> <p>5. Highways—Obstruction of—Nuisance.—Where a railroad company builds an embankment for its tracks across a public road and failed to keep the approaches on its right of way in reasonably safe condition for public travel it may be indicted for a nuisance.</p>

<p>Appeal from Payette Circuit Court.</p>

<p>1. Taxation—Corporations—License Tax.—A corporation which is subject to a license tax under sections 4189a and 4214a-l, Kentucky Statutes, is not liable for another license tax; not more than one license tax can be assessed and collected for a given period of a single corporation.</p> <p>2. Taxation—Corporations—License Improperly Paid.—Where two license taxes have been collected of a corporation when only one was due, the auditor need only look at the statutes to determine that only one tax was due, and it is his duty to issue his warrant -for the amount improperly paid in favor of the corporation thus paying the same, even though the state tax commission has attempted to make assessments, for it is not necessary in such case that the auditor should enquire into or review the assessment to determine that money has been paid into the treasury as tax when no such tax was in fact due.</p>

<p>Adverse Possession—Effect of Possession in One County Where a Tract of Land Lies in Two Counties.—Where the boundary of a tract of land lying in two counties is well defined or well marked possession in one county, accompanied by a claim of the whole, will carry with it possession in the other.</p>

<p>1. Deeds—Description—Construction.—A deed conveying the grantoi*s undivided balf of a tract of land, a coal mine situated tbereon, and certain articles of personal property described in tie deed and mentioned therein as then in use in the coal mine, cannot be made to include the grantor’s half of other articles of personal property on* the land not within the description of the personal property mentioned in the deed, nor then in use in the mine.</p> <p>■ 2. Deeds—Parol Evidence.—In the absence of an allegation of fraud or mistake in the execution of a deed, it cannot be contradicted or its meaning added to or varied by the introduction of parol evidence.</p> <p>3. Trial—Instructions.—On the face of the pleadings and under the evidence contained in the record of this case, the instruction given by the trial court directing a verdict for the appellee, was not error.</p>

<p>1. Municipal Corporations—Motor Vehicles—Joint Tort Feasors.— One who is knocked down by an automobile in a public street and is run over by another car before he is able to arise, may maintain an action against both wrongdoers.</p> <p>2. Appeal and Error—Contributory Negligence—Instructions.—It is reversible error to give an instruction on contributory negligence when there is no evidence that the plaintiff was guilty of negligence, either contributory or otherwise.</p> <p>3. Trial—Contributory Negligence—-Instructions.—An! instruction upon contributory negligence which tells the jury t-hat the plaintiff is not entitled to recover if lie was guilty of contributory negligence does not correctly state the law, for one is not barred of recovery by contributory negligence unless "his injury would not have occurred but for such negligence on his part.</p> <p>4. Damages—One Blameless in Extricating Himself From Dangerous. 'Situation.—The law holds one blameless when, in extricating himself from a dangerous situation which he did not create, hut which was brought about by sudden peril, he strikes or injures another, because such acts are considered involuntary and one may do in such emergency the best he can to save himself.</p>

<p>Appeal from Lincoln Circuit Court.</p>

<p>Wills-—Trustee of Express Trust.—A clause of a will, devising all the property of the testatrix “to my beloved husband A for the care and support of my children,” vests the legal title in the husband who holds the property for the use and benefit of the children of the testatrix, and the husband takes no beneficial interest in the property but is the trustee of an express trust.</p>

<p>Appeal and Error—Evidence.—Reversed because there was no competent evidence to support one of the counterclaims, and the issue as to it was erroneously submitted to the jury.</p>

<p>1. Bills and Notes—Payment in Money.—Where a promissory note is an obligation to pay a certain sum designated in dollars and cents, in the absence of an agreement expressed or implied for its payment in some other way, it means a payment in money.</p> <p>2. Bills and Notes—Payment.—If parties, at (the time, a debt is created make an agreement for its payment in a way other than by the delivery of money, a payment in the manner agreed upon will constitute a valid payment.</p> <p>3. Bills and Notes—Payment.—After a debt, to be paid in money, is created, the obligee may accept property or other thing in satisfaction of the debt, and this will be a valid payment, or the parties may agree upon another method of payment, than that expressed in the obligation, and if supported by a valid consideration, it will be enforcible.</p> <p>4. Bills and Notes—Defenses—Parol Agreement.— A parol agreement which is contradictory of and varies and alters the terms of a promissory note, alleged to be made, at the time the note is executed and delivered, will not constitute a defense to recovery upon the note, in the absence of an averment, that the obligor was induced to execute the note by fraud of the obligee, or by fraud of the obligee and mistake of the obligor or by mutual mistake and by reason of which the terms expressed in the note did not express the contract, or that certain agreements were left out of the note, which were intended to be, and which the obligor believed at the time were inserted.</p> <p>5. Pleading—Answer, Set-off and Counterclaim—Caption.—The plaintiff by filing a reply and joining issue with the defendant upon the averments of his answer, waives the Code requirement, that an answer, which contains a set-off or counterclaim, must so state, in its caption.</p> <p>6. Set-off and Counterclaim—Counterclaim.—A counterclaim must be a cause of action, which arises out of the contract stated in the petition as the foundation of the action, or connected with the subject of the action.</p> <p>7. Set-off and Counterclaim—Set-off.—A demand for money, which could be sued upon, before the adoption of the Civil' Code, in an action of indebitatus assumpsit or in an action of debt may be relied upon as a set-off to an action upon a contract, judgment or award.</p> <p>8. Set-off and Counterclaim—Set-off.—A demand, which is fixed, or which may be ascertained by calculation, and which does not require any proof, except that of liability, may be the subject of a set-off.</p> <p>9. Set-off and Counterclaim—Set-off.—A demand, which is so unliquidated, that an action in equity is necessary to liquidate and make it certain, can not be relied upon as a set-off, at least, without an averment of the insolvency, or non-residence of the plaintiff, or some other equitable reason, which will prevent the defendant from securing his just rights at law.</p>

<p>•Appeal from Jefferson Circuit Court (Common Pleas, Third Division).</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Action Upon Verbal Contract—Judgment.—In a suit on account for coal delivered to defendant where the amount due is admitted, a judgment for plaintiff for the sum sued on will be sustained, there being a failure on defendant’s part to prove an alleged verbal, contract for coal deliveries upon which a counterclaim was based.</p>

<p>1. Damages—Tramway Trestle—Negligence.—There is no liability for damages growing out of the erection and maintenance of a tramway trestle over a road used by the public to a person, who while riding in a wagon in broad daylight, upon approaching the trestle stooped to pass under it but miscalculated the space between -the wagon seat and the trestle and was caught between the two and injured.</p> <p>2. Damages—Assumption of . Safe Condition of Roads.—The public are entitled to an unobstructed passageway pver the roads and streets of the Commonwealth, and in the absence of knowledge of any defects or obstructions have the right to assume that the way is in a reasonably safe condition.</p> <p>3. Damages—Defect in Roadway.—A person having knowledge of a defect in a roadway cannot assume it is in an ordinarily good condition and act upon that assumption. In such case the traveler must exercise care and prudence in .proportion to the dangers from the known condition.</p> <p>4. Damages—Contributory Negligence.—The question of contributory negligence is generally for the jury, but this is only true in those cases where the evidence presents a state of facts about which there might be a difference of opinion in the minds of reasonably fair minded men.</p> <p>5. Damages—Defect in. Roadway.—Knowledge of a defect in a public 'way will not prevent the injured person from recovering, where the injury is caused by momentary or temporary forgetfulness of the danger, and his attention is distracted 'by a cause that is adequate to effect that result.</p> <p>6. Damages—Negligence.—Where plaintiff’s mind was not in any wise distracted or her attention diverted from the trestle, but she saw the trestle under which the wagon in which she was riding was passing and merely miscalculated the space between the wagon and the trestle she cannot recover for injuries sustained by her failure to lean forward far enough to avoid striking the trestle.</p> <p>7. Damages—Contributory Negligence—Pleading.—Upon failure to deny an allegation of contributory negligence the latter plea must be taken as true, and no recovery can be had since it stands admitted on the pleadings that the injury complained of was caused by the negligence of the complaining party. However, upon a return of the case for a new trial a reply can be filed controverting this affirmative plea.</p> <p>8. Trial—Pleading^-Waiver.—Defendant by the introduction of its evidence did not waive its right to complain of plaintiff’s failure to file a reply, having saved its right in'a proper manner by a motion for a peremptory instruction.</p>

<p>Appeal from Webster Circuit Court.</p>

<p>Appeal from Rockcastle Circuit Court.</p>

<p>1. Alteration of Instruments—Forgery.—Tbe fraudulent alteration of a deed by erasing tbe name of tbe grantee, after its execution and delivery, and substituting another as grantee is such a fraudulent alteration as to render the deed a forgery and ineffectual to vest any interest in the grantee whose name was fraudulently inserted, and a purchaser from such grantee acquires no greater interest than his vendor and is not entitled to the equities of a bona fide or innocent purchaser.</p> <p>2. Execution—-Sheriff's Deed Made Under.—One relying on a sheriff’s deed made under an execution sale must, in addiiton to producing his deed, -also introduce the judgment or a certified copy thereof upon which the execution issued and such portions of the record as are necessary to establish the jurisdiction of the court over the person of the defendant. If, however, the pleadings do not put in issue the existence of the judgment, no such requirement as to its introduction will he demanded if the party relying on it has properly alleged its existence.</p> <p>3. Execution-Sheriff’s Sale of Land—Pleading.—The pleadings in this case examined, as well as an agreed order controverting certain pleadings, and found insufficient to deny or put in issue plaintiff’s allegation as to the existence of the judgment under which he made his purchase at a sheriff’s sale.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>Appeal from Rockcastle Circuit Court.</p>

<p>Appeal from Perry Circuit Court.</p>

<p>1. Carriers—Delay in Shipment of Livestock—Finding of Jury.—• Sufficiency of Evidence.—In an action for damages due to delay in shipment of livestock, evidence examined and the finding of the jury that there was an unreasonable delay held flagrantly against the evidence.</p> <p>2. Carriers—Delay in Shipment of Livestock—Evidence—Trial— Instructions.—Where, in an action for damages for delay in the transportation of livestock, the evidence showed that under no circumstances could the stock have been transported in time for sale on the 13th, but did show that-a portion of the stock was delivered in time for sale on the 14th, and another portion too late for sale on that day, plaintiffs were not entitled to recover damages for any decline in the market between the 13th and 14th, but the evidence and the right of recovery should have been confined to the decline in the market from the 14th to the 15th, and to the cattle which arrived on the 14th too late for sale on that day.</p> <p>3. Depositions—Notice—Sufficiency—Motion to Suppress.—A notice ■that “the defendant is hereby notified that the plaintiffs will on the 26th day of December, 1918, if not on the 26th day, then on the 27th day of December, 1918, if not on the 27th day, then on the 28th day of December, 1918, attend at the following places, to-wit: At the office of J. S. J. C. Co., National Stock Yards, East St. Louis, 111., and take the depositions of J. S. J., L. B., H. J. M. and F. B., and at the office of S. L. C. Co., National Stock Yards, East St. Louis, 111., and take the depositions of C. S. and C H., and at the office of S. & V. L. C. Co., National Stock Yards, East St. Louis, 111., and take the depositions of W.- S. and C. H.; the taking of said depositions will not be at the time but in rotation at one place after the other and each and all of said depositions are to be read in evidence on the trial of the above styled action,” is not sufficient and a motion to suppress the deposition should have been sustained.</p>

<p>1. Appeal and Error—Trial—Burden of Proof.—Whether or not the trial court erred in its ruling in this case that the burden of proof was on the plaintiff (appellee) is a question to be determined on appeal, by applying to the issue or issues made by the pleadings the test supplied by the Civil Code, sections 6-25-526, the first declaring: “The party holding the affirmative of an issue must produce the evidence to prove it;” the second that: “The burden of proof in the whole action lies on the party who would be defeated, if no evidence were given on either side.”</p> <p>2. Appeal and Error—Trial—Burden of Proof.—As in this case the allegations of the petition sufficiently, stating a cause of action for damages, resulting from the appellant’s breaking of a contract for the purchase of two car loads of oats shipped him by appellee, were specifically denied 'by the first paragraph of appellant’s answer, the further defense set up in a second paragraph of the answer that he purchased of apellee by sample, oats other than those shipped him, did not entitle appellant to assume the .burden of proof, or his counsel to close the argument to the jury; therefore, the ruling of the trial court in refusing him the burden of proof and giving it to appellee, was not error.</p> <p>3. Appeal and Error—Pleading—Breach—Damages.—If the case had been submitted to the court on the pleadings, or had gone to the jury without any evidence to sustain the averments of the petition, judgment or a directed verdict must have resulted for the appellant; for in either' event, on the issue made by the answer’s specific denials, in the. first paragraph, of the allegations of the petition as to the contract, its breach and the consequent damages claimed, the appellee, in the absence of proof to support the contract of sale, its breach and the damages sustained as alleged in the petition, would have failed to recover.</p> <p>4. Appeal and Error—Evidence.—Where, as in this case,' the evidence is so conflicting that a verdict for either party could not be said to be unsupported by nor flagrantly against the evidence, the trial court' should not disturb it.</p> <p>5. Appeal and Error—Instructions.—The objections of appellant to the instructions of the trial court are without' merit, as they in substantially correct language and with commendable brevity advised the jury of all the law of the case.</p>

<p>Appeal from Harlan Circuit Court.</p>

<p>1. Beneficial Associations—Unenforceable Certificate.-—A beneficial certificate in a mutual secret society which contains a clause at the head of the certificate, “payments to cease after 20 years,” .but by the terms of which certificate each member is required to pay dues so long as he remains a member of the order, and it appears that benefits are paid and can be paid by the organization only through the collection of such dues, and each member is dependent upon the payment of dues by others for the insurance which his certificate guarantees, the “pay-, ment to cease clause” is unenforceable.</p> <p>2. Beneficial Associations—Ultra Vires.—The officers of a mutual benefit association who without constitutional authority, prints on the face of the benefit certificate or policy of insurance, a clause “payment to cease after 20 years,” can not bind the society by such clause, for their act in placing it on the certificate and the act of the society in issuing the same is ultra vires.</p>

<p>1. Appeal and Error—Necessity of Bill of Exceptions.—Where no bill of exceptions accompanies the record this court will only determine whether the pleadings support the judgment.</p> <p>2. Insurance—Guaranty and Indemnity Insurance—Bond.—Where a construction bond specifically provides that the guarantor shall not be liable for any delay occasioned by a third party failing to perform a certain part of the work before the work contemplated by the bond is to be commenced, and it is conceded that the third party wholly failed to perform the condition precedent, no cause of action accrues on the bond. ' ,</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Appeal from Muhlenberg Circuit Court. : ■'</p>

<p>Appeals from Henderson Circuit Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>1. Mines and Minerals—Breach of Contract—Pleading.—Where plaintiffs’ rights under a contract with A. to coal from their mines were protected by a clause in a later contract between A. and defendant but which did not clearly define their rights, the court did not err in permitting defendant, in a suit by plaintiffs for breach of the provision inserted in the later contract for their benefit, to plead the original contract between plaintiffs and A. to show the extent of their rights under the later contract and that defendant had fully complied with' same.</p> <p>2. Mines and Minerals—Contracts—Damages.'—Evidence examined and held that plaintiffs’ rights to coal mined by defendant under the contract sued on were limited to the 15 acre tract of land owned and operated by A. when it contracted with plaintiffs and later sold to defendant, and that the damages awarded are sufficient to cover the actual pecuniary loss sustained by any breach of the contract.</p>

<p>Appeal from Bourbon Circuit Court.</p>

<p>1. Master and Servant—Assumption of Risk—Contributory Negligence.—If the work being performed and the place where it is done are not necessarily dangerous and are so simple that any person of ordinary intelligence can readily see and understand . the dangers attendant upon its performance the master is not liable for an injury to his servant who possesses ordinary intelligence for any injuries sustained, since the injury is one assumed by the servant or was produced by his contributory negligence, dependent upon the facts.</p> <p>2. Master and Servant—Inspection—Assumption of Risk.—If the servant is at work under the immediate inspection of the master and in obedience to his specific directions and according to a method which he adopted, the servant will not assume the risk, unless the danger was so obvious as that an ordinarily prudent man would not undertake it; and whether this be true is ordinarily a question for the jury, but where the facts are uncontradicted and clearly established that no reasonably prudent man would undertake the work though supervised and directed by the master, it is within the province of the court to direct the jury accordingly.</p> <p>3. Master and Servant—When Master Not Liable for Injuries to Servant.—Where the master does not direct the method of performing the work and there is a safe and unsafe way of performing it and the servant of his own volition chooses the unsafe way the master will not be liable for any injuries sustained.</p> <p>4. Master and Servant—Assumption of Risk.—The doctrine of assumed risk does not apply where the inevitable consequences of the work are to render the place unsafe.</p> <p>5. Master and Servant—Assumption of Risk.—The plaintiff was engaged in digging up a stone gate post and after he removed the dirt from around it, it fell and caught him between the post and the bank of the excavation which he had made and injured him. Held that the employer was not liable because (1) the servant selected his own method of removing the dirt from around the post and (2) the work in hand was so simple that an ordinarily intelligent person would comprehend the dangers incident to • its performance.</p>

<p>Appeal from Rockcastle Circuit Court.</p>

<p>1. Negligence—Children—Duty of Property Owner to Trespassing Children.—If a person knows that young children are in the habit of playing on his premises it is incumbent upon him to exercise care commensurate with the danger to which they may be exposed to protect them from dangerous places or instrumentalities on the premises.</p> <p>2. Children—Negligence—Care to be Exercised to Protect From Electrical Appliances.—If there are on premises where children with the knowledge of the owner habitually play heavily charged electrical fixtures or wires the owner of the premises is under a duty to exercise the highest degree of practicable care to protect such wires or appliances so that the children will not be injured by coming in contact with them.</p>

<p>A Drains—Drainage Commissioners—Pleading.—An allegation that plaintiff is a corporation created by and under the laws of the state of Kentucky, with power to sue and be sued in its corporate name; that it is given general charge and control over the drainage matters in Ohio county, giving the personnel of the board, and that they were regularly appointed, accepted, qualified and acting as members of said board, is a sufficient allegation of incorporation.</p> <p>2. Drains—Injury to Drainage Ditch—Action ' for Damages—Defenses.—In a suit to recover damages for injury to a drainage ditch caused by the presence of slack and other refuse from defendant’s mine, it is no defense that the mine from which the material comes does not abut the ditch.</p> <p>3. Drains—'Restoration of Ditch—Expenses.—Any landowner or his servants or agents whose negligence makes repairs necessary to any improvement established under Kentucky Statutes, section 2380, subsection 41, may be required to pay the expense incident to the restoration of the ditch to its previous condition; it matters not that said person does not own land abutting the ditch.</p> <p>4. Drains—Drainage Districts—Public Corporations.—Drainage districts are not municipal corporations but are public corporations having not only the powers conferred by the statute but powers incident to ®ucih. corporations, including, among others, the right to maintain an action for damages to°a ditch under their control.</p> <p>5. Eminent Domain—Public Use—Compensation.—Private property can not be taken for public use without compensation, but if the injury complained of is only incidental to the legitimate exercise of governmental powers for the public- good, then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution.</p> <p>6. Eminent Domain.—Public Use—Compensation—Police Power. The clause prohibiting the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquility of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. The legislature may make police regulations although they may interfere with the full enjoyment of private property and though no compensation is given.</p> <p>7. Nuisance—Action for Damages—Limitation of Actions.—A pile of slack is not of such a character or of such permanency as to necessitate the filing of am action for damages for injury resulting from’ its maintenance within five years after its erection or completion.</p> <p>8. Drains—Purpose of Districts1—Construction of Act.—Drainage districts are established for the purpose of making the area affected healthful, fit for habitation and to improve the fertility of the soil, and the provisions of the drainage act should be liberally construed, so as to carry into effect the true intent and meaning thereof and to promote the leveeing, ditching, draining and reclamation of wet, swampy and overflowed land-.</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Hickman Circuit Court.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>1. Adverse Possession—Possession Not Alone Evidence of.—Tbe bare, possession of land, though actual, is not alone, evidence of an adverse holding, because the possession is always presumed to be subservient to the title of the legal owner.</p> <p>2. Evidence-—'Statement of Acts Done by One Deceased.—Under section 606, subsection 2, one may testify, for himself concern-' ing verbal statements of or acts done or omitted to be done by one who is dead, when the testimony is offered to be given, when the offered testimony is only for 'the purpose and to the extent, it affects one, who is living and when over fourteen years of age and of sound mind heard such statement, or was present when such act was done or omitted to be done.</p> <p>3. Witnesses—Competency.—A party is a competent witness, unless all the adverse parties are parties against whom he could not testify, if they were suing or had been sued singly.</p> <p>4. Adverse Possession—To .Create Title By.—To create title to land by adverse possession, it must be shown 'that the claimant had actual, open, notorious, exclusive and adverse possession for the statutory period.</p> <p>5. Adverse Possession—Actual Possession.—An actual possession ■of land is such a possession as, in general, indicates an exclusive ■ownership, and is usually shown by a residence thereon, an inclosure of a portion of the lands, or their cultivation, or at least in every instance such use of the lands as is practical and such use as such lands are ordinarily subjected to.</p> <p>6. Adverse Possession—Actual Possession.—An adverse possession of lands by a claimant is the taking of actual possession and holding them with the purpose to take and hold them as his own to the exclusion of iall others.</p> <p>7. Adverse Possession—Actual Possession.—When one takes actual possession of a well defined boundary of land, under an unqualified parol gift, his holding to the boundary of the lands is presumed to be adverse to the title of the donor, whether or not all the lands’ embraced in the boundary are enclosed or cultivated.</p> <p>8. Adverse Possession—Actual Possession—Parol Gift.—One in ■actual possession of lands, under a parol gift, where the boundaries are not well defined, is only in the actual possession of such portions of the land, as he incloses or cultivates, and he has no actual possession by construction, of any other portion.</p> <p>9. Adverse Possession—Limitation of Actions.—Where one is in actual possession of a boundary of land under a parol gift, and the statute of limitations has not yet ripened his adverse possession into a title, the owner or -his heirs may enter and arrest the running of the statute but such entry must be accompanied with the purpose to repossess the lands, and with an express declaration to that effect or such acts as will notoriously manifest the purpose of so doing.</p> <p>10. Adverse Possession—Cutting Timber—-Trespass.—An occasional entry for the purpose of cutting timber will not of itself disturb an adverse possession, nor will a mere trespass' with force upon the personal property of the occupant have that effect.</p>

<p>Fraud—Fraudulent Conspiracy—Sufficiency of Evidence—Question for Jury.—In an action to recover damages for tbe breacli of a contract to purchase tobacco, evidence that there was a fraudulent conspiracy between the plaintiffs and defendants’ agent, through whom the purchase was made, to cheat and defraud defendants, held insufficient to take the case to the jury.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First.Division).</p>

<p>Appeal from Trigg Circuit Court.</p>

<p>1. Deeds—'Condition Subsequent.—A clause in a deed preventing tbe alienation of real property during the lifetime of the grantor creates a condition subsequent and as such is valid.</p> <p>2. Deeds—Termination of Estate.—Where, notwithstanding a provision in a deed that the property is not to be conveyed during the lifetime of the grantor, the grantee undertakes to convey same, after which the grantor not only takes possession of the land but cultivates it and otherwise exercises the right of ownership ■over it, and then conveys ithe boundary to another, these acts sufficiently manifest an election on his part to terminate the estate.</p>

<p>Appeal from Trigg' Circuit Court.</p>

<p>1. Insurance—Cbose in Action and Contingent Asset.—A fire insurance policy is a .cbose in action and a contingent asset in tbe bands of tbe personal representative of ithe deceased insured wbicb becomes absolute upon tbe happening of tbe contingency insured against, in which event it is the duty of tbe personal representative to collect tbe loss either with or without suit; unless it is otherwise provided in tbe policy or by statute.</p> <p>2. Executors and Administrators—Legal Representatives.—The term “legal representative” primarily and ordinarily imports the same as the term “personal representative” unless the context or conditions under which it is used indicate a different meaning.</p> <p>3. Executors and Administrators.—How CotExecutors May Act.— Each co-executor or co-administrator may act, with respect to the representation and management of the decedent’s estate, independently of the other, since they are regarded in law as one person, and each of them has tbe right to receive and collect debts due the estate as well as to pay debts owing by the deceased, and bis authority is ’ not taken away because a settlemenlt toas been made, since ttoe right to act continues as long as there are fiduciary duties to perform.</p> <p>4. Executors and Administrators—Collection of Insurance.—Ttoe right of ttoe representative of ttoe deceased to collect for a loss under a fire policy occurring after ttoe death of ttoe insured is not affected by ttoe question as to who is entitled to ttoe collected proceeds, since ttoe right to collect exists independently of the beneficial interest in ttoe sum collected.</p>