filed an answer denying its allegations, and pleading the former judgment in bar of the petition in so far as it set out facts going to show that he had recovered more than was coming to him in the former case. On final hearing the court dismissed the action, and Burnside appeals.

The proof wholly fails to show fraud or collusion between Gilbert and Mrs. Mealer. It tends to show there was some usury embraced in the judgment, but an action to recover usury must be begun in one year after it is paid. This action was not brought in time for that purpose. The fact that when Gilbert, for her accommodation, had indulged her on the debt, she did not set up in the suit the technical defense that he had not demanded his debt, properly verified, in one year after the personal representative qualified, is no evidence of fraud, as the demand may be waived. The statute was only aimed for the protection of the estates of deceased persons from interests or claims not demanded of the personal representative, and, where he knows of the debt, he may waive the demand. This waiver may be express, or may be implied.

The mortgage executed by Mealer and wife purports to convey the entire tract, including all interests they had in it. The clerk's certificate shows they signed and acknowledged the instrument as their act and deed. The fact that he adds to the certificate the words, "Homestead and dower being relinquished by E. J. Mealer," subtracts nothing from the effect of the mortgage, which passed the entire title, and which they acknowledged and delivered as their act and deed. These words mean only that she relinquished homestead and dower in addition to acknowledging the instrument as her act and deed. The certificate considered in Sutton v. Pollard, 16 S. W. 126, 13 Ky. Law Rep. 85, was of wholly different tenor. The only thing the wife there did, according to the certificate, was that she relinquished her dower. The presumption that she consented, when examined separate and apart from her husband, to the conveyance of the property as set out in the mortgage, was there overthrown by the certificate. But here the certificate is in due form, and the words quoted must be understood as added to show that it was not only a joint conveyance of the property, but that she released also her dower and homestead.

Judgment affirmed.

SOUTHERN RY. CO. IN KENTUCKY ▼. RAILEY BROS.

(Court of Appeals of Kentucky. May 10, 1904.)

CARRIERS-LIVE STOCK-TIME OF SHIPMENT-IMPLICATION OF REASONABLENESS-EVIDENCEADMISSIONS OF AGENT-QUESTIONS FOR JURY -CAUSE OF DAMAGE.

1. In an action against a carrier for injuries to live stock, where various theories of the cause of the sickness of the animals were sub

mitted to the jury, there being evidence sufficient to establish that the efficient cause was the negligence of the carrier, a finding that such was the cause of injury was decisive, although the evidence did not establish beyond a reasonable doubt, and to the exclusion of any other of the suggested causes, that such negligence was the cause of the injury.

2. Where a written contract for the shipment of live stock, as expressed in the bill of lading, contains no stipulation as to the time within which the stock is to be delivered, the law implies a reasonable time, and the undertaking is broken if unusual delays occur, unless the carrier shows that the delay was caused by something beyond its control, or was unavoidable, or was a necessary incident to the prudent and proper management of its business.

3. Where a written contract for the shipment of live stock, as expressed in the bill of lading, contained no stipulation as to the time within which the stock was to be delivered, a statement of the depot agent as to the time within which the stock would be delivered was competent as an admission of the carrier's agent having the matter in charge, at least to show what was the ordinary and reasonable time for the shipment.

Appeal from Circuit Court, Woodford County.

"Not to be officially reported."

Action by Railey Bros. against the Southern Railway Company in Kentucky. From a judgment for plaintiffs, defendant appeals. Affirmed.

Wallace & Harris, for appellant. D. L. Thornton, for appellees.

O'REAR, J. In this action judgment was rendered upon the verdict of a jury awarding appellees $1,920 in damages on account of the alleged negligent delay in the shipment of 17 head of horses from Railey station, in Woodford county, Ky., to Chicago, Ill., it being alleged that the horses, by reason of the delay and negligent exposure by appellant, contracted colds, and were diminished in value to that extent. The shipment was made in the latter part of April, 1901. The horses had been prepared with much care and pains for sale at Chicago. They had been trained and carefully groomed and put in condition through the winter months. They were saddle or combined horses. The bill of lading or contract of shipment provided for the carrying of the car of stock from Railey station to Louisville by appellant, there to be delivered to a connecting carrier. On account of the delay, which is unexplained, or, at least, not satisfactorily explained, the car of stock did not reach Louisville in time to make connection with the regular outgoing train, which should have taken it out had it arrived at the time scheduled. Owing to a drawhead in the car being out of repair, it had to be replaced at Louisville. This further delayed the delivery of the car to the connecting carrier. Although the parties had agreed for a reasonable delay within which this drawhead might be repaired at Louisville, appellees having selected this particular car, an Arms palace

2. See Carriers, vol. 9, Cent. Dig. §§ 920, 922.

horse car, not owned by appellant, yet there was proof to show that the repairing was not done within a reasonable time, and that the car was thereby unnecessarily further delayed. There was also evidence tending to show that in doing the work appellant's car repairers left the doors open an unnecessary length of time, so that the horses were chilled. It was proven that on that day the weather was freezing at Louisville, being cloudy, windy, and snowing. The person in charge of the horses testified that on the following morning they developed symptoms of cold and influenza, refusing to eat or drink-indeed, being so swollen about the throat that many of them were not able to. They continued to grow worse until they reached Chicago. Their condition was such that the sale was postponed for quite a while, and some of the horses were so reduced in value as to entail considerable loss upon the own

ers.

Ap

Appellant contends that it was not shown where or how the horses contracted the colds; that they had been blanketed and kept in warm stables all the winter; that they were walked over frozen ground from the stables to the car the day they were shipped, and that they might have caught the cold in that way, or that they might have contracted cold because of the sudden and radical change in the weather, and especially as they went north after leaving appellant's line of road, and not at all because of any negligence or fault of appellant. These matters, however, were all for the jury to determine. The facts were elaborately testified to by witnesses. Various theories as to the cause of the sickness were submitted to the jury. It was for them to determine under the facts whether it was caused by appellant's neglect in delaying the shipment and leaving the car doors open as stated. That such might have been the cause is not seriously denied. pellant contents itself with claiming that either of the other theories suggested might also have been the cause, and that the verdict of the jury must have been speculative. Whether one cause or another, both or all of which have been proven as existing, led to a given result, is a question of fact to be determined under all the evidence. The cases of Hurt v. L. & N. R. R. Co., 25 Ky. Law Rep. 755, 76 S. W. 502; Louisville Gas Co. v. Kaufman, Straus & Co., 20 Ky. Law Rep. 1069, 48 S. W. 434; Id., 105 Ky. 131, 48 S. W. 434-are relied on, with other cases of the same import. In the Hurt Case it was said: "It is not enough to show merely that the plaintiff sustained his injury while in the service of the master. Where the circumstances attending the injury show nothing as to the real cause, but leave it to conjecture whether it was the negligence of the master, the fault of the injured servant, or unaccountable accident, there is a failure of proof. The cause of the injury must be proved. Unless it is shown affirmatively, there can

be no recovery." And so say we yet. There is a marked distinction between failure of proof and conflict in proof. Here there was a showing as to the cause of the injury. Like every other disputed fact, it must be determined by the jury under all the evidence. This court has never said, nor are we aware that any authority is to be found, that, before a carrier can be held liable for injury because of its alleged negligence, such negligence must be proved to be the cause of the injury to the exclusion of a reasonable doubt. But the rule is that if, from the preponderance or weight of the evidence, the jury can find that the efficient cause of the injury is the carrier's negligence, instead of the negligence of some one else, or instead of a mere accident, then the plaintiff's case for recovery is made out.

Appellant contends that as the written contract, the bill of lading, did not provide within what time the stock was to be carried, it was improper to admit evidence to the jury proving statements by appellant's depot agent at Railey station assuring appellees that the car would be delivered at Chicago, or could be delivered there, within so many hours. It is argued that this evidence was in effect the enlarging of a written contract by parol testimony. It is not claimed that the writing contained anything on this point. It was therefore implied that appellant would at least use ordinary diligence in transporting the stock. The statement of the depot agent was at least competent to show what was the ordinary and reasonable time within which the shipment could be made. It was a statement made by appellant's agent having the transaction in charge, and in the course of the transaction, and operates as appellant's admission of such fact. Where an extraordinary and unusual delay occurs in the shipment under such contract, the implied undertaking in the writing is broken, unless the carrier shows that the delay was caused by something beyond its control, that it was unavoidable, or that it was a necessary incident to the prudent and proper management of its business as carrier of passengers and freight. We are of opin ion that the evidence was relevant. The instructions fairly present the matters at issue to the jury. There was evidence to support the verdict upon all points.

Perceiving no prejudicial error, the judgment is affirmed, with damages.

INGRAM v. ISON.

(Court of Appeals of Kentucky. May 10, 1904.) DEEDS -CAPACITY OF GRANTOR-INFANCY-ESTOPPEL-RATIFICATION.

1. Where, at the time of the execution of a deed by an alleged infant, he was, at most, not more than a month under 21 years of age, was a married man with two children, and the wearer of a full beard, and both he and his mother,

¶ 1. See Infants, vol. 27, Cent. Dig. § 39.

at the time the deed was executed, represented him to be of age, he was estopped to thereafter claim the right to have the same set aside in equity on the ground of infancy.

2. Where, after an alleged minor grantor had arrived at age, he rented the land from the grantee for two successive years, he thereby confirmed the deed.

Appeal from Circuit Court, Letcher County. "Not to be officially reported."

Suit by Leander Ingram against Philip Ison to set aside a deed. From a decree in favor of defendant, plaintiff appeals. Affirmed.

D. D. Fields and S. B. Dishman, for appellant. Ira Field, D. Hays, and Salyer & Baker, for appellee.

SETTLE, J. On September 6, 1896, the appellant, Leander Ingram, sold and conveyed to the appellee, Philip Ison 100 acres of land in Letcher county for $100. The deed was duly accepted and put to record by appellee, the possession of the land immediately delivered to him, and the consideration mentioned in the deed paid to appellant. July 12, 1901, this action was instituted by appellant to set aside the deed and recover the land, upon the ground that he was under 21 years of age at the time of the sale of the land and the execution of the deed. It was also averred in the petition that the consideration for the conveyance was grossly inadequate, and that the land was worth three times the amount paid for it by the appellee. The answer of appellee denied the averments of the petition as to infancy, and gross inadequacy of price, and averred that appellant, at the time of the sale and conveyance of the land, represented to appellee that he was over 21 years of age, that it was known to appellee that he was a married man and the father of two children, and that he then wore a full beard, and in every way appeared to be over 21 years of age. The answer also averred that appellee in good faith believed, when he purchased the land and accepted the deed, that appellant was 21 years of age, and was induced by the latter's representation that such was his age to enter into the contract and take the deed; and, further, that, if appellant was not in fact over 21 years of age at that time, he is, by reason of his false and fraudulent representations that such was his age, estopped to deny or repudiate the sale and conveyance to appellee. That appellee had in good faith made valuable and lasting improvements upon the land, whereby its vendible value was increased, and, to the end that he might recover the added value thus given the land if the chancellor should see fit to set aside the conveyance, the answer was made a counterclaim and set off against the appellant. Α reply was filed by appellant traversing the affirmative matter of the answer, and later appellee filed an amended answer, in which it was averred that appellant, after he arrived at 21 years of age, ratified the sale and conveyance of the land made to appellee during his minority by renting the land of appel

lee two years in succession. To this amendment no reply was filed, and no order taken controverting it of record.

We find from an examination of the record that the evidence is conflicting as to appellant's age at the time of the sale and conveyance of the land. It, however, appears from his proof that he lacked only a month of being 21 at that time. Much of the evidence strongly conduces to show that he had then attained his majority, and it is admitted that he was a married man with two children, and the wearer of a full beard. If the determination of the rights of the parties were made to rest upon the matter of his age at the time of the conveyance, it must be confessed that a correct solution of that question would be difficult under the evidence. There is, however, no doubt from the evidence that both the appellant and his mother, at the time of the execution and acknowledgment of the deed, represented to the appellee that he was 21 years of age, and there is no proof whatever tending to show that appellee had information from any source that he was under that age. In fact, it appears from the evidence that the appellee never had any information that appellant claim ed to be under 21 at the time of making the conveyance until about a month before the institution of this action. We are of opinion that the chancellor did right in dismissing appellant's action. He was not entitled to the relief sought. In Schmitheimer v. Eiseman, 7 Bush, 298, it was held by this court, in a case where an infant feme covert was seeking to set aside a deed that she and her husband had made to one who had been induced, by their false representations that she was 21 years of age, to purchase her land, that a court of equity could not grant the relief sought. In discussing the question, the court in the case supra said: "Neither infancy nor coverture can excuse parties guilty of fraudulent concealment or misrepresentation, for neither infants nor femes covert are privileged to practice frauds upon innocent ones. In this case the conveyance is only voidable; the contract is fully executed. Appellee asks only to left in the undisturbed possession of property for which he has paid a fair and full consideration. The chancellor could give no relief without making himself a party to her iniquitous and fraudulent conduct. * * *" In the case at bar the appellee is not asking as against an infant the specific performance of an unexecuted contract. The contract is an executed one, which the alleged infant is seeking to avoid four years after it was made, and as he does not appear with clean hands he was not entitled to relief. The evidence shows beyond doubt that the price paid by appellee for the land was its fair value at the time, and no claim can be made of unfair dealing on his part in the contract with reference to the land.

Furthermore, the judgment should have gone for appellee in the court below upon the

ground that appellant, after the conveyance of the land and attaining his majority, ratified the sale and deed by renting the land of appellee, thereby recognizing his right and title to same. In Hoffert v. Miller, 86 Ky. 574, 6 S. W. 448, it is said: "The deed of an infant conveying real estate, where any valuable consideration passes to him, is, as well settled by this court, not absolutely void, but voidable merely, and he has an election after his disability to affirm or avoid it. To confirm, it is not indispensable that he should reacknowledge the first or execute a new deed, but he may do so after full age by an act in pais, and there must be some positive act or words of the minor from which his assent of the deed executed during his minority may be inferred." The renting of the land by appellant from appellee two years after his reaching full age was hardly less positive in its ratification of the conveyance theretofore made in infancy than would have been a writing confirmatory of appellee's title.

*

2. Where a will directed that, if a trustee therein appointed should fail or refuse to serve, the court should appoint a successor, and that all the real estate involved in the trust should be sold whenever it would bring a fair price, and the proceeds invested in such way as the trustee might think best, the power to sell was not limited to the trustee named, but a successor appointed by the court had like authority. 3. Where a testamentary trustee was authorized to sell the trust property whenever it would bring a fair price, he had authority, in the absence of any limitation by the court, to sell the property at private sale, without obtaining leave of the court or advertising the sale.

Appeal from Circuit Court, Shelby County. "Not to be officially reported."

Action by Bertie N. Cox against the Shelby County Trust Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Gilbert, Gilbert & Harrison, for appellant. J. C. Beckham & Son and Willis & Todd, for appellees.

NUNN, J. On the 18th day of June, 1879, Fielding Neal made and executed his will, which, after his death, was duly probated in the Shelby county court. That part of the will having application to the questions involved in this litigation is as follows: "After my debts and funeral expenses are paid, I give unto my beloved wife Bettie Neal

one third of all my property, both real and personal, during her life, and at her death the amount so given to her is to go to my grand-daughter Bertie Neal Amis. I bequeath unto my said grand-daughter, Bertie Neal Amis, two-thirds of all my estate in trust for the sole and separate use of my said grand-daughter, Bertie Neal Amis, during her life. In case my said grand-daughter should marry, then the said estate is to be held, by the trustee hereinafter named, in trust for her, and, in addition to that, is to be held free from the use, control and the liabilities of her husband; upon the death of my grand-daughter, Bertie Neal Amis, it is my will that the estate hereby willed to the said Bertie Neal Amis shall go to her children, if she have any, and if she should die without issue and before she is of age, then in that event it is my will that the estate so devised to her shall be equally divided between the children of my three children, namely, James Neal, Richard and Oakley Neal. I appoint A. P. Corrithers executor and trustee, and require that he give good and sufficient security, and should the said A. P. Corrithers fail or refuse to serve, it is my will that the court of competent jurisdiction appoint some suitable person in his place; in this event, bond should be required by the court. It is my will that all my real estate shall be sold whenever the property will bring a fair price, and the proceeds be invested in such a way as the trustee may think best." Appellant is the Bertie Neal Amis mentioned in the will, she having married W. E. Cox in the year 1893, and by whom she has two or three living children. Corrithers qualified both as trustee and executor under the will. When appellant became the wife of W. E. Cox, he qualified and executed bond as her trustee, and acted as such until the fall of 1897, when he resigned, and the appellee trust company was appointed in his stead. The order of court with reference thereto is as follows: "The resignation of W. Ewing Cox, trustee of Bertie Amis Cox, is now accepted, and he is released from all further liability and duty as such trustee, except as shown in this judgment for the above sum. And then the court, upon its own motion, appointed the Shelby County Trust Company trustee of Bertie Amis Cox, under the will of Fielding Neal, to take, hold, and manage the estate held in trust for Bertie Amis Cox under the will of said Fielding Neal." The property devised to Mrs. Neal, the widow of the testator, and appellant, was divided between them soon after the probation of the will, appellant receiving in the division, as part of the devise to her, a valuable farm, consisting of 530 acres, which is the subject of this controversy. Appellee trust company, on the 14th day of October, 1902, sold this tract of land to its co-appellees herein, McCormick and Oglesby, for the price of $20,500-onethird cash, and balance on time, with interest. This sale was made privately; that is,

without order of court or posting advertisements. Appellant instituted this action for the purpose of having this sale set aside by the court, alleging that the property had been sold without and against her consent, and without the power of the trust company to make the sale, and at a great sacrifice. Appellees made an issue with her upon these questions, and the court, after hearing the case, found against her, and she has appealed.

It appears from the record that appellee trust company had doubts as to its power to convey this property to its co-appellees in its capacity as trustee under the will, and on the day of the sale of the land Corrithers resigned as executor of the will, and the county court appointed the appellee trust company administrator de bonis non with the will annexed, and in making the conveyance to its co-appellees it signed and executed the deed in both capacities. The resignation of Corrithers as executor and the appointment of appellee in his stead was of no force or effect. The office of executor under this will ceased when Corrithers made his final settlement in 1890 and turned over the estate in his hands to himself as trustee. If this deed is valid, it is so by reason of the trust company executing it as trustee under the will of Fielding Neal as authorized by the order of court copied above. The will not only empowered, but directed, that this property should be sold whenever it would bring a fair price. Appellant claims that this power was given to Corrithers; that the testator reposed personal confidence in him; that he did not mean that this power was to be exercised by any trustee other than Corrithers. We cannot agree with this construction of the will. The language directing a sale of the real estate applied equally to Corrithers or any person which a court of competent jurisdiction might appoint to act as such trustee.

Appellant also contends that the appellee trust company had no power to execute the provisions of the will in regard to a sale of the property, except it was authorized by the court appointing it, and that the court did not give it power to make a sale. We agree with appellant that the court had the power to limit the authority of appellee, and could, by an order of court, have prohibited a sale altogether, or placed it upon terms in making a sale-such as advertising and fixing the terms of the sale, and requiring it to report the sale to the court for its confirmation; but, as we understand the order of court, it did not limit the powers of appellee, but appointed it trustee of Bertie Amis Cox under the will of Fielding Neal to take, hold, manage, or sell it, as authorized by the will of Fielding Neal. In such case it was not incumbent upon the trustee to advertise the sale by posting notices, or to obtain the consent of any one before making the sale. The only requirement was that the trustee should sell it when a fair price could be obtained therefor. See,

NUNN, J. This appeal is from a judg ment of the Jefferson circuit court for refusing to allow the appellant a fee of $12,000 for services in representing W. R. Logan, assignee of Kentucky Citizens' Building & Loan Association, in the settlement of its affairs. This settlement suit has been on the docket something like six years. The appellant and his co-counsel have rendered valuable services, for which they were allowed the sum of $6,150. Other counsel engaged in the case were paid $2,660. The total assets which went into the hands of the assignee amounted to about $200,000, only about $90,000 of which have been collected.

The proof shows that nearly one-third of what has been collected has been expended in the way of paying attorneys, the assignee, and other expenses incurred. While, under the proof, the allowance to appellant appears small, considering all the circumstances connected with the settlement of this estate as shown by the record, and the further fact that the chancellor who tried this case knew all about it from its inception, and the kind and character of services rendered by the appellant, we do not feel inclined to disturb his judgment. In the case of Germania Safety Vault Co. v. Hargis, 23 Ky. Law Rep. 874, 64 S. W. 516, the court said: "The only evidence as to the value of attorneys' services being their own testimony, the court is not concluded thereby, but must, while having full respect for their opinions, exercise its own judgment." In the case of Louisville Gas Co. v. Hargis, 17 Ky. Law Rep. 1190, 33 S. W. 946, this court in substance said: In