SOUTHERN RAILWAY IN KENTUCKY v. HANNA.1

(Court of Appeals of Kentucky. Oct. 26, 1899.)

RAILROADS-DESTRUCTION OF PROPERTY BY

FIRE.

Evidence showing that sparks could not have been emitted from a locomotive if the spark arrester had been in proper condition will authorize a verdict for plaintiff in an action to recover damages for the destruction of grass by a fire caused thereby, though the evidence showing that the fire was caused by escaping sparks be circumstantial merely.

Appeal from circuit court, Mercer county. "Not to be officially reported."

Action by Margaret Hanna against the Southern Railway in Kentucky to recover damages for the destruction of property by fire. Judgment for plaintiff, and defendant appeals. Affirmed.

Humphrey & Davie, for appellant. Gaither & Vanarsdall, for appellee.

PAYNTER, J. The appellee sought to and did recover damages for the loss of her property by fire which was alleged to have been caused by the negligence of the appellant in permitting sparks to escape from an engine on its road. The circumstances proven satisfied the jury that the fire originated from sparks which escaped from the appellant's engine. It is generally by circumstantial evidence that such losses can be fixed upon railroad companies. It is only occasionally that any one sees sparks emitted from an engine light upon and set fire to property. It some one was present, and should see the fire start, it would be easy enough for such one to extinguish it, and he would certainly do so, and therefore fires rarely produce injury which start in the presence of any one. Where serious damages result from fires, they likely start when no one is present, and it is therefore necessary to rely upon circumstantial evidence to show the origin of the fire and the negligence causing it.

There

was testimony tending to show that the engine had the latest improved spark arrester, and that it was in proper condition, but

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

53 S.W.-1

there was testimony which tended to show that, if it had been in proper condition, it could not have emitted sparks which would have set fire to the grass. While this testimony tends to rebut the circumstantial evidence of the plaintiff, yet the jury considered that testimony in connection with the other testimony, and concluded that the loss was occasioned by sparks from the engine. Having reached this conclusion, the testimony was abundant to show that, if the spark arrester had been in proper condition, the fire would not have been caused by sparks emitted from the engine. The jury was the judge of the facts, and we are not disposed to disturb its verdict. The court did not err to the prejudice of the appellant in instructing the jury. The judgment is affirmed.

WORTHINGTON et al. v. SMITH et al.1 (Court of Appeals of Kentucky. Oct. 25, 1899.)

SECOND APPEAL-LAW OF THE CASE-SALE OF LAND BY DEVISEES WITHOUT CONSENT OF CO-DEVISEES PERSONAL JUDGMENT AGAINST PURCHASER.

1. Where a judgment settling the estate of a testator was reversed on appeal only as to certain amounts improperly charged against one of the devisees, the original basis of settlement with that exception was established as the law of the case, and could not be changed on the return of the case.

2. A testator distributed his estate to his children as it would have gone had he died intestate, except that he named certain sums which were to be charged against the several children as advancements. All the devisees except C. united in a sale to W. of certain land belonging to the estate, the proceeds of which were paid to J., one of the devisees, as an advance on his portion of the estate. Held, that it was error to render personal judgment against W. for the amount found to be due C. on a final settlement of the estate, as the judgment should have been for a lien against the property in W.'s hands, with the right to discharge the same by payment of the amount due C.

Appeal from circuit court, Kenton county. "Not to be officially reported."

Action by James B. Casey, executor of John B. Casey, against Caroline S. Smith and

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

others, for a settlement of the estate of plaintiff's testator. Judgment settling estate, and Henry Worthington and others appeal, and Caroline S. Smith and others prosecute a cross appeal. Reversed on original and affirmed on cross appeal.

Harvey Myers and Ed C. O'Rear, for appellants. W. H. MacKoy, for appellees.

DU RELLE, J. In June, 1876, John B. Casey died, leaving a will, by which he appointed his son James B. Casey executor, and distributed his estate to his children as it would have gone had he died intestate, except that he named certain sums which were to be charged against the share of each of his children as advancements, and provided that the share of his son George M. should go to George's children, the appellees Caroline Smith and Edward D. Casey; and that the executor, who was, for the purpose, made trustee, should, out of the interest of Caroline and Edward, retain a sufficient portion to yield the sum of $200 per annum, to be paid to their father for his support during his life, the amount so retained to be divided between them at his death. Shortly after the probate of the will, the two children of George and Frank E. Smith, the husband of Caroline, executed an agreement, which was recorded, that the executor should "retain in his hands and under his control enough of their portion of said estate to produce four hundred dollars per annum net, instead of two hundred dollars, as provided for on the will, to continue during the life of said George." About the same date all the devisees joined in a power of attorney to James B. Casey to sign their names to notes in renewal of other notes owing by the testator; to raise money, by loan or otherwise, for the use of the estate, as he should deem best; to settle the estate; to save the indorsers and sureties on the notes he might execute harmless therefrom; and to charge the expense, interest, and discount to the estate. Subsequently, by an instrument to which Caroline and her husband were not parties, it was agreed that James B. Casey should take as an advance on his portion of the estate, to be charged to him upon final settlement, two lots of land at an agreed valuation of $12,000. A deed of those two lots was made to Henry Worthington for the recited consideration of $12,000, between $5,000 and $6,000 of which appears to have been paid by the extinguishment of an indebtedness to Worthington by a firm of which James B. was a member, and the remainder of which consideration was put into the firm by James B. This deed was executed personally by all the devisees excepting Caroline and her husband, and their names were signed, and the instrument acknowledged, by James B., as their attorney in fact, though, as held by this court upon a former appeal, he had no authority so to act. George M. Casey was not made a party to

this conveyance at all. In a suit brought by the executor to settle the estate, Caroline and her husband and George M. Casey filed their answers and cross petitions making Worthingtou a party defendant, and setting up their claims under the will, and on behalf of George the additional interest claimed by him under the agreement; denied any authority on the part of James B. to bind them by the sale of the real property; alleged that at the date of the deed James B., Louis E., and Richard Casey had already received more than their distributive shares of the estate by reason of advancements made by the testator, and charged in his will, and of their indebtedness to the estate growing out of transactions with the executor, and before the date of the deed to Worthington; claimed that the property deeded to Worthington would be required, in addition to the other property of the testator not necessary to pay debts, to equalize them with their co-devisees; and prayed for a cancellation of the deed. Upon the first appeal to this court it was held that the conveyance to Worthington passed no title, except as to those heirs consenting to or authorizing the sale; that, after the payment of the debts, those of the devisees who consented to the sale should be held barred by it, and, if there was a sufficient estate left to give Mrs. Smith her interest under the will, outside of the property conveyed to Worthington, he should not be disturbed in his possession, but, if there was not sufficient, that property should be subjected, so far as necessary, to the payment of Mrs. Smith's claim. And upon a second appeal it was said that "the property purchased by Worthington, or its proceeds, must be subjected to the payment of what she (Caroline) is entitled to, as indicated and adjudged in the former opinion." Upon the return of the case after the second appeal a new settlement was had before the master, and the amount of the estate of the testator to be distributed, and consequently the amount to go to each of the devisees, was ascertained upon a different basis from that upon which it had been ascertained prior to the second appeal, and which basis and mode of ascertainment had not been disturbed by that appeal, except with regard to certain claims there disallowed against the estate, and one-eighth of which had been charged against Caroline. Whether the original basis was correct or not, it was not disturbed by this court upon the second appeal, and is thereby established as the law of this case, except as to the amounts which were charged against Caroline therein.

It appears that the testator was surety upon a number of notes, aggregating, with interest, in 1895, some $40,000, and these were excluded from the computation, in ascertaining the amount of John B. Casey's estate for distribution, as being worthless claims. Being claims for the payment of which the es tate was bound, they were properly included