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others. Judgment for defendants, and plain- , deed to Colyer. About a month before the tiffs appeal. 'Affirmed.

deed another inquest was held in the Pulaski Virgil P. Smith, of Somerset, for appel-circuit court, where he was adjudged to be lants. Wesley & Brown, of Somerset, for ap- sane and restored to his property righte. pellees.

Eighteen witnesses testify that during the

last 10 years of his life he was of sound NUNN, J. [1] This is an action by Mary mind and capable of transacting business. B. Meece, a daughter of W. F. Richardson, Five witnesses testify to the contrary, but, and by her husband, J. C. Meece, as guardian even if there was no other evidence in the for the infant children of W. F. Richardson. case, and he had never been adjudged a The purpose of the action was to set aside a lunatic, the evidence of these five witnesses conveyance made by Richardson to the ap- would not be controlling or convincing. There pellee on the ground of mental incapacity, was no evidence of undue influence. The undue influence, and inadequate considera- court upheld the conveyance and dismissed tion.

the petition. Under this state of facts we W. F. Richardson conveyed to his nephew, must, of course, accept the finding of the Colyer, the appellee, 32 acres of land, in con- chancellor on the question of mental incapacsideration that Colyer would “care and pro- ity. vide for the said W. F. Richardson as long But appellant contends that the court erred as he lived, furnish him suitable food and in failing to set aside the deed on the ground raiment, wait on him during his sickness, of undue influence. Although there is no eviproperly bury him, and erect a tombstone to dence of undue influence, appellant argues his grave suitable and appropriate.” The that the burden was upon the grantee to witnesses estimate the value of the land at show that the deed was made freely and from $12 to $20 per acre.

understandingly. Colyer's mother was a sister to Richard- [2, 3] The general rule is that one who

She owned an undivided interest in the charges fraud has the burden of making out land, and joined in the conveyance to her his case. But, where the conveyance is volson. Colyer had a little money and some untary and without consideration, or an inpersonal property, altogether amounting to adequate consideration, the burden is upon not more than $300, and at the time he made the grantee to prove that the grantor acted the conveyance he executed a will devising freely and understandingly, where there is a all of his personal property to Mrs. Colyer. relation of trust and confidence between the Whether this was intended as compensation parties, such as attorney and client, guardian for the release of her interest in the land is and ward, or parent and child. As illustratnot made clear by the record. Anyhow, Col- ing this exception to the general rule, the yer at once moved to the place and carried following cases are in point: Hoeb v. Maschout his part of the contract. Richardson was inot, 140 Ky. 330, 131 S. W. 23; Shacklette a widower when he made the conveyance, v. Goodall, 151 Ky. 20, 151 S. W. 23. and had been living there alone for many [4, 5] But here the facts are not sufficient months, afflicted with Bright's disease and to raise a presumption of fraud. The mere dropsy. He lived 68 days after the convey- fact that the parties were of kin does not ance. Before making the trade with Colyer, establish such a confidential relation as will he offered to convey it to his son-in-law, give rise to the presumption of fraud. The Meece, the appellant, if Meece would move fact that Richardson only lived 68 days after there and take care of him. Meece would the deed does not render the consideration not move to the Richardson place, but offered inadequate, although the obligation imposed to give Richardson a home with him at the upon the grantee was perhaps made less Meece place if Richardson would make the onerous. As said in the case of Dunaway v. conveyance. Richardson insisted that he Dunaway, 105 S. W. 137, 32 Ky. Law Rep. 29: wanted to live and die at his own home. “The test is: Was it fair and reasonable Richardson's wife died about a year before when entered into?. The grantor might have the conveyance, but they had been living the time the deed was made, it seemed likely

lived several years longer than he did, and at apart for 14 or 15 years. There is testimony that he would live for several years. In view that they were divorced, although upon what of the condition of the grantor's health, because ground and at whose instance the record of his physical infirmity, and the probability does not disclose. Meece married Richard- that he would in time become more and more

helpless, and a charge of constant care and atson's oldest daughter about 4 or 5 years be- tention, the agreement of the grantee to support fore this controversy arose, and after that him the balance of his life, and to decently inter time Richardson's wife and infant children him, made a sufficient consideration to uphold

the deed." lived with Meece. Meece did a good part by them, but the question here is not one of com

The evidence makes it clear that the land pensation to him out of the Richardson es-conveyed was not an excessive payment for tate. Richardson was sent to the asylum as the services rendered by Colyer during the a lunatic three times, and each time kept 68 days that he waited upon and provided there from 2 to 4 months, but his last release for Richardson.

to designate Clara Allen as the beneficiary, ALLEN'S ADM'R v. PACIFIC MUT. LIFE and she was entitled, upon his death, to reINS. CO.

cover the amount due under the policy, al(Court of Appeals of Kentucky. Nov. 9, 1915.) though she had no insurable interest in his


life. This question has been settled by this INSURANCE Ow114-ACCIDENT POLICIES-INSURABLE INTEREST—BENEFICIARY.

court in Hess v. Segenfelter, 127 Ky. 348, 105 Where deceased procured an accident poli-S. W. 476, 14 L. R. A. (N. S.) 1172, 128 Am. cy which named as the beneficiary a woman to St. Rep. 343; Rupp v. Western Life Indemwhom deceased was related neither by blood nor nity Co., 138 Ky. 18, 127 S. W. 490, 29 L. R. wife, and deceased paid all of the premiums, the A. (N. S.) 675. beneficiary was entitled to the amount due un- As the beneficiary named in the policy is der the policy, though she had no insurable in- entitled to the insurance, it necessarily folterest in deceased's life.

lows that the administrator cannot recover [Ed. Note.-For other cases, see Insurance, Cent. Dig. $$ 136-138; Dec. Dig. Om 114.]

it for the estate, and therefore the judgment

dismissing his suit is affirmed.
Appeal from Circuit Court, Kenton County,
Common Law and Equity Division.
Action by Leon Allen's administrator

MOTTLEY V. ROEMER et al. against the Pacific Mutual Life Insurance Company. From a judgment for defendant, (Court of Appeals of Kentucky. Nov. 9, 1915.) plaintiff appeals. Affirmed.



MENT OF LIEN-MATURITY OF NOTES-JUDGC. B. Shimer and Geo. E. Phillips, both of MENT. Covington, and A. C. Hall, of Newport, for

In an action to enforce the lien of a judgappellant. Barbour & Bassmann, of New- tion sale and obtained a lien subordinate to the

ment creditor who had purchased at an execuport, for appellee.

liens of the assignees of defendant's seven pur

chase-money notes, making such assignees parCARROLL, J. On January 26, 1912, the their liens, where it appeared that only two of

On January 26, 1912, the ties defendant and calling upon them to assert appellee insurance company issued to Leon the notes had matured, a judgment that the Allen, upon his request and application, a land was indivisible, without materially impairpolicy of accident insurance in which it agreed ing its value and for its sale, was invalid. to pay “to the insured or his beneficiary, Purchaser, Cent. Dig. 88 800-807; Dec. Dig.

[Ed. Note.-For other cases, see Vendor and Mrs. Clara Allen, his wife, or in the event om 285.]

Om of her prior death, to the executors, administrators, or assigns of the insured," the

Appeal from Circuit Court, Warren County. principal sum of $1,000, in the event the in

Action to enforce a lien by E. Roemer sured came to his death by accidental causes. against J. F. Mottley and others, with cross

This suit was brought by the administrator petition by the other defendants. of Allen to recover the sum of $1,000, on the judgment and order of sale, defendant Mottground that he had come to his death from ley appeals. Reversed. accidental causes within the meaning of the Bradburn & Basham, of Bowling Green, policy. The petition further averred that: for appellant. Wright & McElroy, of Bowl

“Said Clara Allen, designated in said policy of ing Green, for appellees. insurance as the wife of said insured and as the beneficiary of said policy, was not and is not the wife of said Leon Ailen, and was not

HANNAH, J. This appeal involves the related to him by blood or marriage, and was not same matters as the case of Roemer v. Motta creditor of said insured, nor was she the af- ley, 164 Ky. 313, 175 S. W. 645. J. F. Mottfianced wife of said insured."

ley bought of R. B. Chaney and others, on It was further averred that all the pre- December 5, 1911, a tract of land in Warren miums due on the policy had been paid by county, containing 126 acres, for which he Leon Allen in the manner and at the times paid $1,500 in cash and executed seven promrequired by the policy contract, and that the issory lien notes, each in the sum of $223.45, company had not paid to Clara Allen any and due on the 1st days of January of the part of the sum stipulated in the contract. years 1913 to 1919, both included. These notes

The lower court sustained a general de were sold and transferred by the vendors of murrer to the petition, and the administra- the land to James T. Blewett; and Blewett tor appeals.

sold and transferred the second note to WarThe administrator is endeavoring to col-ren Lodge No. 225 I. O. O. F. of Rockfield. In lect the money due under the contract upon August, 1913, appellee Roemer sued Mottley the theory that Clara Allen had no insura- in the Warren quarterly court and obtained ble interest in the life of the insured, and, a judgment against him in the sum of $195.as the contract could not be enforced for 45, execution upon which he caused to issue her benefit, the estate of the insured was en- from the office of the clerk of the Warren titled to the insurance. But if, as averred circuit court, and to be levied upon the 126 in the petition, the contract was procured acres of land mentioned. At the execution by, and all the premiums due on the policy sale, Roemer became the purchaser, for the were paid by, the insured, he had the right | sum of $243.02, the amount of the debt, interest, and costs. The land being already incumbered with the purchase-money lien LUCAS LAND & LUMBER CO. V. COOK'S notes, Roemer by his purchase at execution

ADM'R. sale obtained only a lien thereon subordinate (Court of Appeals of Kentucky. Nov. 9, 1915.) to the purchase-money liens of Blewett and 1. MASTER AND SERVANT 103—INJURY TO the Warren Lodge. Kentucky Statutes, §

SERVANT-MASTER'S LIABILITY. 1709, subsec. 1. On February 3, 1914, Roem- place a log, whereby the sawyer was killed, be

Whatever was done in attempting to reer instituted this action in the Warren cir- ing actually done by him, or supervised and cuit court against Mottley, to enforce the directed by him, the men working with him lien so obtained by him. Blewett and the obeying his signals or orders, the master was

not liable. lodge were made parties defendant as other

[Ed. Note.--For other cases, see Master and lienholders, and called upon to assert their servant, Cent. Dig. $ 175; Dec. Dig. Om 103.) liens. They answered on March 3, 1914, 2. MASTER AND SERVANT 129-INJURY TO and set up the seven notes heretofore men- SERVANT-PROXIMATE CAUSE. tioned, making their answer a cross-petition into a sawmill, in striking'a log, moving it out

The act of a servant, while hauling logs against Mottley, and praying for an enforce- of place on the skidway, was not the proximate ment of their liens. This pleading was filed cause of the sawyer's injury while attempting March 3, 1914; and on the same day Mottley to replace it, there being no causal connection filed his answer to Roemer's petition, assert- between it and the injury. ing that the debt due him was created after servant, Cent. Dig. S$ 257–263; Dec. Dig. Om

[Ed. Note.-For other cases, see Master and the purchase of the land in question, and 129.] that he was entitled to a homestead therein 3. MASTER AND SERVANT 115-SAFE PLACE as against Roemer's debt. By reply filed on TO WORK. March 14, 1914, the plaintiff Roemer denied

There is no failure to furnish a sawyer a that Mottley was a bona fide housekeeper, built in the way sawmills are usually and gen

reasonably safe place to work, the mill being or entitled to a homestead exemption. On erally built, and containing no dangerous places the same day, March 14, 1914, a judgment beyond such as are necessarily found in all sawwas entered, wherein it was adjudged by the

mills. court that the land involved was indivisible, Servant, Cent. Dig. 88 205, 206; Dec. Dig. Omo

[Ed. Note. For other cases, see Master and

, without materially impairing its value, and 115.] that a sale thereof be had for the purpose of 4. NEGLIGENCE Cm121–NECESSITY OF PROOF. satisfying the liens of Blewett and the lodge. Negligence will not be presumed, but must No sale was ordered in satisfaction of Roem- be alleged and proven. er's lien; the question of the priority of his

[Ed. Note.-For other cases, see Negligence, lien over the homestead right of the defend- Cent. Dig. $$ 217–220, 224-228, 271; Dec. Dig!

Om 121.] ant, Mottley, and the question of Mottley's right to a homestead in the land in question, Appeal from Circuit Court, McCracken were both reserved for future adjudication. County. The land was appraised at $3,000; and at Action by William H. Cook's Administrathe sale it was bid in by the plaintiff Roem- tor against the Lucas Land & Lumber Comer for $2,000. Mottley thereupon filed excep- pany. Judgment for plaintiff, and defendant tions to the report of sale. The chancellor appeals. Reversed. sustained the exceptions, and set the sale Wheeler & Hughes and Berry & Grassham, aside. On appeal from the judgment setting all of Paducah, for appellant.

or appellant. Hendrick & & the sale aside, the action of the chancellor Nichols, of Paducah, and James T. Miller, of was approved by this court on the ground Nashville, Tenn., for appellee. that it was error to order a sale of the land until the maturity of all the notes. Roemer MILLER, C. J. This is an appeal from a v. Mottley, supra.

judgment of the McCracken circuit court This present appeal is from the original which awarded the appellee, as the adminisjudgment and order of sale, and is prosecut- trator of the estate of W. H. Cook, deceased, ed by Mottley. It was pending when the the sum of $8.500 damages against the appelother appeal was decided by this court; but, lant, for having negligently caused the death for some reason, a consolidation of the two of said Cook. appeals was not sought.

The petition charges that Cook came to his There is nothing in the record before us death: (1) By reason of the gross negligence that shows any right to a judgment on all and carelessness of the other employés of

At the time this judgment was appellant, who were laboring in a different rendered, only two of the seven notes had line of employment from Cook; (2) from the matured, and the other five were not yet defective machinery and appliances with due. See Leopold v. Furber, 84 Ky. 214, 1 which he was working; and (3) from the apS. W. 404, S Ky. Law Rep. 198; Gentry v. pellant's failure to provide Cook with a reaWalker, 93 Ky. 407, 20 S. W. 291, 14 Ky. sonably safe place within which to do his Law Rep. 351; Gunn v. Orndorff, 67 S. W. work. 372, 68 S. W. 461, 23 Ky. Law Rep. 2369. Henry Schnuck, appellant's foreman, was The judgment is therefore reversed.

also made a defendant, but he was relieved of all blame by a peremptory instruction | more of the employés, directing them to place given by the court at the conclusion of the a chain around the log in order to drag it evidence.

back to its proper place on the skidway. For a reversal appellant insists there was This chain was attached to a pulley overno evidence of negligence upon the part of head. After the chain had been attached to the appellant, that Cook's death was caused the log, Cook took a stick and attempted to solely by his own negligence, and, conse- press or push the end of the log with it, or, quently, that its motion for an instruction, perhaps, to hold the end in position. But peremptorily directing the jury to find for when the power was applied to the chain the defendant, should have been sustained. pulley under Cook's signals and directions,

The testimony is quite vague and frag- the end of the log nearest him swung round, mentary in many essential particulars; but, struck the unlocked lever, which controlled as we read it, the following facts appear: the saw carriage, pushed against the stick

Appellant's mill is located on the bank of Cook was using, and caused him to step back the Tennessee river, at Paducah, and Cook and place one foot in the track along which had worked as sawyer in the mill for quite the carriage passed, or in some way, to get a while. The logs which he handled were in the path of the carriage. The log evidentcut by a belt saw. The logs were brought ly struck Cook and the lever about the same up into the mill from the river on a log time, knocking Cook onto the carriage and car, which was pulled along a track with a causing the lever to release the saw carriage cable that coiled around a large drum, or and start it forward at a rapid speed towards “bull wheel,” in the mill, which was op- the saw, which was running at full speed. erated by steam power. When Cook was en- Cook was carried against the saw, and so gaged in sawing a log, and in his regular badly mangled that he died in a few minutes position, the saw was at his right side, and thereafter. a little in front of him. And, running along To sustain the charge of negligence, appelin front of him, on a track, was the saw car- lee insists that the place where Cook was doriage, which was operated by steam, and ing his work was unprotected; that there controlled by a lever at Cook's right hand. was nothing between the place where Cook At his left side were the "skids" or "skid was required to stand and the skidway, exway,” a slightly sloping platform, on which cept a post about 18 inches high and about the logs were placed before being rolled onto 10 feet to his rear, which afforded him practhe carriage for the sawyer. Behind the tically no protection from the logs on the skidway, on a track parallel to the track skidway. This fact, in connection with the on which the saw carriage moved, the log act of another employé in hauling the log car above mentioned brought the logs up from the river so as to strike the end of the from the river, and, when the logs reached other log and throw it out of position on the the mill, they would be rolled off on the skidway, constitute practically all the acts of skidway.

negligence charged against the appellant. Between Cook and the saw machinery at It further appears that the lever which his right, there was a wooden partition. The controlled the saw carriage was left unlocksaw carriage was propelled by steam, at a ed by Cook when he attempted to have the rapid speed, along a steel track, and was log removed, and that it was the practice, if used to convey the logs to and from the not the duty of the sawyer, to lock the lever steel belt saw that sawed them into lum- whenever he left it beyond his reach, or conber. In front of Cook and within his reach, trol. there were two levers and a foot tread. [1, 2] From a careful reading of all the eviWith the foot tread he threw the logs from dence, we are clearly of opinion that it not the skidway onto the saw carriage; with only fails to show any defective appliances, one of the levers he operated what is called or other facts tending to prove that appellant the "niggerhead,” which was used to adjust was negligent, but it shows beyond question the log after it had been thrown onto the that whatever was done at the time of the saw carriage; and he used the other lever, accident was either actually done, or superas above stated, to control the movements of vised and directed by Cook. He was in the saw carriage along the track in front of charge of the sawing operations, and the him.

proof of the appellee shows that Cook initiatl'pon the occasion of the accident, the log ed the movement which resulted in his death, car had been pulled up from the river with The act of the man in charge of the log car a load of logs, and when it entered the mill, in permitting the log on the car to strike the the end of one of the logs on the car struck end of another log lying on the skidway and the end of a log lying on the skidway, and knock it out of place was not the proximate knocked or pushed it about 3 feet out of its cause of Cook's death. It might have reoriginal position, and so as to interfere with mained in that position on the skidway indefCook's operations as sawyer. One end of this initely without causing injury to any one, if log was off the skidway and rested against Cook had not attempted to remove it. In the wooden partition which separated Cook order to establish proximate cause, it is necfrom the saw machinery. When Cook dis-essary that a causal connection be shown be

act must have been the cause which produced, such effect to old transactions as the parties by the injury. The injury was caused, in this their conduct have given, this being particularly case, by the independent and subsequent act true in the instant case, as the couple were

. of Cook,

[Ed. Note.-For other cases, see Wills, Cent. Moreover, all the work done in the mill in Dig. sg 1698-1703; Dec. Dig. cw714.]

, ) connection with the placing of logs was nec- 2. WILLS Om 139 – CONSTRUCTION – PURPOSE essarily done with a view of placing the logs OF CONSTRUCTION. where the sawyer could handle them, and the The only purpose of rules of construction proof clearly shows that the men working is to give effect to the intent of the testator. with Cook obeyed his signals or spoken or. Dig. $$ 952, 955, 957; Dec. Dig. Omw439.]

[Ed. Note. For other cases, see Wills, Cent. ders, to accomplish that purpose. See Red River Lumber Co. v. Newkirk, 12 Ky. Law

Appeal from Circuit Court, Boone County. Rep. 635.

Action by Sarah F. Whitaker's adminis[3] The claim that appellant failed to fur-trator against Mary L. Whitaker and others. nish Cook with a reasonably safe place in From a judgment for plaintiff, defendants which to do his work is not sustained by the appeal. Reversed, with directions to dismiss. proof. On the contrary, the proof shows Clore, Dickerson & Clayton, of Cincinnati, that appellant's mill was built in the way Ohio, for appellants. S. Gaines, of Burlingthat sawmills are usually and generally built, ton, for appellee. and contained no dangerous places beyond such as are necessarily found in all saw

TURNER, J. In 1882 Thomas S. Whitaker mills. It is impossible to avoid the conclu- and Sarah F. Whitaker had been married for sion that the one controlling act that caused several years, and lived upon his farm of this unfortunate accident to Cook was his act about 300 acres in Boone county. They did in attempting to remove the log.

not then have, and never had, any children. [4] This court has repeatedly held, in con- At that time he bought another tract of land formity with the weight of authority gen- of about 38 acres, known as the Gaines farm, erally, that negligence will not be presumed; and in paying for same used $1,200 of her it must be alleged and proved. 25 Cyc. 1446; money. . They moved to the Gaines farm, Johnston's Adm’r V. East Tennessee, Vir- and lived there until his death, in 1908. ginia & Georgia Ry. Co., 30 S. W. 415, 17 Ky. After his death there was found among his Law Rep. 67; L. & N. R. Co. v. McGary's papers the following instrument: Adm'r, 104 Ky. 509, 47 S. W. 440, 20 Ky.

"$1,200.00 Law Rep. 691; Vissman v. Southern Ry. Co.,

"Boone County, Kentucky, May 5th, 1885.

"Due Sarah F. Whitaker twelve hundred 89 S. W. 502, 28 Ky. Law Rep. 429, 2 L. R. ($1,200.00 dollars on demand, it being the

) A. (N. S.) 469; Reliance Textile Works v. amount she paid on the land at Gainesville Williams, 136 Ky. 579, 122 S. W. 207, 124 S. bought of A. S. Gaines. Witness my hand and W. 850.


Thomas S. Whitaker.” We conclude, therefore, as was aptly said Thomas S. Whitaker left a will, by the in Louisville Gas Co. v. Kaufman-Straus & terms of which he devised to his wife in fee Co., 105 Ky. 158, 48 S. W. 434, 20 Ky. Law the Gaines farm of about 38 acres, above reRep. 1069, that the evidence is not sufficient ferred to, and also devised to her for life to authorize a judgment transferring the the 300-acre farm upon which they had formoney or property of the defendant to the merly lived, and devised to her for life all of possession and profit of the plaintiff, and that his personal estate. The value of the Gaines the circuit court should have sustained appel- farm was $3,000 or more, and the value of lant's motion for a peremptory instruction, the 300-acre tract about $10,000, and his surdirecting the jury to find for the defendant. plus personal property after the settlement of Judgment reversed.

his estate amounted to something over $4,000. The wife was named as executrix in the will, but declined to qualify, whereupon her

nephew, J. M. Grant, qualified as adminisWHITAKER et al. v. WHITAKER'S ADMÄR. trator with the will annexed, and proceeded (Court of Appeals of Kentucky. Nov. 10, 1915.) to, and did, settle the estate. 1. WILLS On 714— CONSTRUCTION — INTEREST

Shortly after the death of Thomas S. DEVISED—SATISFACTION OF CLAIMS.

Whitaker the paper dated May 5, 1885, was Where a testator who used his wife's money turned over to her by the administrator, and, in acquiring land, and executed an instrument although she had possession of the paper reciting his indebtedness, thereafter devised to her the land in fee, together with a life estate until her death in May, 1912, it was never in all of his other property, and the widow, verified by her or presented as a claim though she survived her husband several years, against the estate of her husband during made no attempt to enforce the obligation, the devise in fee will be deemed a satisfaction of her lifetime. After her death the same J. M. her lien on such land, under the rule that, Grant qualified as her administrator, verified where a devise is equal or greater in value than this claim, and brought this equitable action a claim against the testator, it will be deemed against the devisees in remainder of the 300a satisfaction, and in view of the fact that a court of chancery will, after a long lapse of acre tract of land, and seeks to subject same years when the parties in interest have died, give to the payment of the claim. The lower

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