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Pursifull's back line, thence with the same ing been abolished by statute prior to the to the beginning. The condition of the above making of this deed, the grantees took each obligation is such that the aforesaid Wilker- an undivided one-half interest in the land son Campbell bought a part of this boundary conveyed by it. The judgment of the cirfrom Henry C. Pursifull for the sum of $350, cuit court was to the effect that the whole of and the said Henry C. Pursifull paid $100

the land descended to the heirs of Wilkerback to Mount Pursifull and I the said

son Campbell in equal parts, which, as will Mount Pursifull do charge the said Camp

be seen from the foregoing, was an erroneous bell $300, to be discounted out of their part

conclusion. Milburn Campbell's interest was of my estate at my death, and I the said

six-tenths of the whole tract, subject to the

right of the infants to occupy the homestead Mount Pursifull and Mary my wife do make

to the said Wilk Campbell and Martha his “It is complained that the judgment was

wife a good lawful deed to said tract of

furthermore erroneous in directing the comland and will forever wart and defend the

missioners to partition the land to allot the same against all persons claiming or to claim dwelling house and curtilage to the infants, the same unto the said Campbell and Martha

without respect to their value. Under the his wife their heirs forever. In testimony

statute (section 1707, Ky. St. 1903), the inwhereof we have here unto set our hands

fant children of Wilkerson Campbell were and affixed our seals this the 8th day of

entitled to occupy his homestead during their September, 1857.

minority. Their fee simple interest should “[Signed]

Mount Pursifull.

have been laid off with respect to this right; “Mary Pursifull.”

that is to say, if the homestead was less than Martha Campbell had born to her four their fee simple interest, the latter should children, two of whom died in infancy. She have been made to include the former. On died before her husband, Wilkerson Camp- the other hand, if the homestead was of bell, leaving two children, one of whom, Mil- greater value than that fee-simple interest, burn Campbell, is an appellant herein. Wil- the latter should have been included in the kerson Campbell married again, and had is- former. sue to the number of eight living children. The judgment of the circuit court is re. After his death some of those children con- versed, and cause remanded, with directions veyed their interest in the land above de

to enter a judgment in conformity with this scribed to T. J. Asher, who has conveyed his opinion. interest to appellant Miracle. This suit was brought by Asher against Milburn Campbell (who bought out the interest of his whole

KERR et al. v. LONG'S EX'R. brother James) and two infants, children of (Court of Appeals of Kentucky. Sept. 26, Wilkerson Campbell by his last wife (Asher

1905.) having bought the interest of all the other EXECUTORS—CONVEYANCE OF REALTY-POWER heirs, and receiving conveyances therefor),

UNDER WILL. for a partition of the land. Asher claimed in

A conveyance in fee by the widow and

children of a testator devising all his property the petition that each heir was entitled to to the widow, and declaring that she shall apply an undivided one-tenth of the whole tract. so much thereof as in her discretion she may Milburn Campbell contended, on the contrary,

deem necessary to the maintenance of the

family, and that the residue shall be divided that his mother, Martha Campbell, took one

among the children, and constituting her er: moiety of the tract embraced by the deed ecutrix, with full power to convey in as full a above set out, and her husband, Wilkerson

manner "as I could do myself, if living," made Campbell, took the other; that he, Milburn

to a creditor of the testator in settlement of

his claim, passes a good title in fee to the Campbell, and his whole brother, inherited creditor. the whole of their mother's moiety upon her death, subject to their father's estate as ten

Appeal from Circuit Court, Jefferson Coun

ty, Chancery Branch, First Division. ant by the curtesy, and that as heirs at law of the father they took an undivided one

"Not to be officially reported." tenth each in the latter's moiety of the land.

Action by Dennis Long's executor against The court heard extraneous evidence as to

R. C. Kerr and another. From a judgment how the land was paid for and claimed, but

for plaintiff, defendants appeal. Affirmed. we think this was all beside the issue in the Pirtle & Trabue and C. H. Shield, for apcase. Whatever may have been Wilkerson pellee. Campbell's intention, or whatever may have been his understanding concerning what he NUNN, J. In 1892 Erasmus Gripp died was buying, the fact remains that he accept- in the city of Louisville, Ky., and left a will ed a deed and put it to record, which convey- dated April, 1871. This will was duly proed the land to him and to his wife jointly in bated. We copy those provisions of the will fee as tenants in common. After nearly 50 necessary for a solution of the questions inyears it is too late to attack this deed for volved on this appeal: “(1) I give, devise, the first time. Nor does it matter that and bequeath unto my beloved wife, HenriWilkerson Campbell paid more than half etta, all my property, real, personal, and of the consideration, Resulting trusts hav- mixed, whatsoever. (2) That she shall apply so much thereof as in her discretion she were reported by the commissioner to the may deem necessary to the maintainance of court, and it issued a rule against the appelmy family, and at her death the residue, if lants to show cause why they had failed to any, shall be equally divided amongst my

execute such bond or pay the purchase price. children or their heirs. And to effectuate The effect of their response was that Henrithis my intention, I do hereby trust my said etta Gripp had no power, under her huswife, whom I do hereby constitute and ap

band's will or otherwise, to convey this land point executrix of this my last will and testa- for the purpose of paying debts, and therefore ment, full power to dispose of my real estate

the deed of herself and her children did not in fee simple or otherwise in as full and large

pass any interest in this property, except her a manner in every respect as I could do my

individual interest in the trust estate. self, if living."

The testator, Erasmus Gripp, did not inIt appears that Gripp at his death was in

tend, and, if so, he did not have the power, to debted to one Dennis Long in the sum of

dispose of his property by will so as to prenear $59,000. Long died in 1893. His son,

vent the collection of his just debts out of his George J. Long, became his executor, and

estate. The will authorized Henrietta Gripp he instituted an action for the settlement of

to sell and convey in fee simple this property Gripp's estate, and another action on the as fully as the testator could have done, claims, in which he sought a personal judg.

if living. In compliance with this power, ment against the personal representative of

and for the purpose of saving to herself and Gripp, in which he obtained an attach- children a remnant of this estate, she, togethment against the property. Soon after these er with her children, all adults, executed the two actions were instituted the executor of conveyance. We are of the opinion that this Long, the executrix of Gripp, and the chil- deed passed a good title to Dennis Long's dren and heirs of Gripp, who were all adults

executor. at the time, entered into a settlement and The court did not err in adjudging the recompromise of all matters between them. sponse of appellants insufficient. Wherefore By this compromise Dennis Long's executor the judgment is affirmed. accepted and received in satisfaction of all claims due the estate of his testator the pieces of real estate involved in this action

BRITE et al. v. GUY. and one other small piece, and the executrix (Court of Appeals of Kentucky. Sept. 27, of Gripp, as such and in her individual ca

1905.) pacity, together with all the children and 1. PARTNERSHIP · BorrowING MONEY their wives and husbands, joined and execut- FIRM PURPOSES–LIABILITY. ed a deed of conveyance to Dennis Long's ex

Money was borrowed by a firm for its use ecutor for the recited consideration of $50,

and within the scope of the partnership author.

ity. The transaction was made by one partner, 000 and more. It appears from this record

with the knowledge and acquiescence of a cothat Long's executor accepted, in satisfaction partner. Held, that the copartner was liable of the claims due his testate's estate, proper

on the pote given for the loan. ty not worth exceeding one-fourth the


OF GRANTEE-EVIDENCE-SUFFICIENCY. amSunt of the claim. Upon the execution Evidence in a suit to set aside a conveyance of this conveyance Long's executor dismissed as fraudulent towards creditors examined, and each of his actions, settled in full. It is not held to charge the grantee with notice of the intimated in this record that the claims of

grantor's frauduient purpose to defeat his

creditors. Dennis Long's estate were other than bona fide and just claims, and it appears that, if

Appeal from Circuit Court, Allen County. bis suit had progressed to final judgment and

"Not to be officially reported.” a forced sale of the property of Gripp, it would Action by C. J. Guy against Walter Brite have taken all of the estate of Gripp and

and another. From a judgment for plaintiff, inore, and nothing would have been saved defendants appeal. Affirmed. to the Gripp estate. In the year 1900 Long's Wm. Cromwell, Jno. M. Wilkins, and Oliver executor sold a piece of this property, situ- & Gilliam, for appellants. W. C. Goad, for ated on Main street in Louisville, Ky., for appellee. something more than $10,000, to Charles B. Nau, Fred E. Zeigler, and John Bender. The HOBSON, C. J. Appellant Walter Brite purchasers having failed to pay, the execu

a member of the firm of Ham & Co. tor, on the 12th of June, 1902, instituted this The firm executed a note for $500 to appellee, action to enforce his lien for the unpaid C. J. Guy, for money borrowed of him. The price, to wit, $10,000, with its interest. The firm failed, and this action was brought by court adjudged that Long had a lien for that Guy against Brite to recover on the note. An sum, and directed a sale of the property. At attachment was taken out and levied on two a sale under this judgment the appellant R. tracts of land as the property of Brite. AfterC. Kerr bought one-half of the lot, and ap- wards an amended petition was filed, in pellant Debrovy bought the other half; each which it was charged that just before the paying in cash $25. They failed and refus- suit was brought Brite had conveyed to his ed to execute bond to the commissioner for brother-in-law, Lovell Morehead, one of the the balance of the purchase price. The facts 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 mon

As to the deed, both Brite and More. head 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.

flicting the fatal wound, it was rerersible 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 INSTBUCT.

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 rolun. 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, pre sumption 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 in. struction. 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

FRENCH V. COMMONWEALTH. (Court of Appeals of Kentucky. Sept. 27,


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

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 lat. ter, the former appeals. Affirmed.

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

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 tight 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 acci. dental, 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.

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 require. ments 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 short. est 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


DIST. NO. 4. (Court of Appeals of Kentucky. Sept. 27,


Ky. St. 1903, 84471, provides that the trustees of graded common school districts shall

election, to succeed the two trustees retiring | tion arose in the case of Louisville Industrial

, , til their successors are elected and qualified. S. W. 710, 11 Ky. Law Rep. 567. Under the If, at any time, there should be a vacancy in charter of the Industrial School of Reform said board, the same shall be filled by election the board of managers, consisting of nine, by the remaining members, and the person were required to divide themselves into three elected to fill such vacancy shall hold his of- classes of three each, “the term of one class fice until the next regular election, when his to expire in one year, the second in two years, successor shall be elected to fill out the un- and the third class in three years, and in each expired term.” By the agreed statement of year thereafter three managers should be facts it appears that “on the 6th day of May, elected. This mode of election continued un1905, an election for trustees of said graded til May, 1885, and from that time until these common school district was held at the school last managers were elected, on the 2d of house of said graded school district in Shep- | May, 1889, no election was held. The general herdsville, Ky.; said election continuing from council failed to elect for the years 1886, 1 o'clock p. m. to 4 o'clock p. m. on said day. At 1887, and 1888, and when the present appelsaid election the following persons were voted lees were elected the term of office of all the for and elected trustees of said graded sohool old managers had expired, and all were holddistrict, namely: S. B. Simmons, 0. A. Lutes, ing over. So at the election held on the 2d W. N. Griffin, C. F. Troutman, and C. L. Crom of May, 1889, the general council had to de—which election was properly certified by termine whether an election of all nine manthe officers thereof, and the election sheet so agers should be bad, or an election of only certified was returned to the chairman of three, following with an election of three said board of trustees on May 6, 1905. There members each year." It was held that it was had been no previous election of trustees the duty of the city to elect the whole since the

day of May, 1902, and at board. There is less question as to the regtime of election in May, 1905, the term of all ularity of the election of the trustees in the trustees had expired."

case at bar than of the managers in the case It is now said that the election of the trus- cited. In that there were two sets of mantees who ordered the submission of the ques- agers, each claiming to be the lawful board. tion of the issuance of the bonds was illegal, In the case at bar only the appellees claim to because they were all elected at once, instead be the lawful incumbents of the offices in of by classes annually, as regularly they question. Elections to fill such vacancies should have been. This position is unsound. as occur in the board were regularly held in The terms of all of the old officers had expired, pursuance of the provision of section 4471 of and they were holding over until the election the Kentucky Statutes of 1903. of their successors. In the very nature of A careful examination of the record conthings, in order to meet the condition with vinces us that the requirements of the law which the district was confronted, all of the in reference to the issuance of the bonds intrustees must be elected at once, unless a part volved were faithfully carried out, and there should be allowed to hold over still further is no substantial question as to their validity for the want of an election. This very ques- Wherefore the judgment is affirmed.

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