(273 S.W.)

all cases where a jail sentence is inflicted. | gift is made complete by the possession and We so held in the recent case of Boone v. enjoyment of the property.

Com., 206 Ky. 657, 268 S. W. 286.

A careful review of the record discloses no

error of sufficient importance to justify a reversal of the judgment as to either of the appellants, hence the judgment is affirmed in toto.

Judgment affirmed.

THOMPSON et al. v. LATIMER. (Court of Appeals of Kentucky. June 9, 1925.)

1. Insurance 585(1)—Insured may desig. nate beneficiaries in policy, and they are entitled to its proceeds.

Under Ky. St. § 655, insured may designate beneficiaries in policy, and they are entitled to its proceeds.

2. Insurance 590-Proceeds of life insurance policy, in which testator's children were designated beneficiaries, not liable for any debt due by his estate.

Appeal from Circuit Court, Pendleton County.

Suit by Sallie Latimer against J. F. Thompson and others. Judgment for plaintiff, and defendants appeal, Affirmed,

Wade H. Lail, of Cynthiana, and R. P. Blair, of Berry, for appellants.

M. C. Swinford, of Cynthiana, and A. H. Barker, of Falmouth, for appellee.

MCCANDLESS, J. W. M. Thompson died intestate survived by six children as his only heirs at law. A short time before his death he assigned to five of his children a policy of insurance on his life, by having them designated as beneficiaries; it having theretofore been payable to his estate. After his death the beneficiaries collected the policy and distributed the proceeds among each other, and the estate was distributed without reference to it. A daughter who was not designated a beneficiary therein brought this action to surcharge the administrator's settlement, and to have each of the other children charged with the amount received from the insurance policy as an advancement, and to be allowed the sum of $600 out of the distributable funds of the estate before a further distribution. The chil-chancellor granted the relief sought, and defendants appeal.

Under Ky. St. § 671, proceeds of life insurance policy, in which testator's children were designated beneficiaries, are not liable for any debt due by his estate.

3. Descent and distribution 109 Undisposed of part of estate is subject to distribution among nonfavored children, to equalize

their share with favored children.

If a parent gives or devises to certain dren a part only of his estate and dies intestate as to the remainder, a sufficient amount of the undisposed of part will be taken to equalize the others with the favored ones, or equalize them as far as the undevised estate will go. 4. Descent and distribution 98-All devises with view to permanent settlement considered as advancement unless clear intention to contrary appears.

Under Ky. St., § 1407, liberally construed, all devises for child with a view to a permanent settlement will be considered as an advancement, unless it clearly appears that it was otherwise intended.

5. Descent and distribution

96-Designation of testator's children as beneficiaries in life insurance policy held "advancement." In view of Ky. St. § 1407, gratuitous designation of children as beneficiaries in a life insurance policy on parent's life, whether treated as a gift or testamentary assignment, held an advancement, where the designation was clearly with a view to a permanent settlement in life of the parties.

[Ed. Note.-For other definitions, see Words and Phrases. First and Second Series, Advancement (To Child).]

6. Descent and distribution

112-How value

of advancements are estimated, stated. Advancements are to be estimated at their value when made unless they are given to be enjoyed at a future time, in which event the value is to be estimated at the time when the

as

[1, 2] The insured had a right to designate the beneficiaries in the policy, and they were entitled to its proceeds. Section 655, Ky. Statutes. And such proceeds are not liable for any debt due by his estate. Section 671, Ky. Statutes. It is further earnestly insisted by appellants that the proceeds of this policy did not belong to the estate of W. M. Thompson and was not a part of his assets during life, and therefore its assignment cannot be classified under the heading of property subject to advancements. The argument is that the property in ques tion at the time it was assigned to the appellants by the insured was neither real nor personal property, but was merely a policy on his life, under his control, that could have been changed or reassigned at any time before his death to any other person or persons having an insurable interest in his life; that appellants received no benefits from the policy during the lifetime of the insured, and after his death they received the benefits as lawful beneficiaries under the policy, and not as a gift of any real or personal property owned by the intestate; and that a gift of such benefits does not constitute an "advancement," which is defined to be "an irrevocable gift in præsenti of money or property, real or personal, to a child by a parent to enable the donee to anticipate his inheri

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-5

tance to the extent of his gift." 14 Cyc. 162. | gift that is not an advancement if not so inThe question has not arisen before in this tended when made by the parent." court, and we have found but four reported

cases covering it. In one of these appellants' view is upheld. Vinson v. Vinson, 105 La. 30, 29 So. 701. But the weight of authority is otherwise.

Under similar facts in Rickenbacker v.

Zimmerman, 10 S. C. 110, 30 Am. Rep. 37, the value of the policy at the time it was taken out, together with the premiums paid,

was held to be an advancement. In Cazassa v. Cazassa, 92 Tenn. 573, 22 S. W. 560, 20 L. R. A. 178, 36 Am. St. Rep. 112, a case in which there were several policies payable to an elder son of the insured, it was held that the beneficiary should be charged as an advancement with the net amount received by him upon all the policies after his father's death, and the same conclusion was reached in Culberhouse v. Culberhouse, 68 Ark. 405, 59 S. W. 38.

In many respects the Tennessee statute (Milliken & V. Code Tenn. §§ 3280, 3281) is similar to that of Kentucky, and in the Cazassa Case it is said:

(273 S.W.)

sufficient amount of it to equalize the others with the favored ones, or equalize them as far as the undevised estate will go. This statute is based on common justice and equality and should be liberally construed. Not only that, but any and all devises toward a child with a view to a permanent settleunless it clearly appears that it was other

ment will be considered as an advancement

wise intended. There is no intimation of a

E. H. Johnson, of Harlan, for appellant.
Rader & Howard, of Harlan, for appellees.

DIETZMAN, J. A demurrer having been sustained to appellant's petition, and she having declined to plead further, the petition was dismissed by the lower court, and appellant appeals. It is averred that on March 31, 1919, appellant purchased and procontract between the parties and the assign- cured a deed to a certain described tract ment was gratuitous; clearly it was executed of land, which deed she never put to recwith a view to a permanent settlement in ord; that thereafter she put valuable imlife of the parties, so that it is immaterial provements upon the land and placed a tenwhether the assignment of the policy is to ant in possession thereof; that after this, be construed as an investment for appellants the appellees, with full knowledge and noon the part of the father by which he paid tice of the fact that appellant had purchas the premiums with funds that would other-ed this property and had legal title therewise go to his estate, or be regarded as testamentary in character, as in either instance it is clearly an advancement.

[6] As to the amount to be charged, the law is well settled in this state. Advancements are to be estimated at their value when made, unless they are given to be enjoyed at a future time, in which event the value is to be estimated at the time when the gift is made complete by the possession and enjoyment of the property. Farley v. Stacey, 177 Ky. 118, 197 S. W. 636. 1 A. L. R. 1181; Hook v. Hook, 13 B. Mon. 528; Stevenson v. Martin, 11 Bush, 485; Ward v. Johnson, etc., 124 Ky. 1, 97 S. W. 1110, 30 Ky. Law Rep. 240; Bowles v. Winchester, 13 Bush, 15.

It follows that whether treated as a gift or in the light of a testamentary assignment, the amount of the policy received by each beneficiary after the death of the intestate will constitute the sum to be charged as an advancement.

to, and was in the possession of the same against the world by herself and through her tenant, purchased this land from appellant's vendors, took a deed to the same, and thereafter, without appellant's knowledge or consent, ejected her tenant from the land and took possession of the same, and thereafter sold and conveyed by deed the property in question to bona fide purchasers for value without notice of appellant's unrecorded deed. She avers that by reason of these facts she has been damaged by appellees in the sum of $2,500, being the fair and reasonable market value of the property at the time they sold the same to the innocent purchaser, and for this sum she seeks judgment.

The judgment of the lower court must be reversed. Appellees, by their own wrong, ousted appellant from the possession of her land. With their recorded deed to the property, which as between appellant's vendors or appellant and themselves passed no title,

Perceiving no error, the judgment is af- they yet held such wrongful possession under

firmed.

CAWOOD v. CAWOOD et al.

(Court of Appeals of Kentucky. June 12, 1925.)

Torts 11-Defendants wrongfully ousting plaintiff and transferring property to innocent purchaser liable for value of property.

Where defendants, taking deed with notice

of plaintiff's unrecorded deed, wrongfully ousted plaintiff from possession of her property, and held wrongful possession thereof under color of title, upon transfer of property to an innocent purchaser, they became liable to plaintiff for reasonable market value of property.

Appeal from Circuit Court, Harlan County. Suit by Lillie D. Cawood against George T. Cawood and others. From the decree of dismissal, plaintiff appeals. Reversed.

a color of title. Having wronged the appellant once, it was their duty not to wrong her a second time by transferring such wrongful possession under color of title to a purchaser for value and without notice, thereby investing him and divesting her of the fee. As between appellant and appellee, so long as the latter retained possession of the property under color of title, the appellant could have compelled a restoration of the possession and surrender or cancellation of the color of title. Being under these duties of restoring possession and surrendering void

claims to title, appellees could not, by transferring the property to an innocent purchaser, escape the performance of these duties or the obligation to make appellant whole because of their inability to so perform caused by their own acts in making such transfer.

In the case of Johns v. Parsons, 185 Ky. 513, 215 S. W. 195, we had before us a somewhat similar case. There the vendor of property, after having made and delivered to the vendee through her agent a deed to the same,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

entered into a wrongful agreement with the, the size of the verdict, and insists that it is agent, whereby the agent redelivered the excessive. The proof shows that Dickerson deed to the vendor, after which the latter was a sober, industrious man; that he had destroyed the deed and made out another been employed by the defendant for more one conveying the property to an innocent than four years. On the day he was killed purchaser, the agent profiting by the latter his earnings were $4.05. The defendant inconveyance. The vendee, on learning of sists, however, that the proof only shows these facts, sued the vendor for the reason- that he was earning something like $360 per able market value of the property at the time year. Granting that he was earning that of the conveyance to the innocent purchaser. much and no more, the proof showed that the In sustaining her right to this recovery, we man had an expectancy of 27.34 years, and at said: the low estimate of his earnings relied upon by defendant, if he lived out his expectancy, and never received an advancement or promotion of any kind, he would have earned almost $10,000. The proof showed that in addition to the $360 paid him by defendant he cultivated a small crop, produced the corn and meat needed for his family, and earned some money by working for other people. Under the circumstances, we cannot say the verdict is excessive.

"We base his [the vendor's] liability not on his failure to comply with the contract, but on his tort in destroying the original deed and depriving Mrs. Parsons of her property."

See, also, note in 26 L. R. A. (N. S.) 284. It therefore follows that the lower court erred in sustaining a demurrer to appellant's petition, and its judgment must be reversed.

ILLINOIS CENT. R. Co. v. DICKERSON'S
ADM'R.

(Court of Appeals of Kentucky. June 12,
1925.)

Death 99(4)—$8,100 for death of one with life expectancy of 27 years held not excessive.

Verdict of $8,100 for death held not excessive, where deceased had life expectancy of over 27 years, and an annual income of $360 per year, and in addition cultivated a small crop for family, and also earned some other money working for others.

Appeal from Circuit Court, Carlisle County. Action by the administrator of Buck Dickerson against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Trabue, Doolan, Helm & Helm, of Louisville, John E. Kane, of Bardwell, and R. V. Fletcher, of Chicago, Ill., for appellant.

Ben S. Adams, of Paducah, and R. M. Shelbourne, of Bardwell, for appellee.

DRURY, C. The appellant was defendant below, and has appealed and asked for the reversal of a judgment for $8,100 recovered against it by the appellee as plaintiff below. Buck Dickerson was killed while employed by the defendant, and the circumstances attending his death are so fully described in the opinion rendered in the case of Illinois Central Railroad Co. v. Robert Halterman (Ky.) 271 S. W. 1103, decided on February 24, 1925, that it is not necessary to repeat them here. Neither is it necessary to discuss in this opinion the various alleged errors relied on by appellant, as they are fully disposed of in our opinion in the Halterman Case.

In prosecution for manslaughter, where deceased had been shooting at accused a few moments before killing, and came riding at accused with pistol in hand, cursing him and telling him he was going to kill him, conviction held flagrantly against the evidence.

2. Criminal law 369 (3)—Questions as to how much liquor accused had at time of killing improper.

In prosecution for manslaughter, questions asked accused about how much liquor he had and what he was carrying it in held improper.

3. Criminal law 728 (4)-Exceptions to argument which was outside the record, addressed to court, sufficient.

Where argument of counsel went outside the record, exceptions, addressed to court though not to counsel, should have been sustained, as counsel must keep within the record.

Appeal from Circuit Court, Magoffin County.

Joe Wireman was convicted of manslaughter, and he appeals. Reversed for new trial.

W. R. Prater and H. H. Ramey, both of Salyersville, for appellant.

A. F. Byrd, of Lexington, Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty. Gen., for the Commonwealth.

DRURY, C. [1, 2] Again the appellant has been convicted of manslaughter; his punHowever, the defendant is complaining of ishment this time being fixed at 5 years in

(273 S.W.)

of agreed concert of action among election officers and precinct workers to procure all votes possible for contestees by legal or illegal methods.

4. Elections 227 (8)—Agreement of election officers cannot validate invalid votes.

Ky. St. § 1475 regulates manner of voting by illiterate, blind, and physically disabled persons, and agreement among election officers for rendering unlawful assistance to voters cannot validate their invalid votes. 5. Elections .stated.

the penitentiary. A detailed account of this
homicide is in 203 Ky. 57, 261 S. W. 862. This
case was there reversed for one particular
error; the other errors, including those noted
below, were reserved. The deceased was in
a party with whom appellant had had trouble
a few moments before the homicide, and was
shooting at appellant then. Four witnesses
saw him doing so, another saw him with a
pistol, and still another saw him reloading
his pistol after the affray. Appellant in this
homicide had every reason to believe that he
was in grave danger when deceased came
riding toward him, pistol in hand, cursing
him, and telling him he was going to kill him.
The conviction of appellant is flagrantly
against the evidence. As there was no evi-
dence that the appellant knew or had any
reason to know or believe that the deceased
was a member of a peace officer's posse, in-
struction 2 and 3 should not have been giv-
en under the facts proven on this trial. The
court should have sustained the appellant's
objections to questions asked him by the
commonwealth about how much liquor heity of a vote.
had, what he was carrying it in, etc.
7. Elections

10-Essential

requirements

Essential requirements of valid election are that it be free and equal, that ballot be secret, and that provisions of statutes necessary to effect those ends be observed.

6. Elections 227(1)—Irregularities of election officers and voters, not affecting merits, will not vitiate election.

Mere irregularities of election officers and voters, not affecting merits nor fairness of case, fairness and equality of election, or secrecy of ballot, will not vitiate election or affect valid

227(8)-Assistance to voter in

[3] In their arguments, Mr. Allen and Mr. booth requires rejection of vote. Byrd went outside the record; the appel- Where election officer or other person goes lant without interrupting them, but address-into booth with voter and assists him in stenciling the court and not counsel, took exceptionsing ballot, vote should be rejected whether or to these remarks. The exceptions should not voter is illiterate. have been sustained. Counsel should keep 8. Elections 227 (8)-Marking ballot or within the record. pointing out to voter where to stencil it, unless illiterate, requires rejection.

The judgment is reversed, with directions to award appellant a new trial consistent with this opinion.

MARILLA et al. v. RATTERMAN et al.

HOWELL et al. v. CARRELL et al. CUR-
RY et al. v. MCCANDLESS et al.

(Court of Appeals of Kentucky. June 12, 1925.
Rehearing Denied July 7, 1925.)

1. Elections 295(1)-Conspiracy charge against contestees to secure ineligible votes not sustained.

In election contest, evidence held not to sustain charge of conspiracy in behalf of contestees to cause persons not entitled to vote to be registered as voters.

2. Elections 295(1)—Charge of conspiracy of city administration to secure election of contestees by unlawful means not sustained.

In election contest, evidence held not to sustain charge that members of city administration conspired to secure election of contestees by any unlawful means.

3. Elections 295 (1) - Similarity of illegal

methods in various precincts sufficient to show conspiracy among election officers and precinct workers.

Where election official marks ballot of voter with pen or pencil or points out on ballot where to stencil it, without voter's having sworn that he cannot read or is blind or physically disabled, under Ky. St. § 1475, ballot should be rejected, notwithstanding voter may then go

into booth to stencil ballot.

9. Elections 227 (8)-Stenciling ballot by election officer or another, requires rejection, unless voter is blind or disabled.

Stenciling by officer of election or another, of ballot of voter requires rejection of ballot, unless voter is blind or physically disabled and has taken an oath to that effect, under Ky. St. § 1475.

10. Elections

227 (8)-Ballot stenciled openly by voter must be rejected.

Ballot stenciled openly by voter must be illiterate oath, under Ky. St. § 1475. rejected, notwithstanding voter may have taken

11. Elections 220-Ballot of blind or physically disabled voter may be stenciled openly for him.

Under Ky. St. § 1475, where voter is blind or physically disabled so that he cannot stencil his ballot and he has taken oath to that effect, bal

lot may be lawfully stenciled for him openly. 12. Elections 227(8)-Voluntary exposure of ballot by voter requires rejection.

In election contest, evidence held to show Voluntary exposure by voter of his ballot, a similarity in conduct of election officers repre- so that secrecy is destroyed, requires rejecsenting contestees, tending to prove existence i tion of vote.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes