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other person, sane or insane (except assaults that it was fired on the porch or near the committed for purpose of burglary or rob- front of the house. No one was seen or bery), the company shall pay but one-tenth heard running therefrom. His pocketbook of the amount otherwise payable for bodily and watch were upon his person, and no othinjuries covered hereby, anything to the con- er fact was established in the evidence tendtrary in this policy notwithstanding." ing to show an assault for robbery or burAs to the Travelers' Insurance Company glary. He did not explain how he came to the court instructed the jury as follows: be shot except to say that a man shot him. "(a) If the jury believe from the evidence If he was shot by another accidentally, the that the wound which caused the death of full amount of the policy may be recovered, Frederick Rustin was inflicted accidentally, but, if he was shot by another intentionally, either by himself or by another, or that it the full amount of the policy cannot be rewas inflicted intentionally by another, with- covered, unless the shooting was done in an out the consent or procurement of Frederick assault committed for the purpose of burRustin, in an assault committed by such glary or robbery. other person, if any, for the purpose of burglary or robbery, then the law is for the plaintiff as against the Travelers' Insurance Company, and the jury should award the plaintiff the sum of $5,870, with interest at the rate of 6 per cent. per annum from January 10, 1909.

"(b) If the jury believe from the evidence that the wound which caused his death was inflicted intentionally by another, without the consent or procurement of Frederick Rustin, and not in an assault committed by such other person, if any, for the purpose of burglary or robbery, then the law is for the plaintiff as against the defendant, the Travelers' Insurance Company, and the jury should award the plaintiff the sum of $587, with interest thereon at the rate of 6 per cent. per annum from January 10, 1909.

"(c) But if the jury believe from the evidence that Frederick Rustin committed suicide, sane or insane, or that the wound which caused his death was inflicted intentionally by another with the consent or procurement of Frederick Rustin, then the law is for the defendant, the Travelers' Insurance Company, and the jury should so find.

"(d) 'Burglary,' as used in these instructions, means the breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. 'Robbery' means the taking with intent to steal of personal property, in possession of another, from his person, or in his presence, by violence or by putting him in fear."

[5] The jury found for the plaintiff the full amount of the insurance, and the company insists it can be held liable in any event under the evidence for only 10 per cent. of the amount of the policy.

We have held in a number of cases that if on one state of case the plaintiff may recover, and on another he cannot recover, and the evidence for the plaintiff tends no more strongly to prove the first state of case than the second, no recovery can be had. It is insisted for the Travelers' Insurance Company that this rule should be applied here, as the evidence fails to show how the shooting occurred. But the argument misapplies the rule. The rule has been applied only in those cases where the plaintiff had to show a certain state of facts in order to recover, and the evidence offered by the plaintiff to show these facts tended no more strongly to establish them than it did to establish another state of facts under which the defendant would not be liable. The plaintiff here made out a prima facie case when she showed that her husband had been shot, for the presumption against suicide was strengthened by the proof that no pistol was found about him or about the premises, and the nature of his wound was such that he must have been shot practically where he was when found. In addition to this, he said when found that a man had shot him. As the plaintiff had thus made out her case, it then devolved on the defendant to show that the clause limiting its liability applied. It will be observed that in the general clause of the policy containing the defendant's promise to pay there is no qualification or exception and no reference to the subsequent part of the policy containing the limitations upon its liability.

[6] In Stephens on Pleading, side page 443, the learned author, after showing that an exception contained in the general clause must be negatived, adds: "Hence, if a statute or a private instrument contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause

The evidence as to how Dr. Rustin came to his death is by no means satisfactory. Between 2 and 3 o'clock in the morning a pistol shot was heard. His wife, who was upstairs, went down to the front door, and something which would otherwise be included there found her husband shot in the abdomen. in it, a party relying on the general clause No one heard any altercation in the street in pleading may set out that clause only, or on the front porch where he was found. without noticing the separate and distinct No pistol was found on him or about him. clause which operates as an exception." UnWhere he had been for two or three hours der this rule, it was unnecessary for the before this is not shown by the evidence, plaintiff to allege facts showing that the limand no one knows how he came to his resi-iting clause did not apply, and, it not being

was not necessary that she should in the first place prove them. The burden was on the defendant both to allege and prove them, and it was a question for the jury on all the evidence in what manner the deceased came to his death. The case therefore for the Travelers' Insurance Company is practically the same as for the other defendants.

[7] 6. The ground chiefly relied on for reversal as to all the appellants is that the verdict is palpably against the evidence. We have gone over the record with great care, and have made an abstract of the testimony which we have placed with it. Our conclusion is on this branch of the case that we ought not to disturb the finding of the jury. It would serve no good end to extend this opinion by setting out the evidence in detail. There is much in the proof offered by defendants to sustain their view. But, after all, the case turned largely on the credibility of the witnesses, and, in view of all the facts and circumstances, we cannot say that the verdict of the jury is palpably against the evidence.

The constitutional guaranty of trial by jury would be of little value if new trials were granted by the court in all cases where on all the evidence it seemed as probable to the court that a state of case existed under which the defendant was not liable, as that a state of case existed under which the defendant was liable. As the law has established this means of trial, the verdict of the jury must stand, unless we can say that it is palpably against the evidence. It is not sufficient that we would have reached a different conclusion. There is much evidence on behalf of the defendants tending to show that Dr. Rustin either shot himself or procured another to shoot him, and not a few circumstances tending to support this conclusion. But a great part of this evidence comes from a woman of confessedly bad character, and from a man confessedly mentally unbalanced. While their testimony is in some respects confirmed by other evidence, we all know how the effect of a fact may be changed by a slight coloring of its setting. The jury had a right in their discretion to give little weight to the testimony of these witnesses, and, if we leave out of view their testimony, the keystone of the arch of appellants' defense is taken away. Judgment affirmed.

leaving bodily heirs, the portion devised to the
decedent should vest in the survivor; and that
if both should die, without bodily heirs, before
nated persons. Held that, after the final dis-
distribution, the property should go to desig-
tribution of the estate, the reversionary in-
terest granted was defeated, and must be con-
to have passed by inheritance to her children,
sidered to have remained in the testatrix, and

so that a survivor would hold a fee defeasible
by his having children at the time of his death.
[Ed. Note.-For other cases, see Wills, Cent.
Dig. §§ 1351-1359; Dec. Dig. § 602.*]
2. TRUSTS (§ 193%*)-CREATION BY WILL-
SALE AND REINVESTMENT OF PROPERTY.
Where property devised in trust for the
children of testatrix produced very little in-
come, the court properly permitted its sale and
the reinvestment of the sum secured in other
property, title thereto to be taken in a trustee,
would be advantageous.
as required by the will, where the reinvestment

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 246, 248; Dec. Dig. § 1932.*]

Appeal from Circuit Court, Hart County. Owen and others. Action by Lee O. Burks against Jordon From a judgment for plaintiff, defendants appeal. Affirmed. Watkins & Carden, of Munfordville, for appellants. McCandless & Larimore, of Munfordville, for appellee.

TURNER, J. [1] Mrs. Cleopatra Chapline died in Hart county in 1895, having first made her will; and the construction of that will is the only thing involved in this appeal. The third, fifth, and sixth clauses thereof are as follows, to wit:

"3. I give and bequeath to my brother Jordon Owen the sum of one thousand dollars, in trust for the use and benefit of my son Lee O. Burks to be held by said trustee and by him invested in real estate as soon as same can be properly done and advantageously done, and said land to be by him held as aforesaid in trust for the use and benefit of said Lee O. Burks, during his life and at his death to descend to his children should he leave any surviving him.

"5. It is my will and desire that after my death my executor shall sell all my personal estate and also the tract of land upon which I now live known as the home place, and that he shall sell same either publicly or privately as he may deem best and in order to enable him to carry out this provision, he is hereby vested with full power and authority to sell and convey said land by deed or deeds of conveyance with covenant of general warranty in as full and ample a manner as I myself might or could do if present and acting in the premises, and it is my desire that the proceeds of the sales of said property and remainder of my estate from all sources whatsoever shall be divided between my two sons Lee O. Burks and C. H. A will devising property in trust for the Burks in such manner as to give to my said sons of the testatrix during life, with a fur- son C. H. Burks ($900.00) nine hundred dollars ther provision that if either of them should die before the final distribution of the estate, more thereof than to my son Lee O. Burks for directed to be made by the trustee, without the reason that my said son C. H. Burks has For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

OWEN et al. v. BURKS. (Court of Appeals of Kentucky. Dec. 11, 1912.) 1. WILLS (§ 602*)-ESTATES GRANTED-DE

FEASIBLE FEE.

been denied the educational advantages enjoy- | testatrix, in the property. The contingency ed by his brother Lee O. and has also given in which the appellants were to take the much of his time and attention to caring for property, to wit, the death of both Lee O. me in the long illness through which I have and C. H. Burks before the final distribution passed, and it is my will and desire that the of the estate, without leaving bodily heirs, portion of my said estate herein devised to did not occur, and cannot now occur, for the my said son Lee O. Burks shall be invested estate has been finally settled; and, the tesby the trustee aforesaid in real estate to be tatrix having made no further provision for held by him in trust for my said son during the reversionary interest, except in that conhis life and to descend to his children should tingency, that réversion was left in her, and any be left by him at his death, but the trus- as to it she died intestate, and at her death tee Jordon Owen is not to be charged nor C. H. and Lee O. Burks inherited the same. become liable to pay any interest on either Therefore Lee O. Burks, having taken a life of the funds herein set apart for the use of estate under the will and inherited the reverthe said Lee O. Burks or the said C. H. sion from his mother in the property sought Burks during the existence of said trusts. to be sold, took a defeasible fee therein, subject to be defeated only by having a child or children living at the time of his death. Alexander v. De Kermel, 81 Ky. 351; Pryor v. Castleman, 7 S. W. 892, 9 Ky. Law Rep. 967; Coots v. Yewell, 95 Ky. 368, 25 S. W. 597, 26 S. W. 179, 16 Ky. Law Rep. 2.

"6. It is further my will and desire that in the event that either of my said sons Lee O. or C. H. Burks shall die before the final distribution of my estate hereunder without leaving bodily heirs, then the portion of such decedent herein devised shall vest in the survivor, and if both of my said sons shall so die without leaving bodily heirs then I desire that one half of the property herein devised to them shall descend to my brother Jordon Owen and the other half thereof to be equally divided between my nieces Lizzie and Pearl Smith, Lizzie Owen daughter of my brother David R. Owen and my nephew Charles Smith."

She appointed her brother Jordon Owen executor, and he, as such, in March, 1898, made a final settlement of his accounts. Thereafter, in 1900 or 1901, her son C. H. Burks died, never having been married, and leaving no child. This suit was instituted by the appellee, Lee O. Burks, alleging that the appellants Jordon Owen and others, under the sixth clause of the will aforesaid, were claiming an interest in a tract of land which had been conveyed in trust to Jordon Owen, as his trustee, under his mother's will, and asserting in himself a fee-simple title therein, and praying the court to quiet his title as against their claims and to adjudge him the owner thereof in fee simple, and praying in the alternative that if the court was of opinion that his title to said property might be defeated, in the event he had a child surviving him, that the property be sold and reinvested in property in Louisville, where he lived, and setting up certain reasons why the reinvestment should be made.

[2] It appears that the appellee received very little income from the farm in Hart county, and that its proceeds could probably be advantageously reinvested in the city of Louisville, where he lived; and the lower court properly ordered the sale of the farm and a reinvestment of the proceeds, the title to be taken to some trustee and held under the provisions of Mrs. Chapline's will. Judgment affirmed.

HOWARD V. CORNETT et al. (Court of Appeals of Kentucky. Dec. 10, 1912.)

DEEDS (8 114*)-PROPERTY CONVEYED-CON

FLICTING DESCRIPTIONS.

The language of the whole deed, as well as the surrounding facts and circumstances, being required to be considered in ascertaining by it of the tract excluded 20 acres of the the intention, a deed, though boundaries given farm, within which was a graveyard, having concluded said "boundary being known as the N. farm, except one-fourth acre, it being a graveyard with the right of way to go to and from same," and the grantee having for years afterwards had undisputed possession, will be held to include the 20 acres; the exception of the quarter acre being otherwise senseless.

[Ed. Note.-For other cases, see Deeds, Cent.

Dig. §§ 316-322, 326-329; Dec. Dig. § 114.*]

Appeal from Circuit Court, Harlan County. Two actions, consolidated, one by A. B. Cornett and another, the other by W. S. Blanton, both against N. H. Howard. From judgments for plaintiffs, defendant appeals. Reversed, with directions to dismiss.

W. F. Hall, of Harlan, for appellant. J. G. & J. S. Forester and Chas. G. Mutzenberg, all of Harlan, for appellees.

To this petition the appellants Jordon Owen and others filed their answers, setting up their claim to a reversionary interest in the property under the above provisions of the will, in the event that Lee O. Burks should die without a child surviving him. On a demurrer to these pleadings the lower court held that the appellee had a defeasible NUNN, J. Thirty or forty years ago Robfee in the property, subject to be defeated ert Napier owned about 400 acres of land only by his death with a child or children on what is known as "Bob's Creek" in Harsurviving him; and that the appellants had lan county, Ky. It laid in one irregular no interest whatever, under the will of the body and was covered by several patents;

three in his name, two in the name of Wil- he executed a mortgage upon it to A. B. Corliam Farmer, one in the name of James nett and J. F. Skidmore to secure the payFarmer, and one in the name of Jonathan ment of $600. He says he received from CorKelly. This 400-acre survey also conflicted nett and Skidmore as much as $20 in cash; with a 1,000-acre patent in the name of that they paid some fines for him and, to Lewis Farmer and another 1,000-acre patent use his language, "a part of the considerissued to John Ledford and Robert Napier. ation for this mortgage debt was that they These two 1,000-acre patents also conflicted were to take the property and keep thieves with each other, and this court settled the and rogues from stealing it." rights of the owners of these two patents This action was instituted by Cornett and in the case of Hall v. Blanton, 77 S. W. 1110, Skidmore to enforce their mortgage lien, and 25 Ky. Law Rep. 1400. Robert Napier in- Howard answered claiming the land. There closed and cultivated a considerable portion is consolidated with this action, one brought of his 400-acre patent, and it was about 20 by Blanton against N. H. Howard and one acres of this inclosed and cultivated land Asher in which he sued them for damages that the lower court gave Blanton in the for trespass upon the land and cutting timjudgment appealed from. This inclosed land ber and for opening roads through the land in was near the dwelling house of Napier and dispute. The actions were tried together, and contained an orchard and graveyard. Ap- the lower court enjoined appellant and Asher pellee W. S. Blanton married a daughter of from trespassing upon the land and adjudged Robert Napier, and, after the death of Na- Blanton to be the owner of the small piece pier, he purchased all the interests of the of land referred to and enforced appellees' other children in the land referred to, re- lien. Much testimony is introduced showing sided upon and cultivated the land for many that the land in dispute, or nearly all of it, years, and sold it April 30, 1901, to W. S. was included in the patent boundary of LewHensley for $4,000, moved away, and gave is Farmer for 1,000 acres and also in his Hensley possession of the whole farm. The patent for 400 acres, and there was also deed to Hensley attempted to give the boun- much evidence introduced showing the condary of the land; but it appears from the trary. However, from the view we take of plat of the survey on file in the record and the case, after a careful examination of the the evidence that the calls in the deed did record, it is unnecessary to pass upon this not fit the actual boundary of the land in question. We are of the opinion that Blanseveral particulars. Evidently, Blanton had ton intended to sell and that Hensley thought lived upon the farm for such a long time he he bought the whole of the R. Napier farm. thought he could and attempted to give the It is not reasonable to suppose that Hensley exact location of the whole outside boundary thought, when he accepted the deed from of the farm from memory and failed in sev- Blanton, that he was not to get the orchard eral particulars. The deed, after attempting and this 15 or 20 acres of cleared land near to give the outside boundaries as stated, con- his house which had been used and cultivatcluded with these words: "Same boundary ed by Napier in his lifetime and by Blanton being known as the R. Napier farm, except up to the time he made the deed to Hensley. one-fourth acre, it being a graveyard with There is also a statement in the deed which the right of way to go to and from same." is inconsistent with the idea that Blanton reIt is certain that Blanton sold, attempted to tained the property in controversy; that is, and did convey the R. Napier farm, and the the words above copied whereby Blanton re20 acres of improved land recovered by Blan- served the graveyard and a right of way to ton in the judgment below was a part of the and from it. Blanton could not and did not R. Napier farm. Hensley sold and conveyed attempt to explain why he made this reserthis farm to Charles Hall, who sold it to vation if he did not sell the land immediateN. H. Howard, appellant herein. In both ly surrounding the graveyard, which is the of the deeds last mentioned, the 20 acres land in dispute. The provision is absolutely was included. The error made in the deed senseless if he reserved that part of the R. from Blanton to Hensley was not made in Napier farm which he now claims he did rethese deeds. Since 1901, the date of the serve, for it included the graveyard. We are deed from Blanton to Hensley, the R. Na- not unaware of the rule that a particular depier farm, including the land in contest, has scription in a deed usually governs the genbeen in the possession of and cultivated by eral description. But there is another rule the purchasers; and Blanton has exercised which prevails in this case, which is as folno control whatever over it, except several lows: To ascertain the intention of a venyears after he sold it and, after appellant dor, the language of the whole deed must be Howard had purchased it, he gave Howard considered as well as the surrounding facts notice not to trespass upon this disputed and circumstances. So when, in accordance piece. It is evident to our minds that some with this rule, we take the plat of the surtime after Blanton conveyed the land he vey of the Napier farm which is on file and discovered that the calls in the deed made compare it with the calls in the deed which by him to Hensley did not include the land attempted to give the outside boundary of in dispute, and from that time he began, the land and discover the discrepancies in

with the fact that Blanton stated in his deeding the final determination of this suit. The that he was selling Hensley what was known defendant Asbury pleaded that the check was as the "R. Napier farm," and with the fact that if he did not sell the land in dispute the reservation of the graveyard and right of way to and from it was meaningless, we are convinced that Blanton sold the whole farm to Hensley, and that by oversight the land in dispute was not included in the specific calls in the deed which attempted to give the outside boundary.

For these reasons, each of the judgments in the consolidated action against Howard is reversed and remanded, with directions to the lower court to dismiss the petition in each case.

ASBURY v. TAUBE et al. (Court of Appeals of Kentucky. Dec. 10, 1912.)

1. BILLS AND NOTES (§ 348*)-TRANSFERHOLDER BEFORE MATURITY. Where a check, regular on its face and payable on demand, is transferred within two days after it is drawn, the transferee acquires title before it is overdue.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 870-8772; Dec. Dig. 8 348.*]

2. BILLS AND NOTES (§ 497*)-ACTION-BUR

DEN OF PROOF-HOLDER IN DUE COURSE.

Under the express provisions of Ky. St. § 3720b, subsec. 56, defining notice, subsection 55, declaring that fraud in obtaining a negotiable instrument constitutes defective title, and subsection 59, providing that a holder is presumed to hold in due course, the transferee of a check, obtained from the maker by fraud, has the burden of showing that he acquired

title as a holder in due course.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1675-1687; Dec. Dig. 497.*]

3. BILLS AND NOTES (8 525*)-ACTION-SUFFICIENCY OF EVIDENCE-HOLDER IN DUE COURSE.

Evidence, in an action by the purchaser of a check for cash, held to show that plaintiff was a bona fide holder in due course.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. 88 1832-1839; Dec. Dig. 8 525.*]

Appeal from Circuit Court, Boone County. Action by George Taube against J. S. Asbury and others. Judgment for plaintiff against defendant Asbury, and he appeals.

Affirmed.

D. E. Castleman, of Covington, for appellant. S. W. Tolin, of Burlington, and John S. Gaunt, of Louisville, for appellee.

CLAY, C. Plaintiff, George Taube, brought this action against J. S. Asbury, the Farmers' Bank of Petersburg, Ky., and S. Straus to recover on a check for $200 drawn by Asbury on the Farmers' Bank and made payable to S. Straus. Straus was not before the court. The Farmers' Bank paid the amount of the check into court, where it is now held pend

obtained from him by fraud, and that plaintiff, Taube, not only had knowledge thereof, but that he and defendant S. Straus were partners in the transaction, and that they had entered into a conspiracy to cheat and defraud defendant. The case as to defendant Asbury went to trial. At the conclusion of all the evidence, the court directed a verdict in favor of the plaintiff. To review the propriety of this ruling, the defendant appeals.

The check was executed and delivered under the following circumstances: Asbury, who lives in Boone county, Ky., went to Cincinnati on February 11, 1911, to purchase two horses. There he met his codefendant, S. Straus, and purchased the horses from him. Thereupon he gave to S. Straus the check in question to pay for the horses, and Straus agreed to deliver the horses on the following Monday on the Kentucky side of Anderson Ferry at Constance, in Boone county, Ky. Asbury went to Constance on Monday and waited for the horses. The horses were not delivered then, or at any time thereafter. While Asbury was waiting for the horses, Straus went to Petersburg, in Boone county, Ky., and presented the check to the Farmers' Bank for payment. Payment was refused because of Straus' failure to be identified. Straus then asked the cashier of the bank to certify the check. This was done. Returning to Cincinnati, Straus assigned and delivered the check to plaintiff, Taube. After Straus failed to deliver the horses on Monday, Asbury went to his place of business to find out what was the matter. Straus made some kind of explanation to the effect that one of the horses had become sick and could not be delivered. Asbury then demanded a return of the check. Straus refused, and replied that it had been put in the bank. Asbury returned home and directed the bank not to honor the check. When the check was presented by one of the bank's correspondents, payment was refused. The check was then duly protested, and this suit followed.

[1] The check in question being regular on its face and payable on demand, and being negotiated within two days after it was drawn, plaintiff acquired title before it was overdue. The only question to be determined is: Did plaintiff take the check in good faith and for value, and without notice of any infirmity in the instrument or defect in the title of his codefendant, Straus.

[2] To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.

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