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 alleged 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 beyond 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 adequate. 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 whether 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. 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. 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. 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 Jefferson 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 relations 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 Mary E. Levi's will, with the approval of the chancellor of the Jefferson circuit court; and the proceeds, aggregating $12,818.34, together with what was left of her personal estate after satisfying the small specific legacies, were by it distributed to the persons named in her will. Among the parcels of realty thus disposed of was a tract of land of 76 acres lying in Jefferson county, which was purchased by the appellant, Lillie E. Levi. A deed of conveyance was made her therefor by the Fidelity Trust & Safety Vault Company as "trustee under the will of Mary E. Levi". Upon the payment by her of the purchase price she was given immediate possession of the land, and has ever since continuously remained in the undisturbed possession thereof. It appears, however, that in attempting to consummate a sale of the land, recently made to another, appellant was met by the purchaser with the objection that the will of Mrs. Levi did not pass to the Fidelity Trust & Safety Vault Company a good and sufficient title to the land, and that in consequence the deed from it as trustee to appellant did not convey to her a good and valid title, and because of these supposed defects in her title the purchaser declined to accept the deed tendered or to take the property. Thereupon appellant instituted this action to cancel the deed made her by the Fidelity Trust & Safety Vault Company, rescind the contract of sale, and recover of it the purchase price paid by her therefor. The chancellor adjudged that appellant received through the deed from appellee, Fidelity Trust & Safety Vault Company, 'trustee under the will of Mary E. Levi, a good and valid title to the land in controversy. Consequently the action was dismissed. Not dissatisfied with, but questioning, the correctness of the chancellor's conclusions, and especially his construction of the will of B. C. Levi, appellant asks of us a consideration and review of the question of title involved. The objection to the title of appellant is bottomed upon the theory that Mrs. Levi, in distributing to his and her relations the property devised her by the will of her husband, was limited to their next of kin, equally; whereas, the disposition made of it by her will, while equal (that is, giving one half to his and the other half to her relations) was not to the next of kin, but in the main to those related to them in a remoter degree. Although at the death of Mrs. Levi her deceased husband had six brothers living, also several nieces and nephews, children of a deceased brother, her will gave portions of the estate to but two of the brothers, one of the children of the deceased brother, and two of the nieces of her husband. Her will also gave a portion to the children of Mrs. Rebecca Robinson, and another portion to the children of Mary Clifton Duncan, though Rebecca Robinson and Mary Clifton Duncan were living nd were of the next of kin of Mary E. Levi. We are of opinion that the language of B. C. Levi's will admits of no other construction than that placed upon it by the chancellor. The language: "Previous to her death she [Mary E. Levi] may will or distribute to her relations 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" conferred upon her the power to distribute the estate of B. C. Levi, according to her discretion, to such of her relations and his relations as she might select. If she had the right to distribute any part of the estate during her life, or by will, to such of her relations and those of her deceased husband as she might "choose or desire" to have it, it follows that her selection of the objects of her bounty from among her own and her husband's relations cannot be questioned or interfered with. If this construction of the will is correct, it must be taken for granted that by the use of the word "relations" B. C. Levi did not intend to confine the distribution of the estate devised his wife to those who were directly of kin. It was manifestly used as meaning blood kin of any degree. So, if Mrs. Levi chose to give to the children of her sister, instead of the sister, or to the nieces or nephews of her husband, instead of his brothers, the estate left by him, she clearly had the right to do so, as she did not thereby violate the intention of the testator as expressed in his will. We think, if Mrs. Levi had died without exercising the power to distribute the estate conferred by the will of her husband,、 and a court of equity were called on to do so, it doubtless would hold that, as the right to select the relations to whom it should go was by the terms of the will personal to the widow, and she had failed to exercise it, the word "relations" should be construed as meaning the next of kin; and, the court not having the right to exercise the power of selection given the widow, the estate would be distributed to the next of kin as provided by statute. Our conclusion, therefore, is that the power conferred upon Mrs. Levi by the will of her husband is not coupled with an enforceable trust, because it imposed no obligation upon Mary E. Levi to will or distribute to the relations of herself and husband, or any of them, any portion of her deceased husband's estate. That instrument merely provides that "previous to her death she may will or distribute any of the property." She was not authorized to go outside of the class designated as "my relations" and "her relations," and give or will the property to a mere stranger, or one not related to her or her husband, but might at any time before her death, by a gift or successive gifts, have disposed of any part of the property to any person or persons related by blood to herself or husband; and the title of the donee would have become valid and perfect, without regard to any subsequent disposition of the remainder of the property. Therefore the power conferred upon Mary E. Levi by the will of her husband was a mere naked power, to be exercised at the discretion of the donee. Perry on Trusts, § 253. Pomeroy's Equity Jurisprudence, § 835. Our attention has been called by counsel to the use by the testator of the word "to," instead of the word "among," in that clause of the will defining the power which may be exercised by his wife in the matter of disposing of the estate devised, and it is argued that, while possessed of the power to give "to" any person answering the description of "relations," she was not required to make such gift "among all" of the relations. But, without relying upon such refinements of distinction, our examination of the authorities bearing upon the question under consideration has brought us to the conclusion that no better statement of the law controlling this case can be found than is given in Perry on Trusts, § 256: "If the donee of the power, or trustee, is to select from the donor's relations those to whom he is to give the property in the execution of the power, he may select from the whole circle of relations, whether near or distant." Sugden on Powers, p. 242. In Huling v. Fenner, 9. R. I. 410, the testator devised his property to his wife for life, "with full power to devise and bequeath the same, or any part thereof, to such of my relations of the Huling family as she shall in her discretion select." The donee of the power gave the whole property to one person, who was a “relation” of the husband, but not his next of kin. It was insisted that the power of selection given the wife was limited to the relation who might be the next of kin at the testator's death. In discussing this point in its opinion the court said: "This claim is supposed to be countenanced and supported by those cases where the power of appointment has not been executed, and in which the courts hold that the devise of the power creates a trust for the class among which the selection is to be made. In these cases, where the power is to devise to relations, and the power has not been exercised, it has been held that this trust shall not be extended to all kindred, however remote, because a range so illimitable would render the trust uncertain and difficult, if not impossible, of execution, but should be limited to those who are next of kin according to the statute of distribution. If the power be executed, then the object is made certain and definite, and the objection of uncertainty ceases. If the power be not exercised, then the trust must be held void for uncertainty, or as a devise direct to relations it must be thus limited; and the courts have taken the alternative to limit the trust, rather than to hold it void. They distinguish between the trust and the ap pointment. None of these cases hold that the appointment is thus limited. The principle is thus stated in Grant v. Lyman, 4 Russ. 292: 'Where the author of a power uses the term "relations," and the donee does not exercise the power, ordinarily the court will adopt the statute of distributions as a convenient rule of construction and will give the property to the next of kin; but the donee of the power has the right of selection among the relations of the donor, although not within the degree of next of kin. It was said, also, the same rule has been applied to the personal estate, where the word "family" has been used in the place of "relations." It is not necessary, therefore, to the validity of the gift and the power that the devise should be to the next of kin to the donor, nor that he should bear the family name." * * * It will be found that the English and American authorities on this question, with here and there an exception, sustain the doctrine announced in the case supra, and no Kentucky case has been cited that conflicts with it. Indeed, the only Kentucky cases that bear on the subject are all cases of powers coupled with a trust to be exercised for the benefit of "children," where the power was either not exercised at all, or not exercised as required by the donor of the power, and the court, having regard to the trust created, enforced it in a manner consonant with the principles of equity. In the case at bar the power conferred upon Mrs. Levi by the will of her husband was completely exercised while she was living by the terms of her will. The confidence reposed in her by the husband was not misplaced, for she not only provided for the distribution of the estate left by him as allowed by his will, but in addition inIcluded in the distribution a considerable estate of her own. In our opinion the appellant, under the wills of B. C. and Mary E. Levi and by the deed from the Fidelity & Safety Vault Company, received a good and perfect title to the land purchased by her. Wherefore the judgment is affirmed. COMMONWEALTH v. MOORE et al. (Court of Appeals of Kentucky. Sept. 27, 1905.) HOMICIDE-ROBBERY-ACCIDENTAL KILLING OF THIRD PERSON. Persons who assault one for the purpose of robbing him are not guilty of homicide, where he, shooting at them in self-defense, kills a third person. Appeal from Circuit Court, Knott County. "To be officially reported." John Moore and another were indicted for murder. The indictment was dismissed, and the commonwealth appeals. Affirmed. N. B. Hays, Atty. Gen., and Chas. I' ris, for the Commonwealth. BARKER, J. The appellees, John Moore and John Kelly, were indicted by the grand jury of Knott county, charged with the offense of willful murder. As the question of law arising upon the face of the indictment has never been adjudicated in Kentucky, | we give the indictment in its entirety: "The grand jury of Knott county, in the name and by the authority of the commonwealth of Kentucky accuse John Moore and John Kelly of the crime of willful murder committed as follows: The said defendants on the 20th day of March 1905, in the county and circuit aforesaid, did unlawfully, willfully, maliciously, feloniously, and of their malices aforethought kill, slay and murder Anderson Young by causing said Young to be shot with a rifle gun loaded with powder and leaden ball or other hard and explosive substances. The said gun was at the time in the hands of John Young who at the time assaulted by the defendant John Moore with the felonious intent to rob and kill the said John Young who shot or discharged the said gun at said Moore in his necessary self-defense and in the defense of his house and killed the said Anderson Young. The said defendants unlawfully, willfully, feloniously did conspire, band and confederate themselves together for the purpose of committing robbery upon the person of John Young and in pursuance of said conspiracy and confederacy and while the same was existing the said defendant John Moore willfully, maliciously and feloniously went to the house of said John Young and assaulted and robbed the said Young and the said Young, in order to defend himself and his house from the unlawful acts of said Moore he shot and killed the said Anderson Young as aforesaid; that the said defendant John Kelly did willfully, feloniously and of his malice aforethought counseled, advised and encouraged the said defendant Moore to commit said robbery against the peace and dignity of the commonwealth of Kentucky." A general demurrer to the indictment was interposed by the defendants and sustained by the court, and the indictment dismissed, from which judgment the commonwealth appeals. It is unquestionably true that, where two or more persons conspire or confederate together to commit a felony, each is criminally responsible for every crime committed by his co-conspirators done in pursuance of the original conspiracy, and which naturally or reasonably might be anticipated to result from it. Therefore, if either of the defendants, in attempting to commit the robbery for which they conspired, had shot and killed John Young, or had shot at John Young and, missing him, had killed a bystander, both would have been guilty of murder. In 1 Hale, Pleas of the Crown, 441, the rule is thus stated: "If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them in do ing thereof kill a man, this shall be adjudged murder in them all that are present of that party abetting him and consenting to the act or ready to aid him, although they did but look on." And in 1 East, Pleas of the Crown, 257, it is said: "Where divers persons resolve generally to resist all opposers in the commission of any breach of the peace, and to execute it with violence, or in such a manner as naturally tends to raise tumults and affrays, as by committing a violent dissension with great numbers, or going to beat a man, or rob a park, or standing in opposition to the sheriff's posse, they must at their peril abide the event of their actions." But this is not the case we have at bar. Here the homicide was not committed by the conspirators, either in the pursuance of the conspiracy or at all; but it was the result of action on the part of John Young, the proprietor of the house, in opposition to the conspiracy, and entirely contrary to the wishes and hopes of the conspirators. In order that one may be guilty of homicide, the act must be done by him actually or constructively, and that cannot be, unless the crime be committed by his own hand, or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose. The defendants can in no sense be said to have aided or abetted John Young, for he was firing at them; and to hold them responsible criminally for the accidental death of a bystander, growing out of his bad aim, would be carrying the rule of criminal responsibility for the acts of others beyond all reason. Suppose, instead of killing an innocent bystander, Young had killed Moore, one of the robbers; would the survivor have been guilty of murder? And yet, if the principle sought to be maintained by the commonwealth be sound, the survivor would necessarily be guilty of murder, because the owner of the house to be robbed had killed his companion; for he could just as truly be said to have aided and abetted the owner of the house in that case as in this. Indeed, the matter could be carried still further. The dead robber would also be guilty of murder, because his part in the causation of the homicide of which he was the victim would have been precisely the same as that which resulted in the death of Anderson Young. In other words, the acts of the defendants provoked and justified the shooting on the part of John Young, and if they are criminally responsible for the accidental death of a bystander shot by Young, they would also be guilty of murder if he had killed one of themselves. The illustration carried to this extreme exposes the unsoundness of the posi tion of the commonwealth in the matter in hand. While, as we have heretofore said, this is a question of first impression in Kentucky, we are not without high authority in support of the position we seek to maintain in this 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 homicide? 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." 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 his assailants, and in so doing he missed them and killed an innocent bystander. The Supreme Court of Illinois reversed a judgment 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." In 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. LOUISVILLE RY. CO. v. HOSKINS' (Court of Appeals of Kentucky. Oct. 5, 1905.) 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 eler by collision with a street car, that if the injury, though occasioned by contributory negligence, 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, § 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, § 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. 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 |