was done by draft drawn on the warehouse company by Riggs. The amount of money so paid on his drafts would be charged to his account, and when the tobacco had been handled by Riggs, it was shipped to the warehouse and sold by it, and the net proceeds of the sale credited to his account. The inducement for the warehouse company to enter into this arrangement was two-fold. First, it received a good rate of interest on the money loaned; and, second, it got the fees for selling the tobacco. Further than this, the evidence fails to show that the warehouse company had any interest whatever in any tobacco purchased by Riggs. The evidence conclusively shows that appellee, Turner, was at no time in 1910 or 1911 interested with Riggs in the purchase of tobacco, and had no connection with him. Thus, the evidence wholly fails to show that the company and Riggs were partners, or jointly interested in the purchase of tobacco, or that Turner had any connection with him in the transaction complained of. Appellant had no conversation or communication with the warehouse company, or any one connected therewith, untill long after the tobacco had been bought and Riggs had refused to receive any pay for it. In the spring of 1911, Turner was asked about it by appellant. He was told that he, Turner, was not buying tobacco, but engaged in selling it. This was the extent of their communication upon the subject, so far as appellant was able to show. There is no evidence showing either directly or inferentially that either the warehouse company or Turner knew that Riggs had been representing himself to be the agent of either, or in any wise connected with him, in the purchase of the tobacco. On this showing the ruling of the trial court was justified and finds abundant support in the decisions of this court, where similar rulings have been passed upon, among which may be cited Fox v. Commercial Press Co., 28 Rep., 44, where, in upholding the ruling of the trial court in sustaining a demurrer to the petition, this court said: "It will be observed that it is simply charged in the petition that Herrman represented to the plaintiff that he (Herrman) had a certain contract with the Louisville Press Co. It is nowhere averred that Herrman in fact had the contract with that company which is set up in the petition. All that is stated in the petition may be true, and Herrman may have had no contract at all with the Louisville Press Co. It is not averred that the plaintiff paid Herrman $300 upon the faith of any representations made to him by the Louisville Press Co., or that plaintiff was in any manner induced by the Louisville Press Co. to make the contract with Herrman and pay him $300. It is simply averred that the plaintiff relied upon the representations made by Herrman and paid Herrman $300 for his rights and thereupon the Louisville Press Co. accepted plaintiff in place of Herrman and recognized and admitted the ownership of plaintiff of such rights as represented by Herrman, and but for this he would have demanded and recovered from Herrman his $300. *No principle of agency, therefore, applies, and the estoppel fails because it is not shown that the press company knew what was the contract between plaintiff and Herrman, or that it should have known that its conduct was misleading the plaintiff in any way. An agent's authority cannot be shown by his own representations." * * The only difference between that case and the case at bar is that in that case there was a failure to state facts which would support a cause of action, whereas, in this case, the facts proven do not support the cause of action stated. Again, in Payton v. The Woolen Mills Co., 28 Rep., 1303, creditors of the firm of Payton, Webb & Co. sought to hold Mrs. Frances L. Payton liable for certain firm debts, because of representations made by her husband in the conduct of the firm's business. She denied liability. The court found that her husband, Frank Payton, had practiced a fraud upon the creditors and, after reciting the various acts constituting the fraud, said: "But if this fact were even clearer than it is, it would afford no ground for charging the fault of it to his wife, unless she, too, participated in it, by purposely suffering it, or authorizing it, to aid in the deceit. We may say, in passing, that there was considerable evidence that appellant was in fact the F. L. Payton who was a member of the firm, and that she herself so recognized and treated the matter. It is not our purpose to discuss this phase of the case, though, further than may be necessary in the treatment of the legal questions which we will dispose of, as we conceive the decision of the facts to be a matter for the jury under the guidance of proper instructions and competent and relevant evidence. * "It is undeniably true that where one acts in a matter by an agent, the latter's action in the matter, if within the real or apparent scope of his agency, is as binding on the principal as if done by the principal himself. But it is always necessary to first establish the fact of the agency, and to show the actual or apparent scope of the agent's authority. This cannot be done by proving what the agent said or represented as to the extent of his authority." Numerous authorities are cited in said opinion in support of this principle. The difficulty with appellant's position in this case is, that there was no evidence establishing Riggs' agency for either Turner or the warehouse company, and, until his agency is established, as stated, he was powerless to bind neither by any representations that he made. There being no evidence in any wise tending to establish an agency on the part of Riggs for either Turner or the warehouse company, except statements alleged to have been made by Riggs, when neither of his alleged principals was present or knew that such statements were being made, the court properly held that appellant had failed to make out his case as to the warehouse company and Turner. Judgment affirmed. Goss, et al. v. Withers, et al. (Decided March 18, 1913.) Appeal from Jefferson Circuit Court Wills-Construction of-Life Estates with Power of Sale.-Where a testator devised real estate to his widow for life, with power to manage, sell and convey, a sale and conveyance of such real estate by the widow, having capacity to contract, invests the purchaser with the title thereto of the testator. JOHN C. STROTHER, EUGENE HUBBARD for appellants. THUM & ROY for appellees. OPINION OF THE COURT BY JUDGE LASSING-Affirming. Elias R. Withers died in 1883, the owner of a farm in Jefferson County, Kentucky. He left surviving him a widow, Mary Jane, and three children, Katie H., who intermarried with one Goss, Clarence J., and Florence G. Florence G. died leaving no children. Katie H. has two children, Pauline and Irma. He left a will and codicil thereto, which were duly probated, as follows: "I, Elias R. Withers, of the county of Jefferson, and State of Kentucky, do make this my will. "I hereby constitute and appoint my wife, Mary Jane, executrix of this will and request the county court not to require security of her; I also appoint her guardian of my children. I authorize and direct my wife to carry on and manage all my estate of every kind and description as she may deem best for herself and my children, and to enable her to do so, I devise same to her during her life. For such management she is not to be liable or responsible to my children, and to enable her to manage it, I give her full and absolute power to rent or sell all or any of my property and convey the same and receive the rents or purchase money, and any and all deeds she may make shall invest the purchaser or purchasers with the full title to the property sold and her receipt shall acquit the purchaser or tenant fully of the money paid. At her death, all of my estate unsold by her or that acquired by the proceeds thereof, I give and devise to my children in fee simple, and in case of the death of any of them leaving children, the latter to take the parent's part. "In witness whereof, I hereunto set my hand this 23rd day of September, 1865. Codicil: "Elias R. Withers." "I make this codicil to the foregoing will, instead as therein provided, of my estate unsold at the death of my wife, or that acquired by the proceeds thereof going to my children in fee simple, I desire the same shall go to my two daughters, Florence G. and Katie H., and their issue or the survivor of my said daughters or their issue to take it if one dies without issue, the survivor and her issue to take. The words 'of my said daughters' interlined before signing. "In witness whereof, I hereto set my hand this 20th day of February, 1866. "Elias R. Withers." In due time, his widow qualified as executrix under said will. Sometime prior to her death, in 1903, she sold and conveyed said farm to her son, Clarence J. Withers. Conceiving that this conveyance was void, the guardian of the infant children of Katie H. Goss sued Clarence and their mother, Katie H. Goss, and sought to have said Clarence J. Withers enjoined from selling or disposing of said land, and also to have the will of their grandfather so construed as to award them the fee to said property, subject to the life estate of their mother therein. It appears in brief of counsel that their mother had sold any interest she might have in this land to their uncle, Clarence, during the life of their grandmother. A demurrer was heard and sustained to the petition. Plaintiffs appeal. It is insisted by Clarence J. Withers that the ruling of the chancellor is necessarily correct, because the appellants took no interest whatever in the property in question under and by virtue of the said will of their grandfather. It seems to us that a disposition of a primary question obviates the necessity of passing upon that point. Under the will, the widow took a life estate, coupled with an absolute and unlimited power of sale. The will gives her this right, and the codicil in no wise modifies or limits it. The language is plain, unambiguous, and not susceptible of but one meaning. "I give her full and absolute power to * * sell all or any of my prop pur erty and convey the same and receive the chase money," left with the executrix the power to determine for herself whether or not she would sell the property, or any part thereof, and when and to whom. The language used in the codicil accentuates this idea, for he disposes of "my estate unsold at the death of my wife." Thus clearly recognizing that he had conferred upon her the power to sell, and he was not in the codicil attempting to revoke or modify the power of sale so given. Again, for the purpose of enabling his wife to dispose of the property whenever she desired, he provides, "any and all deeds she may make shall invest the purchaser or purchasers with the full title to the property sold," and, finally, to give assurance and confidence to would-be purchasers, in dealing with his wife, provides, "and her receipts shall acquit the purchaser * of the money paid." Having been given the absolute |