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Pursifull's back line, thence with the same to the beginning. The condition of the above obligation is such that the aforesaid Wilkerson Campbell bought a part of this boundary from Henry C. Pursifull for the sum of $350, and the said Henry C. Pursifull paid $100 back to Mount Pursifull and I the said Mount Pursifull do charge the said Campbell $300, to be discounted out of their part of my estate at my death, and I the said Mount Pursifull and Mary my wife do make to the said Wilk Campbell and Martha his wife a good lawful deed to said tract of land and will forever wart and defend the same against all persons claiming or to claim the same unto the said Campbell and Martha his wife their heirs forever. In testimony whereof we have here unto set our hands and affixed our seals this the 8th day of September, 1857. "[Signed]

Mount Pursifull. "Mary Pursifull."

Martha Campbell had born to her four children, two of whom died in infancy. She died before her husband, Wilkerson Campbell, leaving two children, one of whom, Milburn Campbell, is an appellant herein. Wilkerson Campbell married again, and had issue to the number of eight living children. After his death some of those children conveyed their interest in the land above described to T. J. Asher, who has conveyed his interest to appellant Miracle. This suit was brought by Asher against Milburn Campbell (who bought out the interest of his whole brother James) and two infants, children of Wilkerson Campbell by his last wife (Asher having bought the interest of all the other heirs, and receiving conveyances therefor), for a partition of the land. Asher claimed in the petition that each heir was entitled to an undivided one-tenth of the whole tract. Milburn Campbell contended, on the contrary, that his mother, Martha Campbell, took one moiety of the tract embraced by the deed above set out, and her husband, Wilkerson Campbell, took the other; that he, Milburn Campbell, and his whole brother, inherited the whole of their mother's moiety upon her death, subject to their father's estate as tenant by the curtesy, and that as heirs at law of the father they took an undivided onetenth each in the latter's moiety of the land.

The court heard extraneous evidence as to how the land was paid for and claimed, but we think this was all beside the issue in the case. Whatever may have been Wilkerson Campbell's intention, or whatever may have been his understanding concerning what he was buying, the fact remains that he accepted a deed and put it to record, which conveyed the land to him and to his wife jointly in fee as tenants in common. After nearly 50 years it is too late to attack this deed for the first time. Nor does it matter that Wilkerson Campbell paid more than half of the consideration. Resulting trusts hay

ing been abolished by statute prior to the making of this deed, the grantees took each an undivided one-half interest in the land conveyed by it. The judgment of the circuit court was to the effect that the whole of the land descended to the heirs of Wilkerson Campbell in equal parts, which, as will be seen from the foregoing, was an erroneous conclusion. Milburn Campbell's interest was six-tenths of the whole tract, subject to the right of the infants to occupy the homestead during their minority.

It is complained that the judgment was furthermore erroneous in directing the commissioners to partition the land to allot the dwelling house and curtilage to the infants, without respect to their value. Under the statute (section 1707, Ky. St. 1903), the infant children of Wilkerson Campbell were entitled to occupy his homestead during their minority. Their fee simple interest should have been laid off with respect to this right; that is to say, if the homestead was less than their fee simple interest, the latter should have been made to include the former. On the other hand, if the homestead was of greater value than that fee-simple interest, the latter should have been included in the former.

The judgment of the circuit court is reversed, and cause remanded, with directions to enter a judgment in conformity with this opinion.

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EXECUTORS-CONVEYANCE OF REALTY-POWER UNDER WILL.

A conveyance in fee by the widow and children of a testator devising all his property to the widow, and declaring that she shall apply so much thereof as in her discretion she may deem necessary to the maintenance of the family, and that the residue shall be divided among the children, and constituting her executrix, with full power to convey in as full a manner "as I could do myself, if living," made to a creditor of the testator in settlement of his claim, passes a good title in fee to the creditor.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division. "Not to be officially reported."

Action by Dennis Long's executor against R. C. Kerr and another. From a judgment for plaintiff, defendants appeal. Affirmed. Pirtle & Trabue and C. H. Shield, for appellee.

NUNN, J. In 1892 Erasmus Gripp died in the city of Louisville, Ky., and left a will dated April, 1871. This will was duly probated. We copy those provisions of the will necessary for a solution of the questions involved on this appeal: "(1) I give, devise, and bequeath unto my beloved wife, Henrietta, all my property, real, personal, and mixed, whatsoever. (2) That she shall ap

ply so much thereof as in her discretion she may deem necessary to the maintainance of my family, and at her death the residue, if any, shall be equally divided amongst my children or their heirs. And to effectuate this my intention, I do hereby trust my said wife, whom I do hereby constitute and appoint executrix of this my last will and testament, full power to dispose of my real estate in fee simple or otherwise in as full and large a manner in every respect as I could do myself, if living."

It appears that Gripp at his death was indebted to one Dennis Long in the sum of near $59,000. Long died in 1893. His son, George J. Long, became his executor, and he instituted an action for the settlement of Gripp's estate, and another action on the claims, in which he sought a personal judgment against the personal representative of Gripp, in which he obtained an attachment against the property. Soon after these two actions were instituted the executor of Long, the executrix of Gripp, and the children and heirs of Gripp, who were all adults at the time, entered into a settlement and compromise of all matters between them. By this compromise Dennis Long's executor accepted and received in satisfaction of all claims due the estate of his testator the pieces of real estate involved in this action and one other small piece, and the executrix of Gripp, as such and in her individual capacity, together with all the children and their wives and husbands, joined and executed a deed of conveyance to Dennis Long's executor for the recited consideration of $50, 000 and more. It appears from this record that Long's executor accepted, in satisfaction of the claims due his testate's estate, property not worth exceeding one-fourth the amount of the claim. Upon the execution of this conveyance Long's executor dismissed each of his actions, settled in full. It is not intimated in this record that the claims of Dennis Long's estate were other than bona fide and just claims, and it appears that, if his suit had progressed to final judgment and a forced sale of the property of Gripp, it would have taken all of the estate of Gripp and more, and nothing would have been saved to the Gripp estate. In the year 1900 Long's executor sold a piece of this property, situated on Main street in Louisville, Ky., for something more than $10,000, to Charles B. Nau, Fred E. Zeigler, and John Bender. The purchasers having failed to pay, the executor, on the 12th of June, 1902, instituted this action to enforce his lien for the unpaid price, to wit, $10,000, with its interest. The court adjudged that Long had a lien for that sum, and directed a sale of the property. At a sale under this judgment the appellant R. C. Kerr bought one-half of the lot, and appellant Debrovy bought the other half; each paying in cash $25. They failed and refused to execute bond to the commissioner for the balance of the purchase price. The facts

were reported by the commissioner to the court, and it issued a rule against the appellants to show cause why they had failed to execute such bond or pay the purchase price. The effect of their response was that Henrietta Gripp had no power, under her husband's will or otherwise, to convey this land for the purpose of paying debts, and therefore the deed of herself and her children did not pass any interest in this property, except her individual interest in the trust estate.

The testator, Erasmus Gripp, did not intend, and, if so, he did not have the power, to dispose of his property by will so as to prevent the collection of his just debts out of his estate. The will authorized Henrietta Gripp to sell and convey in fee simple this property as fully as the testator could have done, if living. In compliance with this power, and for the purpose of saving to herself and children a remnant of this estate, she, together with her children, all adults, executed the conveyance. We are of the opinion that this deed passed a good title to Dennis Long's executor.

The court did not err in adjudging the response of appellants insufficient. Wherefore the judgment is affirmed.

BRITE et al. v. GUY.

(Court of Appeals of Kentucky. Sept. 27, 1905.)

1. PARTNERSHIP - BORROWING FIRM PURPOSES-LIABILITY.

MONEY FOR

Money was borrowed by a firm for its use and within the scope of the partnership authority. The transaction was made by one partner, with the knowledge and acquiescence of a copartner. Held, that the copartner was liable on the note given for the loan.

2. FRAUDULENT CONVEYANCES- – KNOWLEDGE OF GRANTEE-EVIDENCE-SUFFICIENCY.

Evidence in a suit to set aside a conveyance as fraudulent towards creditors examined, and held to charge the grantee with notice of the grantor's fraudulent purpose to defeat his creditors.

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

Action by C. J. Guy against Walter Brite and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Wm. Cromwell, Jno. M. Wilkins, and Oliver & Gilliam, for appellants. W. C. Goad, for appellee.

HOBSON, C. J. Appellant Walter Brite was a member of the firm of Ham & Co. The firm executed a note for $500 to appellee, C. J. Guy, for money borrowed of him. The firm failed, and this action was brought by Guy against Brite to recover on the note. An attachment was taken out and levied on two tracts of land as the property of Brite. Afterwards an amended petition was filed, in which it was charged that just before the suit was brought Brite had conveyed to his brother-in-law, Lovell Morehead, one of the tracts of land for the pretended considera

tion of $2,000, and had mortgaged the other tract to his attorneys to secure a fee of $1,000; that the deed to Morehead had been lodged for record since the suit was filed; and that it was fraudulent and made for the purpose of defeating the claims of his creditors. The circuit court on final hearing set aside the deed, gave judgment on the note, and ordered a sale of the land to satisfy the debt. From this judgment Brite and Morehead appeal.

Brite contested his liability on the note, but the proof shows that the money was borrowed by the firm for the use of the firm, and that the borrowing of the money was within the scope of the partnership authority. The loan was made by Ham, but the proof strongly tends to show that Brite knew of it and acquiesced in the borrowing of the money. As to the deed, both Brite and Morehead testify that it was made in good faith, and that Morehead in fact paid $2,000 for the land. It is evident from the record that Brite made the deed to Morehead after the firm of Ham & Co. had failed, and after the creditors of the firm were asserting their claims against him, and that he made the deed for the purpose of defeating his creditors. It is insisted for Morehead that he is a purchaser in good faith, and that he had no notice of the fraudulent purpose of his vendor. We cannot concur in this view. They were brothers-in-law. Brite spent much of his time at Morehead's house. After the deed was made he made his home there. Up to the time the deed was made he lived on the land. Morehead knew of Brite's financial situation, and he knew that his creditors were pressing him. Brite says that he now has in his possession the $2,000 paid to him by Morehead, and that he has not deposited it in bank or invested it in anything; and Morehead says that he paid the $2,000 to Brite without drawing any of it out of bank, and paid it in cash. His statements as to where he got the money are vague, and neither he nor Brite explains satisfactorily why the money was paid in specie, or satisfactorily explains why Morehead had kept this amount of money in his house. Under all the evidence we cannot disturb the chancellor's finding, as the conduct of both the parties indicates that, if Morehead paid Brite the $2,000, he paid it distinctly understanding why Brite wanted the $2,000 paid to him in specie.

Judgment affirmed.

FRENCH v. COMMONWEALTH. (Court of Appeals of Kentucky. Sept. 27, 1905.)

1. HOMICIDE-EVIDENCE-INSTRUCTIONS.

Where, on a trial for voluntary manslaughter, defendant testified that, when assaulted by decedent, he had his knife open, about to cut a string around a bundle he held, and that when decedent struck at him he threw up his arm to ward off the blow, thereby accidentally in

flicting the fatal wound, it was reversible error to fail to instruct that, if the jury be lieved his statement, they should acquit him, though the court correctly charged on selfdefense.

2. CRIMINAL LAW-TRIAL-DUTY TO INSTRUCT. It is reversible error for the court, on a trial for crime, to fail to instruct, though not requested, on the whole law governing the case. Appeal from Circuit Court, Jefferson County, Criminal Branch.

"Not to be officially reported."

Charles French was convicted of volun tary manslaughter, and he appeals. Reversed. James W. Garrison, for appellant. N. B. Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

BARKER, J.

The appellant, Charles French, was indicted by the grand jury of Jefferson county, charged with the offense of voluntary manslaughter, committed by killing Edward Lloyd in sudden heat and passion or in sudden affray. A trial resulted in his conviction as charged in the indictment, and his punishment, fixed by confinement in the penitentiary for 10 years, of which he is now complaining. It is not necessary to enter into a detailed statement of the facts. French and Lloyd met by chance on the sidewalk on Green street, between First and Second, in Louisville, Ky., and engaged in what appeared to be a fist fight over some trivial matter. After the combatants were separated, it was found that Lloyd was cut; the carotid artery being severed. From this wound he died. We think there was sufficient evidence to justify the submission of the case to the jury, and that the court properly overruled the motion of appellant for a peremptory instruction to the jury to find him not guilty.

There is substantially but one question in the record which merits our attention. The court gave instructions on voluntary and involuntary manslaughter, self-defense, presumption of innocence, and reasonable doubt. The appellant, on his own behalf, testified that, when assaulted by Lloyd, he had his knife open in his hand, about to cut the string around a bundle which he held; that when Lloyd struck at him he threw up his arm to ward off the blow; that in some way, not fully explained, Lloyd's own blow drove the knife into his own neck, thereby inflicting the wound of which he died. The appellant was most positive in his declaration that he had no intention of cutting Lloyd, and did not do so, except in the accidental way thus explained. The court gave no instruction to the jury that, if they believed this statement to be true, they should find the defendant not guilty. Appellant was entitled to this instruction. The instruction as to self-defense does not cover the accidental killing. Blackstone, in his Commentaries, vol. 4, p. 182, divides excusable homicide into two classes, either per infortunium, being misadventure, or se defendendo, upon a principle of selfpreservation. And he defines homicide by

misadventure as "where a man, doing a lawful act, without any intention of hurt, unfortunately kills another." In Clark's Criminal Law, § 67, the rule is thus stated: "So, also, if a person accidentally kills another in mutual combat, where he is voluntarily fighting, he is guilty of manslaughter, as the fighting is an unlawful act; but if he does not wish to fight, and is merely defending himself, as the law permits him to do, he is excused on the ground of accident." In Kentucky Criminal Law and Procedure, vol. 1, § 16, Roberson says: "Where any . accidental mischief results from the proper performance of a lawful act, the party doing the act is excused from all guilt. The ground of this exemption is the absence of a criminal intent. If the accident happen in the doing of an unlawful act which is morally wrong, malum in se, then there is no exemption. Thus, if two men are engaged in a mutual fight and one accidentally kills the other, the one doing the killing is guilty of manslaughter, if he was voluntarily fighting, because the fighting is an unlawful act; but if he did not desire to fight, and was merely defending himself, then he is excused on the ground of accident." In the case of Howard v. Commonwealth, 81 S. W. 689, 26 Ky. Law Rep. 465, this court, speaking through Judge Nunn, said: “"Appellant's defense was that the discharge of the gun which wounded his uncle was not intended by him, but was accidental, and two witnesses stated facts which tended to show the truth of appellant's contention. This court is of the opinion that appellant was entitled to an instruction directing the jury to acquit him, if they believed from the evidence the shooting and wounding was accidental and unintentional." To the same effect is Reg. v. Knock, 14 Cox, Cr. Cas. 1. It is true the court's attention was not called to this question by the appellant or his counsel; but we have so often announced the rule that it is the duty of the trial court in a criminal case to give the whole law, and that a failure to do so, even when unasked, is reversible error, that it is unnecessary to here cite the cases. If the death of Edward Lloyd was the result of an accident, as stated by the appellant, the latter was not guilty of any crime, and it was the duty of the court to so instruct the jury.

The appellant was entitled to an instruction upon the only defense he claimed to have. Wherefore the judgment is reversed for proceedings consistent herewith.

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be divided into three classes, to hold office for one, two, and three years, respectively, "or until their successors are elected and qualified," and on the first Saturday in May following the first election, and each year thereafter, two trustees shall be elected to succeed two trustees retiring from office. At the election in 1905 all the trustees were elected, as there had been no election since the election of 1902, so that the term of all the trustees had expired. Held, that the trustees were properly elected, and authorized to submit to a vote of the electors of the district the question of the issuance of bonds in the manner provided by section 4481.

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

Action between W. T. Lee and the trustees of the Shepherdsville graded common school district No. 4. From a judgment for the latter, the former appeals. Affirmed.

J. R. Zimmerman, for appellant. Chas. Carroll, for appellee.

BARKER, J. The question submitted on this appeal is the validity of $4,000 of bonds issued by the appellees for the purpose of purchasing a lot and erecting a school building thereon in their school district. The circuit court rendered a judgment in favor of the validity of the bonds, from which appellant has appealed.

The bonds in question were issued in pursuance of an election held for the purpose of submitting to the voters of the district the question as to whether or not they should assume the indebtedness, with the result that a lawful majority authorized the trustees to issue the bonds. The evidence is all contained in an agreed statement of facts, which shows conclusively that all of the requirements of section 4481 of the Kentucky Statutes of 1903, which regulates the matter, were scrupulously complied with, and it is therefore not necessary to recite the provisions of the statute or of the agreed facts. So far as we are able to understand, the only real question made by appellant is whether or not the trustees were lawfully elected.

Section 4471 of the Kentucky Statutes of 1903, provides that the trustees of graded common school districts shall be divided by lot into three classes, to hold their offices for one, two, and three years, respectively, or until their successors are elected and qualified; "the two trustees selected for the shortest term to retire from office on the second Saturday in May following their election, and the two selected for the second shortest term, and the two selected for the longest term, shall serve one year and two years, respectively, after the second Saturday in May following their election. On the first Saturday in May following the first election of trustees under this act, and the first Saturday in May of each year thereafter, there shall be elected as trustees of common schools are elected two trustees of the said graded common school district, who shall qualify on the second Saturday of the month of their

election, to succeed the two trustees retiring from office, and to serve three years, and until their successors are elected and qualified. If, at any time, there should be a vacancy in said board, the same shall be filled by election by the remaining members, and the person elected to fill such vacancy shall hold his office until the next regular election, when his successor shall be elected to fill out the unexpired term." By the agreed statement of facts it appears that "on the 6th day of May, 1905, an election for trustees of said graded common school district was held at the school house of said graded school district in Shepherdsville, Ky.; said election continuing from 1 o'clock p.m. to 4 o'clock p. m. on said day. At said election the following persons were voted for and elected trustees of said graded school district, namely: S. B. Simmons, O. A. Lutes, W. N. Griffin, C. F. Troutman, and C. L. Crom -which election was properly certified by the officers thereof, and the election sheet so certified was returned to the chairman of said board of trustees on May 6, 1905. There had been no previous election of trustees since the day of May, 1902, and at time of election in May, 1905, the term of all trustees had expired."

It is now said that the election of the trustees who ordered the submission of the question of the issuance of the bonds was illegal, because they were all elected at once, instead of by classes annually, as regularly they should have been. This position is unsound. The terms of all of the old officers had expired, and they were holding over until the election of their successors. In the very nature of things, in order to meet the condition with which the district was confronted, all of the trustees must be elected at once, unless a part should be allowed to hold over still further for the want of an election. This very ques

tion arose in the case of Louisville Industrial School of Reform v. City of Louisville, 12 S. W. 710, 11 Ky. Law Rep. 567. Under the charter of the Industrial School of Reform the board of managers, consisting of nine, were required to divide themselves into three classes of three each, "the term of one class to expire in one year, the second in two years, and the third class in three years, and in each year thereafter three managers should be elected. This mode of election continued until May, 1885, and from that time until these last managers were elected, on the 2d of May, 1889, no election was held. The general council failed to elect for the years 1886, 1887, and 1888, and when the present appellees were elected the term of office of all the old managers had expired, and all were holding over. So at the election held on the 2d of May, 1889, the general council had to determine whether an election of all nine managers should be had, or an election of only three, following with an election of three members each year." It was held that it was the duty of the city to elect the whole board. There is less question as to the regularity of the election of the trustees in the case at bar than of the managers in the case cited. In that there were two sets of managers, each claiming to be the lawful board. In the case at bar only the appellees claim to be the lawful incumbents of the offices in question. Elections to fill such vacancies as occur in the board were regularly held in pursuance of the provision of section 4471 of the Kentucky Statutes of 1903.

A careful examination of the record convinces us that the requirements of the law in reference to the issuance of the bonds involved were faithfully carried out, and there is no substantial question as to their validity Wherefore the judgment is affirmed.

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