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fused to resign his administratorship with the fraudulent intent to defeat appellants' claim and obstruct their suit, for which reasons he was made a party to the action, and joined with appellee the Sebree Coal & Mining Company as a defendant. The appellees filed a special demurrer to the petition upon the ground of alleged misjoinder of parties, want of capacity in the appellants to sue, and want of jurisdiction of the parties by the court. The demurrer was sustained by the lower court. Appellants failing to plead further, the petition was dismissed, and of that judgment they now complain.

The demurrer was sustained upon the ground that the action could not be maintained by the widow and children of the decedent, but should have been brought, if at all, by the administrator alone. It is insisted for appellees that the right to recover damages for the death of a person resulting from the negligence of another is confined by section 241, Const., section 6, Ky. St. 1903, and section 21, Civ. Code, to the personal representative of the decedent, and that by the provisions of section 3882, Ky. St. 1903, he alone may "compromise and settle any claim or demand for damages growing out of injury to or the death of the decedent," and that inasmuch as appellants have elected to sue under the statute that is, for the death of decedentinstead of at the common law, to recover for his sufferings, they are attempting to assert a demand for which only the administrator may sue. Undoubtedly the right of action in such a case as this is in the personal representative, but the statute which gives him the right of action as clearly makes the widow and children of the decedent the beneficiaries, for they take the damages recovered. The personal property of an intestate does not pass to or vest in the heir at law, but the personal representative appointed as provided by law. If suit be necessary for the recovery of a demand due the estate of an intestate, it must be brought by the personal representative; but if he fail to sue the debtor, and refuse on demand of the heir at law to do so, the latter may bring the action by making the administrator a defendant. The same is true as to guardian and ward, trustee and cestui que trust. This doctrine is supported by numerous authorities. Brunk v. Means, 11 B. Mon. 216; McChord v. Fisher, 13 B. Mon. 194; Roberts' Adm'r v. Eales, 10 Ky. Law Rep. 360; Loyd v. Loyd, 46 S. W. 485, 20 Ky. Law Rep. 347. The same rule obtains where an administrator or guardian refuses to defend an action against the estate of the intestate or ward, in which event the heir or ward may interpose and be permitted by the court to defend. Indeed, this rule is recognized by the Civil Code, section 24 of which provides: "But if consent of one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition."

No reason is perceived for not applying the foregoing wise and salutary rule to the case at bar. Indeed, a greater reason exists for doing so than in any of the cases cited, for here the averment is made, not only that the administrator has refused to comply with the demand made upon him by the widow and children of the intestate to sue appellee Sebree Coal & Mining Company, but that he has entered into a fraudulent collusion with it to prevent the bringing of the action, that it may escape liability for the death of the intestate alleged to have been caused by its negligence, and, further, that the fraudulent collusion also went to the extent of procuring the appointment of the administrator for the purpose of preventing the bringing of the action. The demurrer admits the truth of the averments of fraud and collusion contained in the petition, and also the alleged facts manifesting the appellants' cause of action. The reason of the rule allowing the appellants to maintain this action by making the administrator a defendant is as manifest as would be the injustice of refusing them the right to do so. A wrongdoer should not be permitted by collusion and fraud to procure the appointment of an administrator and control him, to defeat an action and recovery for the death of his intestate caused by the negligence of such wrongdoer, as here charged, and admitted by the demurrer.

Judgment reversed, and cause remanded, with directions to the lower court to overrule the demurrer to the petition, and for further proceedings consistent with this opinion.

FOX v. COMMERCIAL PRESS CO. (Court of Appeals of Kentucky. Sept. 26, 1905.)

1. ESTOPPEL-GROUNDS.

A third person represented to plaintiff that he had a contract with a newspaper company to sell all copies of the paper within a certain territory. Plaintiff relied on the representations and paid the third person a specified sum for his rights. Thereafter the company recognized plaintiff as the owner of the third person's rights. Held insufficient to estop the company from asserting that the third person had no contractual rights; it not being shown that it knew the terms of the contract between plaintiff and the person.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Estoppel, §§ 128--132, 242--246.] 2. CONTRACTS-TERMINATION.

A contract whereby a company agrees to give a person the exclusive right to sell its newspaper in a territory described so long as the company should publish it terminates on the company going out of business.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. "Not to be officially reported."

Action by Joseph Fox against the Commercial Press Company. From judgment dismissing the petition, plaintiff appeals. Affirmed.

Wirgman & Underwood and Baird & Rich

ardson, for appellant. Bodley, Baskin & Flexner and C. R. Robinson, for appellee.

HOBSON, C. J. Appellant complains of the judgment of the circuit court dismissing on demurrer his petition seeking the recovery of $300 damages of appellee. The material part of his petition is as follows: "That about eight years ago, one Charles Herrman represented to plaintiff that he was the sole owner of a certain exclusive right and privilege to sell and deliver any and all copies of the newspaper published by the Louisville Press Company within the following bounded territory in the city of Louisville, towit: [Here follows boundary.] That said Herrman further represented to plaintiff that he [said Herrman] was under a corresponding liability to faithfully and promptly deliver said newspapers in said boundaries, and that said Louisville Press Company was bound to sell to said Herrman, from time to time, as many copies of said newspaper as might be necessary to supply subscribers in said boundaries, so long as said Louisville Press Company should publish such newspapers, and so long as he [said Herrman] should faithfully and promptly deliver said newspapers in said boundaries and promptly pay said Louisville Press Company for said newspapers. That said Herrman further represented to plaintiff that, should he [said Herrman] fail to faithfully and promptly deliver said newspapers in said boundaries, or fail to promptly pay said Louisville Press Company for said newspapers, then said Louisville Press Company should have the right to require said Herrman to relinquish said right to it upon paying him the reasonable value thereof, and after having notified him that he was not delivering said papers promptly and faithfully in said boundaries, or that he was not promptly paying said Louisville Press Company for said papers, and after having given him a reasonable time within which to sell or dispose of said right himself to a competent person who would perform all of said obligations. That said Herrman further represented to plaintiff that he [said Herrman] had been authorized by said Louisville Press Company to sell and dispose of said right, with all of its emoluments and obligations, to any responsible and reliable person, and said Herrman offered to sell said right to plaintiff for the sum of $300. That plaintiff relied on the representations thus made by said Herrman, and paid said Herrman $300 for said right. The said Louisville Press Company thereupon accepted the plaintiff in the place and stead of said Herrman in the exercise and ownership of said right, and recognized and admitted the ownership of plaintiff of such right as represented by said Herrman. That, had not said Louisville Press Company thus accepted him in the place and stead of said Herrman, he would have demanded and recovered from said Herrman said $300. That at the time said representa

tions were made to plaintiff by said Herrman, and at the time plaintiff was accepted in the place and stead of said Herrman by said Louisville Press Company, and for a long time subsequent thereto, said Louisville Press Company was a corporation organized under and existing by virtue of the laws of the state of Kentucky, with power to make contracts and to sue and be sued in its corporate name. That plaintiff continually exercised and held said right, and continuosly, faithfully, and promptly delivered said newspapers in said boundaries, and promptly paid said Louisville Press Company for said newspapers until the day of -, 1902, at which date the defendant, Commercial Press Company, purchased from said Louisville Press Company the business and good will of said Louisville Press Company. That at said time plaintiff's right was very valuable to him, and the obligation of plaintiff to faithfully and promptly deliver said newspapers in said boundaries and to promptly pay said Louisville Press Company for said newspapers was a valuable asset of said Louisville Press Company, and was so considered by the defendant, Commercial Press Company, in making said purchase. That upon said purchase being made the defendant continued the publication of said newspapers, but gradually changed the name of said publication. That defendant recognized the plaintiff's exclusive right to sell and deliver its newspapers in said boundaries, and that defendant also exercised its right to require plaintiff to deliver said newspapers in said boundaries promptly and faithfully and to pay defendant promptly for said newspapers; and plaintiff says that he did promptly and faithfully deliver in said boundaries the newspapers published by the defendant, and did promptly pay defendant for same, until February 14, 1903. That a short time before this date, and after defendant had succeeded in establishing itself in the good will sold by the aforesaid Louisville Press Company, defendant demanded that plaintiff sell to it plaintiff's said right for the sum of $75. That plaintiff refused to accede to said demands, and thereupon, on February 14, 1903, defendant did, without any fault on the part of the plaintiff, wrongfully refuse thereafter to sell the plaintiff any of its newspapers to be sold by plaintiff in the aforesaid boundaries, and informed plaintiff that it would no longer recognize plaintiff's said exclusive right and privilege to sell and deliver said newspapers in said boundaries, and converted said right and privilege to its own use, thus depriving plaintiff thereof. That said right was reasonably worth the sum of $300 at said time. Wherefore plaintiff prays judgment against the defendant for $300, with interest thereon at the rate of 6 per cent. per annum from the 14th day of February, 1903, for his costs herein expended, and for all other proper relief."

It will be observed that it is simply charged in the petition that Herrman represented to the plaintiff that he (Herrman) had a certain contract with the Louisville Press Company. It is nowhere averred that Herrman in fact had the contract with that company which is set up in the petition. All that is stated in the petition may be true, and Herrman may have had no contract at all with the Louisville Press Company. It is not averred that the plaintiff paid Herrman $300 upon the faith of any representations made to him by the Louisville Press Company, or that plaintiff was in any manner induced by the Louisville Press Company to make the contract with Herrman and pay him $300. It is simply averred that the plaintiff relied upon the representations made by Herrman and paid Herrman $300 for his rights, and thereupon the Louisville Press Company accepted plaintiff in place of Herrman and recognized and admitted the ownership of plaintiff of such rights as represented by Herrman, and but for this he would have demanded and recovered from Herrman his $300. This is not sufficient to create an estoppel, for the plaintiff had already parted with his money, and it is not even shown that the Press Company, in accepting plaintiff, knew what representations Herrman had made, or knew that plaintiff was relying on its action in any way when it admitted that he owned the rights of Herrman. There is nothing in the petition to show that the Louisville Press Company authorized Herrman to make the contract with plaintiff, .or that he was its agent in making it. No principle of agency therefore applies, and the estoppel fails, because it is not shown that the Press Company knew what was the contract between the plaintiff and Herrman, or that it should have known that its conduct was misleading the plaintiff in any way. agent's authority cannot be shown by his own representations.

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The plaintiff enjoyed his contract for eight years. The contract was represented by Herrman to be that he was to sell the paper as long as the Louisville Press Company should publish it. This the plaintiff did. The Louisville Press Company sold out to the appellee and no longer publishes the paper. We do not think that the contract, fairly construed, can mean that appellant was bound to sell the newspaper in the district named if it was published by another, or that he would have been liable to an action by the Commercial Press Company if he had been sued by it for refusing to sell its papers after it bought out the old company. It was a personal contract between the plaintiff and the old company. The purchasing corporation did not assume the obligations of the old company simply by buying its paper, plant, and good will. Such a contract as the plaintiff alleges did not run with the property. The rule is that contracts indefinite as to duration may be terminated

by either party at will. A contract to furnish a certain man with newspapers to sell as long as the company published the newspaper must be presumed to have been intended as simply the company's obligation, and to cease when the company went out of busi

ness.

Judgment affirmed.

BOARD OF TRUSTEES OF FORDSVILLE et al. v. POSTEL et al.

(Court of Appeals of Kentucky. Sept. 26, 1905.)

1. TRUSTS-FOLLOWING TRUST FUNDS-Sale OF VOID BONDS-RIGHT OF BONDHOLDERS.

The holders of void bonds issued by a school district in violation of Const. § 157, may obtain relief, under the doctrine that equity follows a fund, on showing that the proceeds of the bonds were used exclusively in procuring a lot, schoolhouse thereon, and school furniture. 2. SAME STATUTORY PROVISIONS.

Ky. St. 1903, § 2353, providing that, when a deed shall be made to one person and the consideration shall be paid by another, no trust shall result, but this shall not apply to a case where a grantee takes a deed in his name without the consent of the person paying the consideration, does not affect the equitable doctrine that equity follows a fund and compels a restitution, as long as it can be identified. 3. APPEAL HARMLESS ERROR JUDGMENT. Where bonds issued by a school district are void, and the proceeds are used in the erection of a schoolhouse, that the judgment in favor of the holders of the bonds in a suit to follow the proceeds thereof provides for a conveyance to them of the property, instead of a sale thereof, is not prejudicial, where the property is not of more value than the fund derived from the bonds.

4. PARTIES-REAL PARTY IN INTEREST.

The holders of bonds illegally issued by a school district stand in the place of the original purchasers of the bonds, and may maintain a suit in their name as the real party in interest to recover from the proceeds of the property purchased by the proceeds of the sale of the bonds the amount due them.

Appeal from Circuit Court, Ohio County. "To be officially reported."

Action by John Philip Postel and others against the board of trustees of Fordsville and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Glenn & Ringo, for appellants. E. B. Anderson, Geo. W. Jolly, and G. B. Likens, for appellees.

HOBSON, C. J. In the year 1897 the trustees of the Fordsville graded common school district issued bonds to the amount of $4,000 on behalf of the district for the purpose of providing it with a lot, schoolhouse, and suitable furniture. The bonds were sold, and the trustees used the proceeds of the sale in buying a lot, building a schoolhouse, and furnishing it. But no vote of the legal voters of the district was taken before the issual of the bonds, and they were adjudged void under section 157 of the state Constitution: "No county, city, town, taxing district, or

other municipality shall be authorized or permitted to become indebted in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of twothirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same." The holders of the bonds, being in part the original purchasers and in part persons who had bought the bonds from them, instituted this action in equity asking that the lot, house and furniture which was purchased with the proceeds of the bonds be transferred to them; and, the court having adjudged them the relief sought, the school district appeals.

Appellant relies on Grady v. Pruit (Ky.) 63 S. W., 283, and Grady v. Landram, Id. 284. In these cases the contractor who had built the schoolhouse, and to whom a balance of $604 was due, sought in the first case to hold the trustees personally liable, and in the second to remove the house or such part of it as would be of value $604, or place the house in the hands of the receiver. The district had paid him $2,173 on the contract. It was held in the first case that the trustees were not personally liable, and in the second that, the building being a single structure, a part of it could not be removed without injury to the remainder, and, the district having paid $2,173 on the building, the chancellor could not destroy $2,173 worth of property belonging to the district to give the contractor $604. It was also held in these cases that the contract, being void under the Constitution, could not be enforced directly or indirectly, and therefore that the property could not be placed in the hands of a receiver. To the same effect is the opinion of the Supreme Court of the United States in Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. 820, 29 L. Ed. 132. In that case the city of Litchfield had issued bonds which were void under the Constitution and with a part of the proceeds of the bonds and other funds had constructed a system of waterworks for the city. The land on which the works were constructed was bought before the bonds were issued. The streets through which the pipes were laid were public property then owned by the city, and much of the expense of the construction of the waterworks was paid by taxation or other resources of the city. The plaintiffs were unable to identify the property which represented the money they had paid, so that it could be reclaimed and delivered without taking other property or injuring other persons or interfering with their rights. The bill was dismissed.

The case before us is distinguishable from these cases. The money which the plaintiff's

paid is distinctly traced into the schoolhouse, the lot, and furniture, and no other money went into them. This property can be reclaimed, without taking any other property with it or injuring any other person or interfering with his rights. In Chapman v. Douglas County, 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378, land was conveyed to a county for a poorhouse. The county had no authority under the law to buy the land. It was held that the county must give up the land to the vendor, when it failed to comply with its contract; in other words, that it could not keep the land which it had received under the illegal contract. In Geer v. School District, 111 Fed. 682, 49 C. C. A. 539, it was held by the Circuit Court of Appeals of the United States of the Eighth Circuit, that, where a school district issued bonds without authority and used the proceeds to pay a debt which it owed, the bondholders were entitled to be subrogated to the rights of the creditors whose debts their money had paid; the bonds being void. The same principle was followed by the same court in Kearny County v. Irvine, 126 Fed. 689, 61 C. C. A. 607, where a county issued bonds and used the proceeds to pay off the outstanding county warrants which it was authorized to issue. The bonds being void under a constitutional provision similar to ours, it was held that the bondholders were entitled by subrogation to the rights of the holders of the county warrants which had been paid off with the proceeds of the bonds.

No liability, direct or indirect, may be imposed upon the school district under the bonds in question. It is not liable on the bonds, nor can it be made liable by indirection in any way. But, if we ignore the bond transaction altogether, what have we? The district received $4,000 from the bondholders. The bonds being void, the district should have returned the money to the bondholders. If the bondholders had learned of the invalidity of the bonds while the district still had the $4,000 in its treasury which they had paid to it, manifestly a court of equity would have required the district to pay back their money to them. It was money obtained by a mutual mistake. While under the Constitution no liability would attach to the district for the money if it had lost it, or if it had spent it and the fund could not be identified and followed, where it may be followed and identified, there is no more reason why property which represents the fund should not be returned than there would be for not returning the money, if it had been placed in a bag and the district had the bag locked up in its safe. The purpose of the Constitution is not to enrich municipalities at the expense of innocent people who deal with them, and when they repudiate their bonds they must act honestly. A loss must not be placed upon the district; but, when justice may be done

without inflicting any loss upon the district, equity will lay hold of the conscience of the parties and make them do what is just and right. To illustrate: If, while the commonlaw disability of coverture was in force, a married woman had borrowed $400 and given her note for it, and, when sued on the note, had pleaded her coverture, if she still had the $400 in bank, equity would have required her to surrender the money, or if she had invested the $400 in a horse, and the fund could be clearly identified, equity would compel her to surrender the horse. In other words, as has been held, coverture is a shield, not a sword, and a married woman is never allowed to use her coverture to enrich herself at the expense of others. Chilton v. Braiden, 2 Black, 458, 17 L. Ed. 304. The same rule has been applied in the case of infants. Ison v. Cornett, 75 S. W. 204, 25 Ky. Law Rep. 366, and cases cited.

Section 2353, Ky. St. 1903, is relied on for appellants: "When a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter, but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person." This statute was not intended to affect the equitable doctrine that equity would follow a fund and compel restitution as long as it could be identified and followed. It was not the aim of the statute to enable one person to keep the money of another, and thus be enriched at his expense, simply because, instead of holding the money in specie, he has invested it in a tract of land. The true owner of a fund may in equity pursue it, where it is clearly identified, equally whether it has been transmuted by the holder into personalty or realty. Properly, under the statute, he should not be adjudged the land, but a sale of it to satisfy his claim. But in this case appellants are not prejudiced by the form of the judgment, as the property is not of value more than the fund. We see no reason why the right to follow a fund should not be applied against municipalities under the clause of the Constitution above quoted, just as it is against other persons obtaining the property of another under a void contract, where the fund may be identified and is separated from other property of the municipality. The present holders of the bonds stand by subrogation in the shoes of the original purchasers from whom they bought, and under the Code the action may be maintained in the name of the real party in interest. The judgment complained of does justice between the parties, and we see no reason for disturbing it. Judgment affirmed.

CAMPBELL et al. v. ASHER.

(Court of Appeals of Kentucky. Sept. 26,

1. CONVEYANCES

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1905.)

HUSBAND AND WIFE RIGHTS OF HER CHILDREN AS HEIRS.

A deed executed to a husband and wife subsequent to the statute abolishing resulting trusts gives to each an undivided half interest in the land as tenants in common, without reference to what part of the consideration each of them paid, and without reference to the understanding of the husband accepting the deed; and their children take an undivided half as heirs of the wife on her death, and share with the children of the husband by a second wife on his death in the other half. 2. HOMESTEAD-PARTITION OF INTEREST OF INFANTS.

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DETERMINATION

In partition, the fee-simple interest of infants should be laid off with respect to their rights, given by Ky. St. 1903, § 1707, to occupy the homestead of their deceased father during their minority, and if the homestead is less than their fee-simple interest the latter should be made to include the former, and if the homestead is of greater value the fee-simple interest should be included in the homestead interest.

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

Action by T. J. Asher against Milburn Campbell and others. From a judgment for plaintiff, defendants appeal. Reversed.

Logan & Jeffries, for appellant Milburn Campbell. Calvin Hurst, for appellants Adeline and Clementine Campbell.

O'REAR, J. Prior to September 3, 1857, Mount Pursifull, who owned a considerable quantity of land on the Cumberland river in what was then Harlan county, this state, placed his son, H. C. Pursifull, in possession of a portion of it, under some kind of an arrangement not clearly disclosed by the record, whether it was a gift or a sale. Afterward Mount Pursifull also placed in possession of an adjoining tract his son-in-law, Wilkerson Campbell, and the latter's wife, Martha Campbell. Wilkerson Campbell having bought the tract of H. C. Pursifull, Mount Pursifull on September 8, 1857, made a conveyance of both tracts by the following writing:

"Know all men to these presents shall come greeting that I Mount Pursifull and Mary his wife both of the county of Harlan and state of Kentucky, have this day given and bequeathed unto Wilkerson Campbell and Martha his wife a certain tract or parcel of land supposed to be 500 A., be the same more or less, and lying and being in the Co. and state aforesaid on the waters of Cumberland river and bounded as follows, to wit: Beginning near the head of a branch about a quarter of a mile below said Camp's house, thence down the branch to Cumberland river, thence up the river with the meanders thereof so as to include the island to the lower end of Mount Pursifull field below the mill, thence south to Mount

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