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Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"To be officially reported.”

Action by Lillie E. Levi against the Fidelity Trust & Safety Vault Company. Judgment for defendant. Plaintiff appeals. Affirmed

E. L. McDonald, for appellant. Thos. W. Bullitt, for appellee.

ton to be $3,000, while it is otherwise proven to have been as much as $6,000. In addition J. H. Wiggington conveyed to N. B. Wiggington all of the former's property by way of mortgage to secure a balance of $9,500, the balance then thought to be due from J. H. Wiggington to N. B. Wiggington on account of the advancements named above. This mortgage included the land in controversy. Subsequent to this, and after appellee had obtained her personal judgment against J. H. Wiggington, the latter conveyed the land in controversy to his wife.

While it is true that fraud must be al. leged and proven before a conveyance will be set aside at the instance of a creditor, it does not follow that the proof must establish the fact of fraud pond all doubt. And it is also the law that fraud will never be presumed in the absence of evidence. Yet circumstances may prove fraud in law as clearly as if the fact were testified to by the mouths of witnesses. It is uniformly held that a conveyance by the husband to his wife, or a father to his son, the grantor being in failing circumstances, places the burden upon such grantee to prove the bona fides of the transaction, including proof that the consideration that passed between them was ade quate. Under all of the facts shown in this case the court is unwilling to disturb the finding of the chancellor that this transaction was a fraud upon appellee, and was so intended by appellant J. H. Wiggington, and that it was such a transaction that any sensible person, who was as well acquainted with the situation as N. B. Wiggington and Lena Wiggington were, would have been bound to know of J. H. Wiggington's purposes in the matter. In that case it is not material wheth. er the consideration claimed by N. B. Wiggington to have been paid by him was paid or not. Beside all that, the record satisfactorily shows that the parties, either at the time of the payment or subsequently, agreed that N. B. Wiggington was to be otherwise secured therefor, and that the conveyance by J. H. Wiggington to his wife was an afterthought, and prompted by his desire to save his property from being subjected to appellee's debt and to the debts of his other creditors.

Perceiving no error in the record, the judgment is affirmed.

SETTLE, J. B. C. Levi died in the city of Louisville, leaving a considerable estate, real and personal. He left no children, but was survived by his wife, Mary E. Levi. His last will, which was duly probated in the Jef. ferson county court, contained these provisions: “(1) I desire that all my debts of every kind shall be paid in full. (2) After my debts shall have been paid, I will and bequeath to my wife, Mary Ellen Levi, all of my personal, real and mixed estate of every kind and description, to have and enjoy all the days of her life. (3) Previous to her death she may will or distribute to her re lations and to my relations any property, real or personal, as she may choose or desire them to have. I am satisfied that she will act justly in this matter, but under no circumstances shall she be prevented or hindered in the enjoyment of any property or per. sonalty that I may have at my death. (4) I desire that my friend, Captain Gilmore, shall act as trustee for my wife without bond or security."

Mary E. Levi did not, previous to her death, distribute to the relations of herself or husband any of the estate he devised her; but in December, 1893, she died, leaving a last will and testament, which was shortly thereafter probated. The will provides for the payment of several small pecuniary legacies which were satisfied out of her own personal estate; but the only part of it that concerns us is found in clause No. 3, which is as follows: "All the residue of my property, real, personal and mixed, and the property of my late husband of every kind except a cottage and lot in the Kavanaugh Camp Grounds, I devise to the said Fidelity Trust & Safety Vault Company, in trust, however, to take and sell the same with all convenient speed and proper and sufficient deeds to be given therefor and to distribute the proceeds to the following persons, towit: *

The persons to whom the will of Mrs. Levi gave the property devised her by the will of her deceased husband, as well as the estate she otherwise owned, were all blood relations of herself and husband, though many of them were not next of kin.

It appears that Mrs. Levi left personal estate, in addition to what she received under the will of her husband, amounting to $4,800. There were four parcels of real estate, which had formerly been the property of the husband. It was all sold by appellee, the Fidelity Trust & Safety Vault Company, in pursuance of the power conferred upon :

LEVI V. FIDELITY TRUST & SAFETY

VAULT CO. (Court of Appeals of Kentucky. Sept. 26,

1905.) WILLS-POWER OF APPOINTMENT.

Under a will giving all testator's property to his wife, and providing, “Previous to her death she may will or distribute to her relations and to my relations any property as she may choose or desire them to have," she, in distributing the property, is not limited to next of kin of herself and testator as beneficiaries.

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Mary E. Levi's will, with the approval of the Levi, We are of opinion that the language chancellor of the Jefferson circuit court; and of B. C. Levi's will admits of no other conthe proceeds, aggregating $12,818.34, together struction than that placed upon it by the with what was left of her personal estate chancellor. The language: "Previous to after satisfying the small specific legacies, her death she [Mary E. Leri] may will or were by it distributed to the persons named distribute to her relations and to my relain her will. Among the parcels of realty tions any property, real or personal, as she thus disposed of was a tract of land of 76 may choose or desire them to have. I am acres lying in Jefferson county, which was satisfied that she will act justly in this purchased by the appellant, Lillie E. Levi. matter" conferred upon her the powA deed of conveyance was made her therefor er to distribute the estate of B. C. Leri, by the Fidelity Trust & Safety Vault Com- | according to her discretion, to such of her pany as “trustee under the will of Mary E. relations and his relations as she might Levi". Upon the payment by her of the pur- select. If she had the right to distribute chase price she was given immediate posses- any part of the estate during her life, or sion of the land, and has ever since continu- by will, to such of her relations and those ously remained in the undisturbed possession of her deceased husband she might thereof. It appears, however, that in attempt. | "choose or desire" to have it, it follows ing to consummate a sale of the land, recently that her selection of the objects of her bounmade to another, appellant was met by the ty from among her own and her husband's purchaser with the objection that the will of relations cannot be questioned or interfered Mrs. Levi did not pass to the Fidelity Trust with. If this construction of the will is & Safety Vault Company a good and sufficient correct, it must be taken for granted that title to the land, and that in consequence the by the use of the word "relations" B. C. Levi deed from it as trustee to appellant did not did not intend to confine the distribution of convey to her a good and valid title, and be- the estate devised his wife to those who cause of these supposed defects in her title were directly of kin. It was manifestly used the purchaser declined to accept the deed as meaning blood kin of any degree. So, if tendered or to take the property. Thereupon Mrs. Levi chose to give to the children of appellant Instituted this action to cancel the her sister, instead of the sister, or to the deed made her by the Fidelity Trust & Safe- nieces or nephews of her husband, instead ty Vault Company, rescind the contract of of his brothers, the estate left by him, she sale, and recover of it the purchase price clearly had the right to do so, as she did not paid by her therefor. The chancellor ad- thereby violate the intention of the testator judged that appellant received through the as expressed in his will. deed from appellee, Fidelity Trust & Safety We think, if Mrs. Levi had died withVault Company, 'trustee under the will of out exercising the power to distribute the Mary E. Levi, a good and valid title to the estate conferred by the will of her husband, land in controversy. Consequently the ac- and a court of equity were called on to do tion was dismissed. Not dissatisfied with, 80, it doubtless would hold that, as the right but questioning, the correctness of the chan- to select the relations to whom it should go cellor's conclusions, and especially his con- was by the terms of the will personal to the struction of the will of B. C. Levi, appellant | widow, and she had failed to exercise it, asks of us a consideration and review of the the word "relations" should be construed as question of title involved.

meaning the next of kin; and, the court The objection to the title of appellant is not having the right to exercise the power bottomed upon the theory that Mrs. Levi, of selection given the widow, the estate in distributing to his and her relations the would be distributed to the next of kin as property devised her by the will of her provided by statute. Our conclusion, there husband, was limited to their next of kin, fore, is that the power conferred upon Mrs. equally; whereas, the disposition made of Levi by the will of her husband is not it by her will, while equal (that is, giving coupled with an enforceable trust, because one half to his and the other half to her it imposed no obligation upon Mary E. Leri relations) was not to the next of kin, but to will or distribute to the relations of herin the main to those related to them in a self and husband, or any of them, any porremoter degree. Although at the death of tion of her deceased husband's estate. That Mrs. Levi her deceased husband had six instrument merely provides that “previous brothers living, also several nieces and to her death she may will or distribute any nephews, children of a deceased brother, of the property.” She was not authorizet her will gave portions of the estate to but to go outside of the class designated as two of the brothers, one of the children of "my relations" and "her relations," and the deceased brother, and two of the nieces give or will the property to a mere stranger, of her husband. Her will also gave a portion or one not related to her or her husband, but to the children of Mrs. Rebecca Robinson, might at any time before her death, by a and another portion to the children of gift or successive gifts, have disposed of Mary Clifton Duncan, though Rebecca Robin- any part of the property to any person or son and Mary Clifton Duncan were living persons related by blood to herself or husnd were of the next of kin of Mary E. band; and the title of the donee would have

*

become valid and perfect, without regard pointment. None of these cases hold that to any subsequent disposition of the remain- the appointment is thus limited. The prinder of the property. Therefore the power ciple is thus stated in Grant v. Lyman, 4 conferred upon Mary E. Levi by the will of Russ. 292: "Where the author of a power her husband was a mere naked power, to uses the term “relations," and the donee be exercised at the discretion of the donee. does not exercise the power, ordinarily the Perry on Trusts, $ 253. Pomeroy's Equity court will adopt the statute of distributions Jurisprudence, 8 835.

as a convenient rule of construction and will Our attention has been called by counsel give the property to the next of kin; but to the use by the testator of the word "to," the donee of the power has the right of seinstead of the word "among,” in that clause lection among the relations of the donor, alof the will defining the power which may be though not within the degree of next of exercised by his wife in the matter of dis- kin. It was said, also, the same rule has posing of the estate devised, and it is ar- been applied to the personal estate, where gued that, while possessed of the power to the word “family" has been used in the glve “to” any person answering the descrip- place of "relations." !

It is not ne tion of "relations," she was not required to cessary, therefore, to the validity of the gift make such gift “among all” of the relations. and the power that the devise should be But, without relying upon such refinements to the next of kin to the donor, nor that he of distinction, our examination of the au- should bear the family name." thorities bearing upon the question under It will be found that the English and consideration has brought us to the conclu- American authorities on this question, with sion that no better statement of the law con- here and there an exception, sustain the doctrolling this case can be found than is given trine announced in the case supra, and no in Perry on Trusts, 8 256: "If the donee of Kentucky case has been cited that conflicts the power, or trustee, is to select from the with it. Indeed, the only Kentucky cases donor's relations those to whom he is to that bear on the subject are all cases of give the property in the execution of the powers coupled with a trust to be exercised power, he may select from the whole circle for the benefit of “children," where the powof relations, whether near or distant." Sug- er was either not exercised at all, or not exden on Powers, p. 242. In Huling v. Fenner, ercised as required by the donor of the 9. R. I. 410, the testator devised his prop- power, and the court, having regard to the erty to his wife for life, “with full power trust created, enforced it in a manner conto devise and bequeath the same, or any sonant with the principles of equity. In part thereof, to such of my relations of the the case at bar the power conferred upon Huling family as she shall in her discretion Mrs. Levi by the will of her husband was select." The donee of the power gave the completely exercised while she was living whole property to one person, who was a by the terms of her will. The confidence "relation" of the husband, but not his next reposed in her by the husband was not misof kin. It was insisted that the power of placed, for she not only provided for the selection given the wife was limited to the distribution of the estate left by him as relation who might be the next of kin at allowed by his will, but in addition inthe testator's death. In discussing this cluded in the distribution a considerable point in its opinion the court said: “This estate of her own. claim is supposed to be countenanced and In our opinion the appellant, under the supported by those cases where the power wills of B. C. and Mary E. Levi and by the of appointment has not been executed, and deed from the Fidelity & Safety Vault Comin which the courts hold that the devise of pany, received a good and perfect title to the the power creates a trust for the class among land purchased by her. Wherefore the which the selection is to be made. In these judgment is affirmed. cases, where the power is to devise to relations, and the power has not been exercised, it has been held that this trust shall COMMONWEALTH v. MOORE et al. not be extended to all kindred, however re

(Court of Appeals of Kentucky. Sept. 27, mote, because a range so illimitable would

1905.) render the trust uncertain and difficult, if

HOMICIDE-ROBBERY-ACCIDENTAL KILLING not impossible, of execution, but should be OF THIRD PERSON. limited to those who are next of kin accord- Persons who assault one for the purpose of ing to the statute of distribution. If the robbing him are not guilty of homicide, where

he, shooting at them in self-defense, kills a power be executed, then the object is made

third person. certain and definite, and the objection of uncertainty ceases. If the power be not

Appeal from Circuit Court, Knott County. exercised, then the trust must be held void

"To be officially reported." for uncertainty, or as a devise direct to

John Moore and another were indicted for relations it must be thus limited; and the

murder. The indictment was dismissed, and courts have taken the alternative to limit

the commonwealth appeals. Affirmed. the trust, ratier than to hold it void. They N. B. Hays, Atty. Gen., and Chas. Il distinguish between the trust and the ap- ris, for the Commonwealth.

BARKER, J. The appellees, John Moore ing thereof kill a man, this shall be adjudged and John Kelly, were indicted by the grand murder in them all that are present of that jury of Knott county, charged with the of- party abetting him and consenting to the act fense of willful murder. As the question of or ready to aid him, although they did but law arising upon the face of the indictment look on.” And in 1 East, Pleas of the Crown, has never been adjudicated in Kentucky, 257, it is said: "Where divers persons resolve we give the indictment in its entirety: generally to resist all opposers in the com"The grand jury of Knott county, in the mission of any breach of the peace, and to name and by the authority of the common- execute it with violence, or in such a manner wealth of Kentucky accuse John Moore and as naturally tends to raise tumults and afJohn Kelly of the crime of willful murder frays, as by committing a violent dissension committed as follows: The said defendants with great numbers, or going to beat a man, on the 20th day of March 1905, in the county or rob a park, or standing in opposition to and circuit aforesaid, did unlawfully, will- the sheriff's posse, they must at their peril fully, maliciously, feloniously, and of their abide the event of their actions." malices aforethought kill, slay and murder But this is not the case we have at bar. Anderson Young by causing said Young to Here the homicide was not committed by the be shot with a rifle gun loaded with powder conspirators, either in the pursuance of the and leaden ball or other hard and explosive conspiracy or at all; but it was the result of substances. The said gun was at the time in action on the part of John Young, the propriethe hands of John Young who at the time tor of the house, in opposition to the conassaulted by the defendant John Moore spiracy, and entirely contrary to the wishes with the felonious intent to rob and kill the and hopes of the conspirators. In order that said John Young who shot or discharged the one may be guilty of homicide, the act must said gun at said Moore in his necessary be done by him actually or constructively, self-defense and in the defense of his house and that cannot be, unless the crime be comand killed the said Anderson Young. The mitted by his own band, or by the hands of said defendants unlawfully, willfully, felo- some one acting in concert with him, or in niously did conspire, band and confederate furtherance of a common object or purpose. themselves together for the purpose of com- The defendants can in no sense be said to mitting robbery upon the person of John have aided or abetted John Young, for he was Young and in pursuance of said conspiracy firing at them; and to hold them responsible and confederacy and while the same was criminally for the accidental death of a byexisting the said defendant John Moore willstander, growing out of his bad aim, would fully, maliciously and feloniously went to the be carrying the rule of criminal responsihouse of said John Young and assaulted and bility for the acts of others beyond all rearobbed the said Young and the said Young, son. Suppose, instead of killing an innocent in order to defend himself and his house bystander, Young had killed Moore, one of from the unlawful acts of said Moore he shot the robbers; would the survivor have been and killed the said Anderson Young as afore- guilty of murder? And yet, if the principle said ; that the said defendant John Kelly did sought to be maintained by the commonwillfully, feloniously and of his malice afore- wealth be sound, the survivor would necessathought counseled, advised and encouraged rily be guilty of murder, because the owner of the said defendant Moore to commit said the house to be robbed had killed his companrobbery against the peace and dignity of the ion; for he could just as truly be said to have commonwealth of Kentucky.” A general de aided and abetted the owner of the house in murrer to the indictment was interposed by that case as in this. Indeed, the matter could the defendants and sustained by the court, be carried still further. The dead robber and the indictment dismissed, from which would also be guilty of murder, because his judgment the commonwealth appeals.

part in the causation of the homicide of It is unquestionably true that, where two which he was the victim would have been or more persons conspire or confederate to- precisely the same as that which resulted gether to commit a felony, each is criminally in the death of Anderson Young. In other responsible for every crime committed by his words, the acts of the defendants provoked co-conspirators done in pursuance of the orig- and justified the shooting on the part of inal conspiracy, and which naturally or John Young, and if they are criminally rereasonably might be anticipated to result sponsible for the accidental death of a byfrom it. Therefore, if either of the defend- stander shot by Young, they would also ants, in attempting to commit the robbery be guilty of murder if he had killed one of for which they conspired, had shot and killed themselves. The illustration carried to this John Young, or had shot at John Young and, extreme exposes the unsoundness of the post: missing him, had killed a bystander, both tion of the commonwealth in the matter in would have been guilty of murder. In 1 hand. Hale, Pleas of the Crown, 441, the rule is thus While, as we have heretofore said, this is a stated: “If divers persons come in one com- question of first impression in Kentucky, we pany to do any unlawful thing, as to kill, are not without high authority in support of rob, or beat a man, or to commit a riot, or to the position we seek to maintain in this do any other trespass, and one of them in da opinion. In the case of Commonwealth V.

Campbell, 7 Allen, 541, 83 Am. Dec. 705, it appears that the defendants had conspired to create a tumult or riot, and in quelling it the officers by accident killed an innocent bystander. In a learned opinion the Supreme Court of Massachusetts held that the conspirators were not guilty of murder, and in the argument the identical case we have here is supposed and used to illustrate the unsoundness of the position of the commonwealth of Massachusetts in regard to the guilt of the parties. Said the court: "Suppose, for example, a burglar attempts to break into a dwelling house, and the owner or occupant, while striving to resist and prevent the unlawful entrance, by misadventure kills his own servant; can the burglar in such case be deemed guilty of criminal homl. cide? Certainly not. The act was not done by him, or with his knowledge or consent; nor was it a necessary or natural consequence of the commission of the offense in which he was engaged. He could not, therefore, have contemplated or intended it." In the case of Butler v. People (Ill.) 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423, several had banded themselves together to create a riot at a circus in Prairie City. The four de fendants attacked the city marshal, and made it necessary for him in self-defense to fire at bis assailants, and in so doing he missed them and killed an innocent bystander. The Supreme Court of Illinois reversed a judg. ment of conviction against the conspirators had under these facts, holding that the death of the bystander was not within the scope of the original conspiracy, but in opposition to it, and therefore the defendants were not guilty. In Bishop's New Criminal Law, vol. 1, § 637, it is said: “If those suppressing a riot accidentally kill an innocent third person, the rioters are not guilty of the homicide; for in no way did they concur in or encourage the act which caused death."

No authority is cited in support of the opposing principle, and we therefore deem, both in reason and authority, the judgment of the circuit court dismissing the indictment must be affirmed, and it is so ordered.

eler by collision with a street car, that if the injury, though occasioned by contributory neg. ligence, could have been avoided by the motorman by the exercise of ordinary care, plaintiff is entitled to recover, is erroneous, because it eliminates the question whether the motorman knew, or might by exercise of ordinary care have known, of the traveler's peril.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, 8 261.) 3. TRIAL-DEATH BY WRONGFUL ACT-INSTRUCTIONS.

An instruction, in an action for death by wrongful act, that in considering the damages the jury might consider the amount that decedent was earning prior to his death and all circumstances touching his capacity to earn, was erroneous, as giving prominence to certain evidence in the case. 4. STREET RAILROADS-INJURY TO TRAVELER -EVIDENCE-INSTRUCTIONS.

Where, in an action against a street railway company for the death of a traveler by collision with a street car, defendant's evidence showed that the car was close to the wagon in which decedent was riding while it was on the side of the car track, that the driver turned on the track, and that it was impossible for the motorman to prevent the collision, the refusal to charge that the motorman was under no obligation to stop his car as long as the wagon was in a place of safety, and that he had a right to presume that the wagon would remain in a place of safety until some indication was given that it would get into a place of danger, and that if the motorman used ordinary care to prevent the collision as soon as he discovered, or could have discovered by ordinary care, that plaintiff was in peril, plaintiff could not recover, was erroneous. 5. EVIDENCE-EXPERIMENTS.

In an action against a street railway company for the death of a traveler in a collision with a car, evidence of experiments made with another horse than that driven at the time of the accident, for the purpose of determining the time it took to turn and cross the tracks, was inadmissible.

(Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, 8 439.]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division.

“Not to be officially reported.”

Action by John Hoskins' administrator against the Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Fairleigh, Straus & Fairleigh, Kohn, Baird & Spindle, and R. L. Greene, for appellant. Augustus E. Wilson and John R. Watts, for appellee.

LOUISVILLE RY. CO. V. HOSKINS'

ADM'R (Court of Appeals of Kentucky. Oct. 5, 1905.) 1. STREET RAILROADS-COLLISIONS WITH CARS -INJURIES TO TRAVELER — CONTRIBUTORY NEGLIGENCE.

Where there was contributory negligence on the part of a traveler injured in a collision with a street car, there can be no recovery unless his peril was, or could by ordinary care have been, discovered by the servants in charge of the car, and the injury avoided by the exercise of ordinary care.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, $ 219.] 2. SAME-INSTRUCTIONS.

An instruction, in an action against a street railroad company for injuries to a trav.

HOBSON, C. J. John Hoskins was a contracting painter in Louisville. On October 23, 1901, he was in an express wagon, which was hired by him and driven by a man named Veith. They went out Fourth street to a house near Breckinridge, and there delivered some paints. The horse was headed south when they got in the wagon. Veith then asked Hoskins where he wanted to go next. Hoskins said to Eleventh and Maple streets, and Veith replied then that they would turn around and go down Broadway. At this point they looked back to see if a street car was coming, and saw a car at the York street crossing, or about there. Veith, thinking that he had time enough to turn around and

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