a pistol, or to go into particulars as to what he had done in his past life. The examination should have been confined to the witness' character for truthfulness or his general moral character.

By the incompetent evidence above referred to the impression, no doubt, was left upon the minds of the jury that there was an apprehension among his neighbors that appellant would hurt somebody about his wife, and this impression was fortified by the improper examination to which we have referred. When this impression was fastened upon the minds of the jurors, a foundation was laid for them to conclude that it was probable that he had killed Bryant because he was jealous of him. While we would not reverse the judgment for the conduct of the commonwealth attorney, which was not objected to, and might not reverse for the admission of the evidence which was objected to, if the proof was clear as to the defendant's guilt and the trial was otherwise fair, still the evidence was prejudicial, and being given undue weight by the matters indicated, may have had great effect upon the jury. In view of the inconclusiveness of the evidence against the defendant, and in view of the conduct of the commonwealth attorney in asking the questions above referred to, we cannot say that the defendant has had a fair trial, or that upon the whole case there was no substantial error to his prejudice.

Judgment reversed, and cause remanded. with directions to grant appellant a new trial.

CHEATHAM et al. v. HICKS et al. (Court of Appeals of Kentucky. Sept. 28, 1905.)

1. FRAUDS, Statute of-BOUNDARIES-AgreeMENT AS TO LINE-VALIDITY-EFFECT.

Where adjoining landowners orally agree upon a boundary line and occupy according to the agreement, it is not within the statute of frauds, but is enforceable in equity as against subsequent owners.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 112.]

2. TRESPASS-CUTTING TIMBER-EVIDENCE.

In trespass for cutting and removing timber from plaintiff's land, evidence held not to show plaintiff to be the owner of the land on which the alleged trespass was committed.

Appeal from Circuit Court, McLean County.

"Not to be officially reported."

Action by Alice Cheatham and others against Byrd C. Hicks and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

sued appellees, Hicks, McFarland, and McCarty, in the circuit court for trespass, alleged in the petition to have been committed by cutting and removing timber from land in McLean county of which Alice Cheatham claims to be the owner and Robards and Kennedy in possession as her tenants. Upon the ground of the alleged insolvency of the appellees, an injunction was obtained by appellants to prevent the further cutting of timber from the land by them. The appellee Hicks answered, denying appellant's ownership of the land from which the timber was cut and removed, averring that it is owned by and in the possession of one Charles Hofferberth, setting forth the boundary of the entire tract claimed by Hofferberth, of which that in controversy is alleged to be a part, and justifying his cutting of the timber upon the ground that it was authorized by Hofferberth, the alleged owner. By an amended petition, in the nature of a bill quia timet, filed by the appellant Cheatham, appellee Hofferberth was then made a party to the action, following which he also answered, denying appellant Cheatham's title or possession of the land described in the petition, setting up title in himself to the land in question, and averring that it was a part of a large tract owned by him, the boundary of which was given in the answer by metes and bounds and courses and distances. His answer also contained the averments: That he and those under whom he claims the land in controversy had, at the time of the institution of the action, been in the actual adverse possession of it and claiming to a well-defined and marked boundary for more than 15 years continuously, and, further, that during the lifetime of George W. Scantland, father of appellant Alice Cheatham, from whom the land descended to her, he (Scantland) claimed the land now in controversy, which was also then, as now, claimed by appellee Hofferberth; and to settle the dispute between them as to the line dividing their lands and prevent litigation they agreed that the true line between their lands was as follows: "Beginning at three maples on the bank of Green river, running thence to a stake, with a burr oak pointer, near a pin oak stump." And the line was thus established. That this agreement was made more than 25 years before the action was brought, and the line of division thus agreed upon and designated was thereafter always recognized by appellee and Scantland as the true line between their lands, and was so recognized by appellant until about the time of the institution of her action. That the line thus established left to appellee on his side of the line, and as part of the entire tract claimed by him, the land in controversy. The agreement as to the dividing line, and the marking and fixing of same in pursuance thereof, was relied in his answer as a bar to Replies were filed by ap

appellee action.

"sing

majority of those present voting for same on both passages, the yeas and nays being called and entered upon the journal: Provided, however, that all ordinances requiring the improvement of streets and alleys, or the construction of sewers, or fixing salaries, or prescribing penalties, or fixing the rate of taxation, or amount of licenses, or appropriating money, where the amount appropriated is in excess of one hundred dollars, shall, on each passage, receive the votes of two-thirds of all the councilmen then elected, the yeas and nays being called and entered on the journal."

It is insisted that the petition is insufficient, because it is averred in it that the ordinance was read and passed by the council on September 1, 1903, and it is not shown that it was twice publicly read and passed by the common council at two sessions held on different days; a majority of those present voting for it on both passages. The rule is that a general allegation that the council passed the ordinance is sufficient; it being presumed that the council did its duty. It is to be presumed that the pleader refers to the final passage of the ordinance, when he says that it was read and passed on September 1st. In Preston v. Roberts, 75 Ky. 579, the court said: "The allegation that an ordinance was passed was not the mere pleading of a conclusion, but of a fact, just as an allegation that a party executed a deed, a note, or other writing, or is the holder and owner of a bill of exchange, or the like, without alleging the facts which show that he did execute the writing or which make him the owner and holder of the bill." See Lexington v. Woolfolk, 78 S. W. 910, 25 Ky. Law Rep. 1817. If the defendant wishes to take issue as to the passage of the ordinance, he can do so by his answer, by traversing the allegations of the petition, and then, as the certified ordinance which is filed with the petition makes out a prima facie case for the plaintiff, the burden is on him to show that the council did not do its duty or conform in its proceedings to the statute.

It is averred in the petition that the work was accepted by the common council. It is stated in the petition that a copy of the resolution of the common council receiving the work as done according to the contract is filed therewith as part thereof, marked "E." The answer of the defendant does not traverse the allegations of the petition on this subject, and, when the case was submitted and was on trial, during the argument of the plaintiff's attorney, it appearing that exhibit E was not in the papers, the court allowed the city to file a copy of the exhibit. The paper so filed is not a copy of the resolution of the council receiving the work. Perhaps a mistake was made in getting the right paper; but, however this

may be, the defendant not having traversed the allegation of the petition that the work was accepted by the council, there was no issue between the parties on this subject, and it was admitted of record that the work had been accepted by the council. Section 3453, Ky. St. 1903, among other things, provides: "The liens given for the purposes named in the last four sections may be enforced by filing a petition in equity in favor of the contractor, or his assignee, against any or all the persons liable for the cost of said work, and it shall only be necessary for the plaintiff in the action to file a copy of the ordinance of the common council requiring the work to be done, a copy of the contract for doing the same, a copy of the engineer's report showing the respective liability of each person sued, a copy of the order or each resolution of the common council receiving the work as done according to the contract, which shall be, together with the corresponding allegations in the petition, prima facie evidence of the plaintiff's right of recovery, and in such cases the defendant shall not be allowed to make the defense that the work was not done according to contract, as against said plaintiff in the action."

It is insisted for appellant that, as a copy of the resolution accepting the work was not filed with the petition, the plaintiff failed to make out a prima facie case. Waiving the question whether it should be presumed under the pleadings that the exhibit was in fact filed with the petition and had simply been lost from the record, we think that where no issue is made as to a fact alleged in the pleading, and the fact is thus conceded of record, the failure to file an exhibit showing the fact is immaterial; and, the other papers required by the statute to make out a prima facie case being filed, there was a substantial compliance with the statute. Under section 134 of the Civil Code of Prac tice a judgment shall not be reversed for an error not affecting the substantial rights of the adverse party.

There is nothing in the record to raise the question of spoliation, or to show that anything more was assessed against the defendant's property than should have been assessed against it.

Judgment affirmed.

BARRET et al. v. GWYN et al. (Court of Appeals of Kentucky. Oct. 4, 1905.) 1. WILLS-CONSTRUCTION.

Where a will provided for the division of testator's residuary estate into equal shares, to be held in trust for testator's brothers and sisters, and at their death paid to their children, an only child of one of the sisters, who after his mother's death was paid a part of her share of the estate, took such share absolutely, so that when he died, his property passed under the law of descent and not under the will.

2. EXECUTORS AND ADMINISTRATORS — INSOLVENCY-Loss OF ASSETS OF ESTATEBY WHOM BORNE.

A will directed testator's residuary estate to be divided into equal portions and held in trust for testator's brothers and sisters; the share of each to be paid after the death of such brother or sister to his or her children. After a portion of their shares had been paid to the descendants of four of the legatees, the executor became insolvent, and part of the estate was thereby lost. Held, that the loss was to be borne by the whole estate, and not wholly by the shares which had not been paid, and hence, in making further payments from assets in process of collection, no payments should be made to those beneficiaries who had received partial payments until the payments to those who had received none of the principal should equal the amounts which had been paid to those who had received partial payments. 3. PLEADING-ANSWER-REPLY.

Where the answer of certain defendants is not made a cross-petition against their codefendants, the latter are not required to reply. Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by Henry W. Barret and others against Hugh G. Gwyn and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Alex G. Barrett and R. H. Blain, for appellants. Nathan J. Kahn, Chas. F. Taylor, and Guy H. Herdman, for appellees.

HOBSON, C. J. James Garvin died, a resident of Louisville, about the year 1859, the owner of a considerable estate. He had no children, and left a will by which he devised his entire estate to his executors, in trust for his two brothers, Samuel and William Garvin, five sisters, and the children of a deceased sister, to each one-eighth. William Garvin's share was left to him absolutely, but the shares of the other brother and the sisters were to be held by the executors during their lives, the income to be paid to them, and at their death the principal to be paid to their children, or, if any of them died without children or descendants, to the remaining brothers and sisters or their issue. The will also directed that the executors, as soon as in their judgment it was practicable to make a proper and judicious division of the residue of the estate, should divide it into eight shares, and upon making the division they should pay the income of each part to the person entitled to receive it, and upon the death of the brother or sisters to pay over to the lawful issue of the decedent forthwith the portion set apart for the parent. He also directed that, as soon as the division was made, the portion assigned to the children of the dead sister should be paid to them. He appointed his friends, John Bell and Samuel Gwyn, executors of the will. Gwyn only qualified, and on April 30, 1861, filed his petition in the Louisville chancery court, asking a construction of the will and the direction of the court in the execution of his trust. Settlements were made by him from time to time with the commissioner. Finally, in

March, 1865, it appeared that the executor had in his hands the sum of about $61,000, and thereupon the court entered a judgment construing the will, and directing the executor to pay over to William Garvin one-eighth of the sum in his hands, $7,625.19, and that he should pay the same amount to the children of the sister who was dead at the death of the testator, and also to the children of another sister who had since died. The order concludes with these words: "The other five-eighths of said residuary estate the executor will still hold in trust in accordance with the provisions of the testator's will."

Later it was made to appear to the court that M. J. Brown, another sister, had died, and the executor paid to her children another one-eighth of the fund, leaving in his hands something over $30,500. He had continued to collect the assets of the estate, and it appeared that he had in his hands the sum of $7,240.80 since the division was made in 1865; and he was ordered to hold this general fund. He reported to the court, before he paid Mrs. Brown's share, that $38,125.89 was invested in a house and lot in Brooklyn, certain bank stock, and some notes of the heirs which he had taken. After this the executor became insolvent, and R. H. Blain was appointed, in the year 1875, as administrator with the will annexed. Blain found the house and lot in Brooklyn incumbered by tax liens, the bank stock pledged for the personal debts of Gwyn, and the general fund of $7,240.80, which remained in the hands of the executor undivided, had disappeared. Blain finally sold the house in Brooklyn for $6,000 or $7,000. He succeeded in getting $3,000 or $4,000 from the bank stock, and $3,000 or $4,000 from the heirs to whom money had been loaned, making the total of the estate in his hands about $16,000. The testator owned 33 surveys of land in Texas, of 320 acres each, on which there were also unpaid taxes, and perhaps some of the land had been sold for taxes. Blain paid off the taxes in Texas, and, as directed by the court, paid out the income on the estate in his hands, until he finally resigned and settled his accounts in the year 1880. D. M. Rodman was thereupon appointed as trustee in his stead, and received the estate which Blain had in his hands. Rodman remained trustee until about the year 1888, paying out the income to the heirs, and in 1888 he fail ed, and the Louisville Trust Company was then appointed trustee.

The chief thing that the trust company got from the estate in Rodman's hands was a piece of Louisville property which belonged to Thomas Kennedy, his surety, and is yet in the hands of the trust company. What this property is worth does not clearly appear from the record. During the administration of Blain some of the Texas lands were sold and some were also sold during the administration of Rodman. Quite a number of sales have been made by the trust

At

company, so that now more than one-half of the land has been sold. One of the three sisters whose part of the estate was left in the executor's hands, Mrs. Kerr, died, a resident of Memphis, Tenn., about the year 1875, leaving an only son, John L. Kerr, who died shortly after his mother, intestate. Mrs. Kerr's death, Blain, as trustee, held a note secured by a mortgage on property in Memphis amounting to $4,080. Under the order of the court Blain released the mortgage, and took Kerr's receipt for the amount of the debt as so much distributed to him from the estate. Nothing since has been paid to this interest. About the year 1880 (the exact date is not shown) Samuel Garvin died without issue. At his death Mrs. Barret and Mrs. Hunter were the only two sisters living, and the trustee seems to have paid them the entire income on the estate from that time forward. They are now dead, and, all of the brothers and sisters of the testator being dead, the circuit court was called upon to adjust the rights of the parties in the estate in the hands of the trust company. At the time of the judgment there was only a balance of $5,092.36 in the trustee's hands, and it is not shown what will probably be realized from the remaining assets of the estate. The case presents several questions, by no means easy of solution, on which we will give our conclusions, without elaborating our reasons for them, as this would unduly lengthen this opinion.

1. The testator's will indicates a manifest purpose to equalize his brothers and sisters. He goes to great length to show that he intends to place them on an absolute equality. The spirit of the will forbids that any of them should be given an advantage over the others. When Samuel Garvin died without issue, his share did not descend to the surviving sisters, but to them and the descendants of those who were dead; that is, the descendants of those who were dead took their parents' shares, just as the parents would have taken them if living. When Mrs. Kerr died her son took her share absolutely, and when he died his property passed, not under the will, but under the law of descent.

2. In so far as the special fund of $30,569, which was left in the hands of the executor after paying off four of the heirs, has been lost by the insolvency of Gwyn or the insolvency of Rodman, the loss must fall upon the estate, and not upon the four shares alone that received nothing in the distribution. To hold otherwise would be to defeat that equality which the testator aimed to maintain. The order of the court simply directed the executor to hold the fund as directed by the will, and when it was lost in the executor's hands the case should be treated simply as one where some of the devisees have receivmoney from the executor, who became ivent before he distributed to the other ees. Before anything more is paid

upon the four shares, who received each $7,625.19, Kerr, who only received $4,080, must be made equal with them, and Samuel Garvin's heirs, who have received nothing, must receive $7,625.19. Mrs. Barret and Mrs. Hunter must also be made equal with the first four heirs before they receive anything further.

It is insisted for appellees that the case should now be settled by an application of the maxim that "in equity that will be treated as done which ought to have been done." But, if that had been done which ought to have been done, there would have been no case to settle. In that event the $30,569 would have been kept intact, and the yearly income paid to those entitled to it. When Mrs. Kerr died, her fourth would have been paid to her son, and not $4,080 merely. When Samuel Garvin died, his fourth would have been paid to his heirs, and the income on the remainder of the fund would have been divided between Mrs. Barret and Mrs. Hunter. If that had been done which ought to have been done, the general fund of $7,247.80 left in the executor's hands would have been kept intact. The taxes would have been paid out of it, and this fund would have been swelled with the proceeds of the sales of the Texas lands. The surplus income from this fund, thus augmented, after paying taxes, should have been distributed to all eight of the devisees or their representatives. The trouble in the case is, where so much was left undone that should have been done, how shall the rights of the parties be adjusted to work out justice between them as near as it can be now done?

Rodman sold Texas land to the amount of $2,587, and paid taxes on it to the amount of $1,328. So, considering what Blain paid out on this account and interest, we have not a large balance either way. Rodman paid as income to Mrs. Hunter $2,543.44, and to Mrs. Barret the same amount. As nothing had been paid to Samuel Garvin's heirs on account of principal, and as practically one-fourth of the fund in the hands of the trustee had been paid John S. Kerr's heirs, this income should have been divided between the remaining three, and one-third of it should have been paid to Samuel Garvin's heirs. Since the trust company took charge it has paid to Mrs. Hunter and her heirs $8,536.77, to Mrs. Barret and her heirs $8,560.10, and nothing to any of the other devisees. Of the amount paid Mrs. Hunter's heirs $2,000 was paid on account of principal. and of the amount paid Mrs. Barret's heirs $2,312.52 was paid on account of principal; so that the amount paid Mrs. Hunter and her heirs on acount of income was $6,536.77, and the amount paid Mrs. Barret and her heirs on account of income was $6,247.78. Samuel Garvin was paid his share of income by Blain; but it must be presumed nothing has paid thereon since his death from the facts shown in the record. The trust

company received some money from Rodman and Kennedy, his surety. It sold Texas lands for $19,449, and out of this paid on the Louisville land obtained from Kennedy, in taxes, costs, apportionment warrants, etc., $8,318.63. The income which it received was derived mainly from the proceeds of the Texas lands which it sold. The income which the trust company received should have been divided equally between Mrs. Hunter, Mrs. Barret, and Samuel Garvin's heirs, as they had received no part of the principal of the estate, and the losses of the special fund must in equity be borne by the estate and not by them alone.

The total amount of income paid to Mrs. Hunter, Mrs. Barret, and their heirs by Rodman and the trust company, as we figure it, is $17,871.43, and the third of this sum going to Samuel Garvin's heirs is $5,957.14, which should be paid back to them by Mrs. Hunter's and Mrs. Barret's heirs, without interest, out of any funds hereafter falling to them, before anything more is in fact paid to Mrs. Hunter's or Mrs. Barret's heirs. Out of the $5,092.36 now on hand for distribution, the chancellor will distribute $3,000 to Samuel Garvin's heirs, $1,000 Mrs. Hunter's heirs, and $687.68 to Mrs. Barret's heirs, to bring them up to $3,000. But the amount above adjudged to Mrs. Hunter's or Mrs. Barret's heirs, or that may be coming to them from the estate of Samuel Garvin, will not be paid to them, but will be applied to pay what they owe to that estate on account of income received by them; and as they own one-third interest in Samuel Garin's estate, they should be required to pay out of their own funds only two-thirds of the amount they owe to the estate, and the twothirds so paid by them should be divided between the other four heirs of Samuel Garvin's estate. In future distributions Samuel Garvin, Mrs. Hunter, and Mrs. Barret will be made up to Kerr's estate, $4,080, and after that the surplus will be divided among the four, until they are made equal to the other four ($7,625.19), and after that there will be an equal division in eight parts of the surplus. But Mrs. Hunter's and Mrs. Barret's heirs must in fact be paid nothing until their debt to Samuel Garvin's estate is settled, and, as Mrs. Hunter received more of the income than Mrs. Barret, the chancellor, after the debt to Samuel Garvin's estate is paid, will, if necessary, require Mrs. Hunter's heirs to pay Mrs. Barret's heirs a sum sufficient to equalize them.

3. The note against William Garvin will be charged to Mrs. Weston, without interest after his death; no demand having been made for its payment, properly verified, in one year from that time. It will be deducted from the first money coming to her.

4. The questions raised on the appeal are not concluded by any of the judgment entered in the case. Appellants are not con

cluded by failing to reply to appellee's answer; for it was not made a cross-petition against them, and they were not required to reply to the answer of their codefendants.

The judgment is reversed on the original and cross-appeal, and cause remanded for further proceedings consistent herewith. Each party will pay his own costs in this court. The transcript fee will be paid by the trustee out of the trust estate.

CRAFT v. BARRON.

(Court of Appeals of Kentucky. Oct. 4, 1905.) 1. PLEADING-ALLEGATIONS OF FRAUud-SufFICIENCY-MOTION TO MAKE SPECIFIC.

A general plea of fraud in an answer is good, without specifying the facts constituting the fraud, though it is better pleading to set out the facts, and on a motion to make more specific this should be required, when necessary to enable the plaintiff to prepare his case.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Fraud, § 37; vol. 39, Cent. Dig. Pleading, § 281⁄2.]

2. APPEAL-HARMLESS ERROR.

Where an answer pleaded fraud generally, but a former answer, which had been required to be reformed, had set out the specific facts, and both plaintiff and defendant had taken the depositions of plaintiff's agent, who, it was alleged, had made the fraudulent statements, the overruling of a motion to make the complaint more specific was not reversible error, under the Code provision that a judgment shall not be reversed for an error not affecting the substantial rights of the party complaining. 3. CONTINUANCE-SURPRISE.

Shortly before trial, defendant took the depositions of witness attacking the character of one of plaintiff's witnessess for truth and veracity. After a ruling that the plaintiff would not be compelled to go to trial without time to take proof to meet these depositions, the defendant agreed to withdraw the depositions and the trial proceeded. While it was in progress, plaintiff saw the deponents in the courtroom and moved for a continuance, but filed no affidavit of surprise, and did not show that, if given time, he could sustain the character of his witness, and did not ask a continuance at his cost. Held, that the court properly refused to continue the case.

4. WITNESSES-IMPEACHMENT-REPUTATION.

Evidence that the reputation of a witness for truth and veracity was bad at places where he had resided some time before trial is admissible, in connection with similar testimony as to his reputation at a place where he resided at the time of trial, but for only a short time before.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 1124.]

5. TRIAL-INSTRUCTIONS-INVASION OF PROVINCE OF JURY.

In an action on a contract which defendant claimed he was induced to enter into through fraudulent misrepresentations of plaintiff's agent, instructions that, if the representations were substantially untrue, and by reason of them the defendant was induced to make the contract, relying on the statements and believing them to be true, the jury should find for defendant, while, if the agent only made the statements as matters of opinion, they should find for plaintiff, were not objectionable, on the ground that they took from the jury the power to judge of the materiality of the misrepresentations.