two credible witnesses, who shall subscribe the will with their names in the presence of the testator, a will wholly in the handwriting of the testatrix was valid, while a will written by some one else and attested by only one witness was not valid.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 280-283, 341; Dec. Dig. 115, 132.] Appeal from Circuit Court, Bullitt County. Proceeding between Wylie B. Rutledge and another and E. Z. Wiggington and others for the probate of a will. From a judgment admitting one of two wills to probate, Wylie B. Rutledge and another appeal. Affirmed. T. C. Carroll, of Shepherdsville, for appellants. J. R. Zimmerman, of Shepherdsville, for appellees.

CLAY, C. Georgia A. Wiggington, a resident of Bullitt county, Ky., died on 'December 27, 1911. There survived her two sons, E. Z. Wiggington, J. L. Wiggington, one daughter, Cora Oliver, and two grandchildren, Wylie B. Rutledge and Marguerite Rutledge, children of Mary Rutledge, formerly Mary Wiggington, deceased.

On

On January 21, 1909, Georgia A. Wiggington, while temporarily residing in the state of Tennessee, wrote a holographic will. November 26, 1911, she had prepared another will, which she signed in the presence of one witness only. The two wills in question were offered for probate in the Bullitt county court, but both were rejected. On appeal to the Bullitt circuit court, the will of Janu

son, 13 App. Cas. 60; Frazier v. Boggs, 37 Fla. 307, 20 South. 245; Crolly v. Clark, 20 Fla. 849; Knight v. Wheedon, supra; Dibble v. Winter, supra; Amrine v. Hamer, 240 Ill. 572, 88 N. E. 1036; Evansville Ice, etc., Co. v. Winsor, supra; Lucas v. Tucker, 17 Ind. 41; Calloway v. Doe, 1 Blackf. 372; Lynch v. Miller, 54 Iowa, 516, 6 N. W. 740; Williams v. Jones, 14 Bush, 418). Here the domicile of the testatrix and the real estate are located in this state.

[2] Under our statute a will, to be valid, must be wholly in the handwriting of the testator, or it must be subscribed or acknowledged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in his presence. Ken

tucky Statutes 1909, § 4828. The will of January 21, 1909, is wholly in the handwriting of the testatrix, and is therefore valid under the statute. The will of November

26, 1911, written by some one else, is attested by only one witness, and is not valid.

It follows that the trial court did not err in adjudging the former will to be the last will

and testament of the testatrix and in order

ing same to probate.
Judgment affirmed.

TUSSEY et al. v. HALE et al. (Court of Appeals of Kentucky. Oct. 26, 1915.)

EJECTMENT 86-BURDEN OF PROOF-TITLE. ary 21, 1909, was adjudged to be the last who claimed under a patent to a boundary of The plaintiffs, in an action of ejectment, will and testament of the testatrix and or- land containing 1,500 acres, which recited, dered to be probated. The infant defend-"There being 1,000 acres of a prior claim in ants, Wylie B. Rutledge and Marguerite Rutledge, appeal.

this survey," could not recover without showing that defendants were occupying land within the exterior lines of the patent, and without the exclusion; there being no merit in the contention that the words quoted did not amount to an exclusion.

[Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 238-245; Dec. Dig. 86.1

Appeal from Circuit Court, Floyd County. Action by William Tussey and others against George Hale and others. From a judgment on a directed verdict for defend

While there is some evidence that the testatrix was a resident of Tennessee, the weight of the evidence is to the effect that, while she would occasionally make visits to her grandchildren, who were residents of Tennessee, she maintained her permanent residence or domicile in Bullitt county. On this issue of fact we see no reason to disturb the finding of the circuit court. [1] The validity of a will, as to personalants, plaintiffs appeal. Affirmed. property, is determined by the law of the testator's domicile at the time of his death (Varner v. Bevil, 17 Ala. 286; Murdoch v. Murdoch, 81 Conn. 681, 72 Atl. 290, 129 Am. St. Rep. 231; Knight v. Wheedon, 104 Ga. 309, 30 S. E. 794; Dibble v. Winter, 247 Ill. 243, 93 N. E. 145; Davis v. Upson, 209 Ill. 206, 70 N. E. 602; Yore v. Cook, 67 Ill. App. 586; Evansville Ice, etc., Co. v. Winsor, 148 Ind. 682, 48 N. E. 592; Patterson v. Ransom, 55 Ind. 402; Hussey v. Sargent, 116 Ky. 53, 75 S. W. 211, 25 Ky. Law Rep. 315), and, as to real property, by the law of the jurisdiction wherein it is situated (Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Doe v. Pickett, 51 Ala. 584; Varner v. Bevil, supra; Murdoch v. Murdoch, supra; Readman v. Fergu

C. B. Wheeler, of Ashland, for appellants. Smith & Combs, of Hindman, and James Goble, of Prestonsburg, for appellees.

The

NUNN, J. In March, 1843, a patent was issued to one Jonathan Tussey, granting to him a certain boundary of land in Floyd county, said to contain 1,500 acres. boundary was set forth in detail, but recited, "There being 1,000 acres of a prior claim in this survey." The appellants are the children and heirs at law of Jonathan Craig Tussey. They testify that he went by the name of Craig Tussey, but signed his name Jonathan Tussey. They sued in ejectment to recover the land in question, claiming that their father was the patentee, and that he

died intestate as the owner of same, and that, cinnati, New Orleans & Texas Pacific Railit descended to them, and that they are now way Company, was struck and killed by the the owners of it. After hearing the evidence in their behalf the court peremptorily instructed the jury to find for the defendants, and the plaintiffs appeal. The ruling of the court is justified by the record.

SWANN'S ADM'X v. CINCINNATI, N. O. & yards of the railway company at Williams

We have been unable to find any substan-, purpose of raising the money to pay for tial change in the evidence in this or in any the stock, A. G. Elsey executed his note to other respect; and such being the fact, under the opinion of the court on the former appeal, the trial court was right in directing the verdict for the defendant. Judgment affirmed.

ELSEY V. PEOPLE'S BANK OF BARD

WELL.

(Court of Appeals of Kentucky. Oct. 26, 1915.) 1. PRINCIPAL AND SURETY 115-DISCHARGE OF SURETY-SURRENDER OF COLLATERAL SE

CURITY.

A surety on a note was discharged, where the holder without the surety's consent surrendered to the maker collateral held by it as security for such note, regardless of the value of the collateral.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 244-268; Dec. Dig. 115.]

2. PRINCIPAL AND SURETY

115-DISCHARGE OF SURETY-SURRENDER OF COLLATERAL SE

CURITY.

Defendant was a surety on the note of his brother, held by a bank of which another brother was director and president. Defendant was also a director in the bank, and for a time clerk of the directors' meetings, and the maker of the note was also for a time a director. The

the People's Bank for $750, and attached the certificate for the five shares to his note as collateral security therefor, and had his brother, the appellant, J. L. Elsey, sign the note as surety. J. L. Elsey refused to sign the note unless his brother would pledge the five shares to the bank as collateral security on the note, and that was done. The loan was made by Bodkin, the president of the bank. The note was renewed several times by the same parties, and reduced from time to time until the final renewal on July 11, 1907, when the note amounted to $540. It was again renewed in the same way, for 12 months, and the five shares of bank stock, which had been attached to the previous renewals, were again attached to this last renewal, as collateral security.

Some time during the year 1909 A. G. Elsey, without the knowledge of J. L. Elsey, persuaded Young, the cashier of the People's Bank, to surrender to A. G. Elsey the stock certificate, thus leaving the note with no security except J. L. Elsey, and depriving him of the protection of the bank stock as collateral. A. G. Elsey pledged the stock certificate to a bank at Cairo, Ill., as collateral for $750, which he borrowed from that bank. When A. G. Elsey's note to the Cairo bank matured, he sold the bank stock to another brother, A. F. Elsey, and applied the proceeds to the payment of his note for $750 due the Cairo bank. During this time the People's Bank was indebted to the Alexander County National Bank of Cairo, and had pledged the note of A. G. Elsey and J. L. Elsey for $540, above mentioned, as col252-INSTRUCTIONS-CONFORMITY lateral security for its indebtedness to the Alexander County National Bank.

cashier of the bank, without defendant's consent, surrendered to the maker of the note certain collateral held by the bank as security for the note. Held, that the relationship of defendant or his brothers to the bank could not revive his liability, after he had been once released by the surrender of the collateral, even though by the exercise of ordinary care he could have ascertained that the collateral had been surrendered.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 244-268; Dec. Dig. & 115.]

3. TRIAL

TO EVIDENCE. Instructions which there was no proof to sustain should not have been given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. 252.] 4. PRINCIPAL AND SURETY 115-DISCHARGE OF SURETY-SURRENDER OF COLLATERAL SE

CURITY.

That under the express provisions of Ky. St. § 581, a bank had no authority to take its own stock as collateral security for a loan did not prevent its surrender of such collateral security to the maker of a note held by it from discharging the surety on the note.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 244-268; Dec. Dig. 115.]

Appeal from Circuit Court, Carlisle County. Action by the People's Bank of Bardwell against J. L. Elsey and another. From a judgment for plaintiff, the defendant named appeals. Reversed.

John E. Kane, of Bardwell, for appellant. T. M. Collins, of Bardwell, and Robbins & Robbins, of Mayfield, for appellee.

MILLER, C. J. In 1906 A. G. Elsey bought five shares of the capital stock of the People's Bank of Bardwell for $725. For the

When the note was returned by the latter bank to the People's Bank, and J. L. Elsey was called upon to renew it, he found that the stock certificate had been surrendered by the People's Bank three years or more before, and he refused to renew the note for that reason. As a consequence of that refusal, this suit on the note was filed on November 8, 1913, by the People's Bank against A. G. Elsey and J. L. Elsey. Six months later, on May 11, 1914, the People's Bank was declared insolvent, and was placed in the hands of the state banking commissioner, who proceeded to liquidate its affairs. By order of court he was made a party plaintiff in this action.

A. G. Elsey did not answer; but, by his separate answer, J. L. Elsey alleged his suretyship upon the note sued on, that he had been released from liability thereon by reason of the plaintiff's surrender of the stock certificate, which it held as collateral security to secure the payment of the note, without his knowledge or consent, and that the bank stock was worth $165 per share.

The allegations of the amended reply were controverted of record. A trial with the aid of a jury resulted in a verdict and judgment for the bank, and J. L. Elsey appeals.

[1] 1. Appellant first insists that his motion for a directed verdict in his favor should have been sustained, because there was no proof even tending to show that he had ever consented to the surrender of the bank stock, but, on the contrary, that the only proof upon that subject was to the effect that he not only did not consent to the surrender of the bank stock, but disavowed it, and refused to pay the note, and claimed his release as surety thereon immediately upon learning of the surrender of the stock. Young, the cashier and manager of the bank, testified that in 1909 he turned over the bank stock to A. G. Elsey, at his request, and that J. L. Elsey was not present. The only other proof relating to this specific transaction is that of J. L. Elsey, who swears that he did not know the bank stock had been surrendered until the note was presented to him for renewal, and that he declined to renew it, and claimed his release because the collateral had been surrendered.

The first paragraph of the reply traversed | sey was a stockholder and director of the the allegations of the answer, except the plaintiff, and assented thereto. allegation of suretyship upon the part of J. L. Elsey. The second paragraph of the reply alleged that J. L. Elsey bought the stock from A. G. Elsey after he had received it from the bank, and sold it to another brother, A. F. Elsey, that J. L. Elsey applied the proceeds from the sale to the payment of the joint liabilities of himself and his codefendant, A. G. Elsey, and that he thereby received the full benefit of the value of the five shares of stock. The third paragraph of the reply alleged that A. G. Elsey was a stockholder in the People's Bank, and that, after the note had been signed, A. G. Elsey attached the stock to the note; that this arrangement was made between the defendants, A. G. Elsey and J. L. Elsey, without the plaintiff requiring the same to be done; and that, under section 581 of the Kentucky Statutes, the plaintiff was without authority to take its capital stock as collateral security for the loan, evidenced by the note sued on. By a fourth paragraph of the reply the plaintiff alleged that it was insolvent at the time the note was executed and delivered to it in 1906; that on account of bad loans and mismanagement the value of its stock was greatly impaired, and that it was virtually worthless; that the bank was placed in the hands of the banking commissioner, as above recited; that for the purpose of paying its depositors, and other liabilities, it would be necessary to enforce the statutory double liability of the stockholders; and that by reason of these facts the stock was worthless at the time it was pledged to the plaintiff.

A general demurrer to the second paragraph of the reply was overruled, but a like demurrer to the third and fourth paragraphs was sustained.

By an amended reply, the plaintiff enlarged the third paragraph of its original reply by alleging that J. L. Elsey was a director in the People's Bank at the time A. G. Elsey sold and transferred the bank stock to A. F. Elsey on the books of the bank, and J. L. Elsey knew, or by the use of ordinary care could have known, that A. G. Elsey was about to have said stock transferred to A. F. Elsey, who was then the president of the plaintiff, and that J. L. Elsey assented to the same, and that the transfer was made by and through the collusion of the defendants A. G. Elsey, J. L. Elsey, and A. F. Elsey, to defraud the plaintiff. It further amended the fourth paragraph of the original reply, by alleging that J. L. Elsey was a director, and A. F. Elsey was president, of the plaintiff bank at the time the note sued on was executed; that the defendant J. L. Elsey knew, or by the exercise of ordinary diligence could have known, that A. G. Elsey was about to have said stock transferred on the books of the bank to A. F. Elsey; and that, when the transfer was made, J. L. El

The question as to what act of the creditor will discharge the surety was carefully and ably considered by Chief Justice Robertson in the early case of Sneed's Ex'r v. White, 3 J. J. Marsh. 525, 20 Am. Dec. 175, where, speaking in general terms, he stated the rule as follows:

"Any act of the creditor, which entitles the principal obligor to indulgence, after the debt shall have become due, according to the terms of the original contract, will, in equity, disindulgence; and his consent cannot be infercharge a surety who has not consented to the red from his silence, or neutrality, but must be evidenced by some positive act. This principle of equity is undeniably established by abundThe creditor should not be allowed, by any ant authorities; and it is just and rational. act of his, or by any new contract with the principal debtor, without the concurrence of his surety, to modify the original contract, affect of the parties." the rights, or change the attitudes and relations;

In that case Sneed had caused an execution to be levied upon the property of Pearson, the principal debtor, and by Sneed's order the sheriff stayed the execution for a few days, without the consent of White, who was Pearson's surety. In applying the general rule above set forth to the facts of that case, Chief Justice Robertson further said: levy of it on the property of the principal debt"A stay of execution by the creditor, after a or, will exonerate his surety, if the lien re sulting from a levy be extinguished and the surety did not approve the indulgence. This which has been defined; for, by releasing the is in perfect accord with the general principle property levied on from the lien, the creditor increases the risk of the surety. It is not mateficient to discharge the whole debt or not. It rial whether the property so exempted was sufis the fact that the creditor interfered, and thereby increased the risk of the surety, and not

the extent of injury resulting from his act, or. The opportunity of the surety to secure which will relieve the surety from his liability himself has been lost, and it is not necessary in equity. To make the right to relief depend to inquire under such circumstances whether on the degree of injury would, in the language the surety could in fact have obtained indemof Lord Loughborough, in Rees v. Barrington, nity." 'lead to a vast variety of speculations upon which no sound principle could be built.""

The principle announced in Sneed's Ex'r v. White, supra, has been approved and followed by this court in a long and unbroken line of decisions. See Sparks v. Hall, 4 J. J. Marsh. 36; Ross v. Clore, 3 Dana, 189; Tudor v. Goodloe, 1 B. Mon. 323; Dills v. Cecil, 4 Bush, 579; Preston v. Henning, 6 Bush, 556; Calloway v. Snapp, 78 Ky. 563; Struss v. Masonic Savings Bank, 89 Ky. 61, 11 S. W. 769, 12 S. W. 266, 11 Ky. Law. Rep. 333; Gano v. Farmers' Bank, 103 Ky. 508, 45 S. W. 519, 20 Ky. Law. Rep. 197, 82 Am. St. Rep. 596; Mayes v. Lane, 116 Ky. 566, 76 S. W. 399, 25 Ky. Law Rep. 824; Broughton v. Saylor, 129 Ky. 185, 110 S. W. 866, 33 Ky. Law. Rep. 611.

In Struss v. Masonic Savings Bank, supra, the principal debtor procured the bank to surrender a note upon which his brother was surety, by giving a mortgage to the bank upon property which he fraudulently represented was free from incumbrances, when in reality it was heavily mortgaged. After the discovery of the fraud by the bank, it waited five months, and then surrendered the note, released the mortgage, and sued to cancel the fraudulent transaction and hold the surety for the debt. In holding that the surety was released, Judge Pryor, in speaking for the court, said:

"The question arising in such a state of case is not whether the surety in fact has been injured, but has the laches of the bank been such as would have deprived the surety of his right to protect himself, if such circumstances existed as would have enabled him to do so? It must be recollected that the doctrine already announced, where the fraud or forgery has been committed by the principal, without any participation in the transaction by the surety, the latter is not released, is restricted by the further rule that, if the transaction between the creditor and the principal debtor is such that causes loss to the surety, such as surrendering a security to which he is entitled, the surety is nevertheless released. The surety stands upon the letter of his contract, and the chancellor will not start out in pursuit of equities that will relieve the creditor from an injudicious agreement in order to hold the surety bond for the debt. A mistaken judgment by the bank caused a new agreement in this case to be made by its chief officers, by which the period for payment of a debt then due was extended for five years, and a mortgage on realty taken to secure the payment, not only of the debt upon which the appellant was the surety, but of unsecured paper owing by the principal debtor to the bank. He was then on the eve of insolvency, and notified the bank of his purpose to make an assignment on the next day. The bank, after being advised, accepted a conveyance of the debtor's own land that it knew was constructively fraudulent, with a view of securing, not only the debt in controversy, but other debts on which there was no security, and after knowledge of the fraud, and after lulling the surety into perfect security, so far as the pres ent indebtedness is concerned, for near five months, then seeks the aid of a court of equity to relieve it from the fraud of the principal debt

The rule above announced is carried even further by some of the states, including Kentucky, Pennsylvania, and Delaware, which hold that a general deposit of the principal in a bank holding his note, with an indorser or surety thereon, is a means of satisfaction or a security in its hands, which the creditor bank must hold and apply to the payment of the note, on pain of releasing the surety or indorser, thus holding that to permit the withdrawal of the funds of the principal on general deposit at the maturity of the note is in practical effect the same thing as surrendering to the principal a collateral security for the debt, and effects a discharge of the surety. Bank of Taylors ville v. Hardesty, 91 S. W. 729, 28 Ky. Law Rep. 1285; Pursifull v. Pineville Banking Co. 97 Ky. 154, 30 S. W. 203, 17 Ky. Law Rep. 38, 53 Am. St. Rep. 409; Faulkner v. Cumberland Valley Bank, 14 Ky. Law Rep. 923; Fordsville Banking Co. v. Thompson, 82 S. W. 251, 26 Ky. Law Rep. 534; Burgess v. Deposit Bank of Sadieville, 97 S. W. 761, 30 Ky. Law Rep. 178; Planters' State Bank v. Schlamp, 124 Ky. 295, 99 S. W. 216.

2. In some jurisdictions, however, where the creditor surrenders possession of a collateral security, he must account for it, and the surety is released pro tanto, only. But in this jurisdiction the surety is released from all liability, it being immaterial whether the property was sufficient to discharge the whole debt or not. It is the fact that the creditor interfered, and thereby increased the risk of the surety, and deprived him of his right of subrogation, and not the extent of injury resulting from his act, that relieves the surety. This is the effect of the Kentucky cases, beginning with Sneed's Ex'r v. White, supra. In Royster v. Heck, 14 Ky. Law Rep. 267, before the Superior Court, the bank released to Royster, the principal debtor, certain of his property, "more than enough in value to pay off and discharge in full all of his liabilities," upon which property it had a lien, in consideration of Royster's conveying to the bank certain other property. The court said:

"Did the contract release Heck as surety on the notes? Of this there can be no question. The bank had a lien upon the land released to Royster, and a creditor is not entitled to relinquish any hold which he has actually acquired on the property of the principal, which might have been made effectual for the payment of the debt, nor must he deal with the debtor or the security which he holds upon the debtor's property to the prejudice of the surety, unless he intends to release him from further liability. There is no better settled principle of law than that, when two persons are respectively liable to the creditor for the same debt, one as principal and the other as surety, an absolute release of the principal releases the surety. In many of the states the surety is released pro tanto or entirely, according to the value of the security released; but in this state any