upon the court itself, which may order another | overpayment. That they were in no sense settlement in which errors in the first may be final orders or judgments clearly appears corrected. (4) They are not conclusive in any from the terms of the statute which provides other court, but are only prima facie evidence, subject to be surcharged and falsified, and they that the certificate shall state "as nearly as operate rather as means of preserving evidence, can be the amount of work done for which to the preservation of which executors and other payment is to be made," and that "when the fiduciaries are entitled, than as judgments. And being made by sworn officers under the super- Work under contract shall have been fully vision of a court, they ought to have, and have completed the state inspector and county always had, the effect of prima facie evidence, road engineer shall prepare a detailed and whether made ex parte or not." itemized statement of the cost of the improvement." We think it is clear, therefore, that the orders of the fiscal court directing the payment of the two partial estimates were not final orders from which appeals should have been taken, and that these statements can be corrected by a cross-bill in this action by the contractor to collect the balance which This language is quoted with approval in Turley's Adm'r v. Barnes, 103 Ky. 131, 44 S. W. 446, 19 Ky. Law Rep. 1808, where it was further said: "While we think it clear that if a party in interest shall file written exceptions to a settlement made by a fiduciary and these exceptions are regularly tried by the county court upon their merits and a judgment entered sustain- he claims is due him. ing or overruling them, the proper remedy to a [2] 2. The principle contended for by appelparty who feels aggrieved is by appeal as pro-lant that the judgment should not have carvided in section 978; yet we do not think that the effect of that statute is to take away from ried the full amount due the contractor, but parties who do not file such exceptions or in any that 5 per cent. should have been retained way contest in the county court the validity of for a period of one year, is sound. Followcharges complained of the right to have such ing the requirements of section 12 of the alleged errors reviewed by a bill in chancery." Again, in Caplinger v. Pritchard, 136 Ky. least 5 per cent. of the price of the work statute, supra, the contract provides that at 353, 124 S. W. 352, where exceptions filed to shall not be paid to the contractor until afa county court settlement by an administra-ter the expiration of one year from the comtor were not considered by the county court, pletion of the work and the acceptance therethis court reaffirmed the rule above announc-of in writing by the commissioner of pubed, saying: "If, however, appellee as administrator still owes the estate on a fair settlement of his accounts, the parties in interest are not without a remedy. An action may be instituted in equity in the circuit court surcharging his settlements, and force him to account for what he owes the estate. The proceedings had in the county and circuit courts are not a bar to such an action, as the issues therein were not tried upon their merits, or at all, as expressly shown by the orders of the county and circuit courts. The rule is well established that when a settlement of a fiduciary is contested in the county court, and that court tries the exceptions on their merits, the remedy of the aggrieved party is by appeal, but not so when there is no trial, and his exceptions are dismissed without a hearing, in the case at bar." See, also, Davis v. Commonwealth, 139 Ky. 334, 107 S. W. 306, 32 Ky. Law Rep. 627, 15 L. R. A. (N. S.) 402, and Commonwealth v. Scarborough, 148 Ky. 561, 147 S. W. 31, to the same effect. We are of opinion, therefore, that the rule above announced should be applied in cases of this character, since the orders of the fiscal court in paying the two partial estimates for work upon the road were, from their very nature, more ministerial than judicial. No exceptions were taken to them by either party, or by taxpayer. They contain no final adjudication or determination in favor of the construction company, or against the county. On the contrary, subsection 15 of the statute, as well as the contract under which the work was done, clearly contemplate that the certificates of the inspector and road engineer are only the usual tentative statements made for the purpose of paying the contractor a part of what is due him as the work lic roads. The purpose of retaining this percentage of the price is to reimburse the county for any hidden defects that might develop within a year after the road was completed. It is evident, however, that the express terms of the statute cannot be applied in this case, since the commissioner of public roads has never accepted the work, and probably will never do so. On the contrary, his refusal to accept the work led to this suit in which the contractor seeks to require the county to pay for the work notwithstanding the failure to accept. It calls upon the court to inspect and accept the work, and by its judgment to declare that it has been performed according to the contract. This it has the right to do, since the court is the constituted arbiter between persons who disagree. If, therefore, it should appear that the contractor has completed his work according to the contract, the judgment of the court determining that fact and the date of its completion will fix the beginning date of the period of one year during which the 5 per cent. may be retained by the county. On the contrary, if the finding should be against the contractor upon the issue of the completion of the work, the chancellor will enter a judgment to fit the case thus ascertained, properly guarding the rights of all parties under the contract. [3] 3. The sufficiency of the answer and counterclaim as originally amended will be considered briefly. The first paragraph of the answer is a traverse of the principal allegations of the petition, while the second paragraph sets up the provisions of the con [5] 5. We are advised by the briefs that the court also rested its ruling, in this respect, upon the ground that the tendered pleading presented a new defense and was not verified, although the record does not show that the pleading was rejected for that reason, or for what reason it was rejected. Section 139 of the Civil Code of Practice reads as follows: per cent. of the contract price for its pro- its discretion. If June 7th was not too late tection. This question has heretofore been to file pleadings, June 4th was not. disposed of, and needs no further consideration. The third paragraph is a counterclaim for damages aggregating $2,540, caused by the contractor's failure to construct the road according to the plans and specifications, using defective material, failing to make a proper grading of the road, using property that belonged to the county without paying therefor, destroying ditches that had theretofore been constructed by the county, and for its failure to complete the work within the time prescribed by the contract. The first amended answer and cross-petition makes the original pleading more specific by charging that the contractor, instead of making 12,625 cubic yards of earth excavation, had made only 5,615 cubic yards, and that, instead of the county owing the contractor the sum of $3,257.94, which it paid for excavations, it really owed the contractor only $1,460.13. The amendment goes into detail as to the macadam work upon the road and other work, showing with precision the sums which the county asserts it paid in excess of what it should have paid, specifically attacking the estimates of November and December, 1915, under which the contractor collected the sums of money above indicated. In addition, the answer challenges the correctness of the final unpaid claim of the contractor for $2,003.31 for work done in the spring of 1916, and for which no cer tificate was ever issued. It will be remembered that this item constitutes the principal portion of the claim which is the basis of this action, and that it was never certified by the road inspector, or paid by the county. Under these circumstances it would seem to be so clearly open to investigation as to need little or no argument in support of the proposition. In our opinion the demurrer to the answer and counterclaim as originally amended was properly overruled, and the circuit court erred in reversing that ruling upon the renewal of the demurrers. [4] 4. On June 4, 1917, defendant tendered a second amended answer, counterclaim, and cross-petition charging fraud against the contractor in the construction of the road and in collecting the partial payments therefor, specifying in detail the acts constituting the alleged fraud. There could have been no reasonable objection to the pleading for the want of substance, and the circuit court refused to permit it to be filed seemingly for the reason that it came too late. It was, however, tendered on June 4th, and the motion to file it was not overruled until June 7th. Thereafter, on the same day, the plaintiff filed a demurrer to the first amended answer and a reply to the original answer and counterclaim, and the court immediately sustained the demurrer, and entered judgment for the plaintiff. In this the court abused "Courts may, in their discretion, permit the amendments authorized by this chapter to be made without being verified, unless a new and distinct cause of action or defense be thereby introduced." Where the objection to the filing of a pleading is based upon its want of verification, that fact should be made plain in the record, and, unless it does appear that the pleading was rejected for want of verification, the failure to verify will not, upon appeal, be treated as a sufficient ground for its rejection. Lebus v. Poindexter, 38 S. W. 9, 18 Ky. Law Rep. 740. Judgment reversed and action remanded for further proceedings, not inconsistent with this opinion. 144 — Where an administrator with the will annexed purchased at a judicial sale in settlement of joint estates certain property which testator had jointly owned, and took the title to himself as administrator, a sale thereafter made by him was not a sale under the will. 3. EXECUTORS AND ADMINISTRATORS PURCHASES OF PROPERTY-TRUSTS. Where the administrator with will annexed bought property at a judicial sale in which the testator had been jointly interested, and took title in his own name as administrator, he held in trust for the children of testator. 4. INFANTS 37-SALES OF PROPERTY. Where administrator with will annexed held land as trustee for use and benefit of infant children, they could not be divested of their title by a sale made by him in any other manner than as pointed out in Civ. Code Prac. §§ 489-498, regulating sale of real property of persons under disability. 5. INFANTS 40-SALE OF PROPERTY-RATI FICATION. Where testator's heirs, who had become of age, accepted their distributive shares after settlement of accounts of an administrator with will annexed, which included proceeds from sale the proceeds rather than the land if they then of land, they elected to take their interest in knew that the moneys accepted included such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes proceeds, or that the administrator had charged himself therewith. 6. INFANTS 40-SALE OF PROPERTY-RATI FICATION. Where heirs of testator, after becoming of age, accepted distributive shares of proceeds of sale of land in ignorance of the fact that the money included such proceeds, there was no election of such date, though the statute of limitations began to run, and they would be barred of their right to recover the property within 10 years from the date of their acceptance of such share. 7. INFANTS 40-SALE OF PROPERTY-RATIFICATION. Mere constructive knowledge on the part of heirs that distributive shares accepted included proceeds of realty sold by the administrator with the will annexed did not charge them with an election to accept such proceeds. S. INFANTS 40-RATIFICATION-VOID CON TRACT. Principle of ratification and estoppel of an infant concerning a sale of land applies as well to sales which are void as to those which are merely voidable. 9. INFANTS 40 - LIMITATION OF ACTIONS 39(12)—RATIFICATION-VOID CONTRACT. Where the land of the infant is sold and conveyed without authority during his infancy, and he accepts the proceeds of the sale after reaching his majority, and after having actual knowledge of the facts, he will, by this act of affirmance, be thereafter estopped to recover the land from the purchaser, and whether he accepted the proceeds with actual knowledge of the facts or not, he will, under Ky. St. § 2522, relating to actions not otherwise provided for, be barred after the expiration of 10 years from the acceptance from bringing an action to recover the land. 10. EXECUTORS AND ADMINISTRATORS CONCLUSIVENESS 513 IN After administrator with will annexed made settlement in county court, a judgment in a second suit in the circuit court to confirm the settlement was conclusive upon the heirs only if the pleadings, exhibits, or evidence therein fully disclosed the facts, although some of the children were infants, since a judgment duly and regularly entered is as binding upon infants as upon adults subject to the remedies allowed infants. Appeal from Circuit Court, Kenton County. Suit by Norbert Schlickman and others against Herman Dusing and others. Decree dismissing the petition, and complainants appeal. Reversed. John L. Rich and W. E. Tyler, both of Covington, for appellants. S. D. Rouse and H. C. Theissen, both of Covington, for appellees. CARROLL, J. In 1894 William Schlickaan died testate, a resident of Kenton County, leaving surviving him the following children: Emma 20 years of age, Henry 18, Leo 16, Clara 13, William 11, Mary 7, Frederick 5, Marguarette 3, and Norbert 2 years of age. In his will he devised his estate to his children share and share alike. He appointed Fred Pieper executor and also guardian of his infant and unmarried children, all of them being infants and unmarried except Emma who had married John Dorsel; and the fifth clause reads as follows: "Fifth. I hereby nominate as executor of this my will the said Fred Pieper and ask that he be allowed to qualify and act as such without giving bond and I hereby fully authorize and empower him as my executor to do any and all things concerning my estate that I could do if living, leaving it to his judgment and discretion as to how he shall manage the same or carry on my business and giving to him full power and authority to sell and convey any or all of my real estate when in his judgment it may be desirable to do so, and the devise to my children herein is especially subject to the power thus vested in my said executor that is the devise to them is in no way to be construed as a limitation on the power of said executor to sell and convey by deed said real estate as to carry on said business." Fred Fieper, who had been nominated executor and guardian and had qualified as such, discharged the duties of these offices until April, 1899, when he resigned, and John H. Dorsel, who had married Emma Schlickman, was appointed administrator of the estate with the will annexed and also guardian of the infant children. It also appears that the testator and one Daniel Ruttle were the joint owners of some real estate, and after the death of Ruttle, in a suit to settle these estates, this jointly owned land was sold under decree of court, and at the sale made in 1901 John H. Dorsel became the purchaser, and out of assets of the Schlickman estate he paid to the Ruttle heirs their share, one-half of the proceeds of the sale, and in February, 1902, a deed was made by the court to Dorsel conveying the land to him as administrator with the will annexed of William Schlickman. Within a few days after the property had been thus conveyed to Dorsel, he privately sold and conveyed the same to the appellee Dusing for $6,750, with which amount Dorsel charged himself as administrator with the will annexed. After this, John Dorsel, as administrator, settled his accounts in the Kenton county court, and in this settlement was charged with the $6,750. Subsequently he brought a suit in the Kenton circuit court for a settlement of the estate of William Schlickman, and in this suit all of the Schlickman children were made parties and properly This settlement brought before the court. suit progressed to a judgment, and the ac counts of Dorsel, as administrator, finally confirmed by the Kenton circuit court in 1911. were Nothing further was done in respect to any matters connected with the estate until 1915, when this suit was brought by the children of William Schlickman, except Emma, against Dusing to recover the property sold to him by Dorsel and damages for its detention, upon the ground that the sale by Dorsel to Dusing was void, and this being so they were the owners of the property and entitled to its possession. This suit in its beginning was a common-law action in ejectment, but finally got into equity, and a num ber of issues presented in many amended and be responsible in like manner, as the expleadings were brought into it. Upon submis-ecutors herein named, or any of them." sion the lower court dismissed the petition and the children `appeal. It is admitted that Dorsel in 1899 qualified as administrator with the will annexed and as guardian of the infant children of Schlickman; that he purchased the Ruttle-Schlickman real estate heretofore mentioned while he was acting as administrator and guardian, and that it was conveyed to him as administrator with the will annexed; that he paid the Ruttle heirs for their interest in the estate out of money in his hands as administrator of the Schlickman estate; that he sold this real estate in 1902 to Dusing for $6,750; that in August, 1902, he made an ex parte settlement of his accounts as administrator in the Kenton county court, and in this settlement was charged with the proceeds of the real estate received from Dusing; and that these proceeds were subsequently distributed to or accounted for to the Schlickman children. On these facts, it is the contention of the Schlickman children, who brought this suit, that Dorsel purchased and held this land as trustee for their use and benefit; that the children who were infants at the time could not be and were not divested of their title to the land by the sale made to Dusing, although it should be admitted that they subsequently received their share of the proceeds of the sale; that the infant children could not be divested of their title to this land owned by them and held in trust for their use and benefit by Dorsel, except by and through a suit brought in the manner provided in the Civil Code for the sale of infants' real estate, and so the sale made by Dorsel to Dusing was void. On the other hand, the argument is made in behalf of Dorsel and Dusing, first, that Dorsel, as administrator with the will annexed, had the right, under the power conferred on his executor by the will of Schlickman, to sell the land and pass good title thereto; and, second, that if he did not have this authority, the children of Schlickman who received after their majority their share of the proceeds of the real estate sold to Dusing and retained possession of the same are barred from seeking to recover the real estate, and this upon the ground that after their majority they had the right of election, and having elected to take the proceeds they are now estopped to recover the property itself. But it has been frequently held that this statutory provision does not, in all cases, confer upon an administrator with the will annexed all the power and authority confided by a testator to his executor, and that whether an administrator with the will annexed can exercise all, the power confided to an executor depends upon the nature of the power confided to the executor and the manner of its execution as described by the testator in delegating the power. [2] A more extended discussion of this feature of the case seems unnecessary, because it was virtually decided in the case of Schlickman v. Citizens' National Bank, 139 Ky. 268, 129 S. W. 823, 29 L. R. A. (N. S.) 264, where the court had before it for construction the fifth clause of the will here in question, that Dorsel, as administrator with the will annexed, did not have the power confided to the executor. In the opinion in that case, and the authorities therein referred to, there will be found a statement distinguishing the power that an administrator with the will annexed may exercise from those that he may not exercise. In addition to this, it would seem that when Dorsel bought this property at the judicial sale and took the title to himself as administrator, the sale of it thereafter made by him was not a sale made under any supposed authority found in the will of Schlickman, because the sale under the decree took the estate from under the will, and thereafter it could not be subject to its provisions. [3] Having this view of the matter, we are further of the opinion that Dorsel held this property as trustee for the use and benefit of the Schlickman children, who were the real and beneficial owners of the property. In support of this proposition that is thoroughly well established, the court said, in Charles v. Daniels, 140 Ky. 379, 131 S. W. 42, in considering how Mary Daniels held the title to infants' land bought by her at a time when she was acting as administratrix of the estate in which the land was sold and as guardian of the infants, that: infant children and the administratrix of her "Mary Daniels being both the guardian of her husband's estate cannot be permitted to buy in the settlement suit which she brought as administratrix, her husband's land and hold it in her own right. It has been often held that a purchase by an administratrix or guardian under such circumstances inures for the benefit of the beneficiaries of the estate, and that the purchaser holds the property as trustee for them." To the same effect is Conrad v. Conrad, 152 Ky. 422, 153 S. W. 740; Clay v. Thomas, 178 Ky. 199, 198 S. W. 762. [1] On the question as to the right of Dorsel, as administrator of the will annexed, to sell the property to Dusing, we are of the [4] It thus appearing that Dorsel held opinion that he did not have such authority this property as trustee for the use and beneunder the will of Schlickman. It is provided fit of the infant children, they could not be in section 3892 of the Kentucky Statutes that: "An administrator, with the will annexed, shall possess and exercise all power and author ity, and shall have the same rights and interest, divested of their title by a sale made by him, or by a sale made in any other manner than as pointed out in the provision of the Civil Code, §§ 489-498, regulating the sale of real property of persons under disability. that a part of it made up of the proceeds of It has been so frequently and consistently this property, or if they did not know that held that the real estate of infants, whether the administrator had charged himself with the title be vested in them, or held by some one as trustee for their use and benefit, cannot be sold except as provided in these Code provisions, that we need not do more than refer to some of the cases on this subject. Walker v. Smyser, 80 Ky. .620; Elliott v. Fowler, 112 Ky. 376, 65 S. W. 849, 23 Ky. Law Rep. 1676; Carpenter v. Moorelock, 151 Ky. 506, 152 S. W. 575; Hulsewede v. Churchman, 111 Ky. 51, 63 S. W. 1, 23 Ky. Law Rep. 487. Assuming, then, that the infants were not divested of their title to this property under the sale made by Dorsel to Dusing, another question in the case is the effect of the county court settlement made by Dorsel in which he accounted for the proceeds of this property and the acceptance by the children of their share thereof. In other words, are the children of Schlickman who were of age when this settlement was made, and who accepted their share of the proceeds of this property with which Dorsel, as administrator, had charged himself, and also the children who were then infants, but who thereafter, upon their arrival at age, accepted their share of the proceeds of this property, estopped to maintain a suit to recover the property, and, if so, when did this estoppel arise? Did it arise at the time they accepted, after reaching their majority, the proceeds of this sale, or was the estoppel postponed, and, if so, to what time? When this county court settlement was made, leaving out of consideration Emma, who did not join in this suit, Henry was 26, Leo 24, Clara 21, William 19, Mary 15, Frederick 13, Marguarette 11, and Norbert 10, and when this suit was brought in 1915, Henry was 39, Leo 37, Clara 34, William 32, Mary 28, Frederick 26, Marguarette 24, and Norbert 23. It will thus be seen that Henry, Leo, and Clara were of age when the settlement was made, and that Henry reached his majority 18 years before this suit was brought, Leo 16 years, Clara 13, William 11, Mary 7, Frederick 5, Marguarette 3, and Norbert 2. the proceeds, then, and in either of these events, their acceptance of their distributable share, although a part of it may have been the proceeds of this property, did not at the time of their acceptance amount to an election on their part to take the proceeds in place of the property; but, although their acceptance of their share without knowledge of the fact that a part of it was the proceeds of this property, or without knowledge of the fact that the administrator had charged himself with the proceeds of the property, would not in itself and as of that time amount to such an election as would bind them, it started the statute of limitation in motion, and they would be barred of their right to recover the property within 10 years from the date of their acceptance of their distributable share. And the principle we have announced applies to each of the children who accepted, in whole or in part, their distributable share of the estate after they became 21 years of age. [7] We do not, however, mean to say that mere constructive knowledge on the part of these children of the facts set out in the ex parte county court settlement would be sufficient to charge them, after they became of age, and when they accepted their shares, with notice that the share of the estate they were receiving was composed in part of the proceeds of this property, or that the administrator had charged himself with the proceeds. We think that in a case like this, where there has been a void sale of infants' property, it is essential, in order to charge the infant with ratifying the sale by electing, after he has arrived at age, to take the proceeds in place of the property, that he should have actual notice of all the material facts connected with the transaction, and that in the absence of such notice he should have, after accepting his share, 10 years in which to make his election in order to be bound by his act in accepting the proceeds. It has been frequently held by this court. that an infant who attempts to convey his land, and who has received the proceeds, [5] In respect to the effect of the accept- will be barred after the expiration of 10 ance by the children after they became of age of their share of the proceeds of this years from his majority of his right to reproperty that was accounted for and charged cover the property. A case in point is Hofto Dorsel, as administrator, in his county fert v. Miller, 86 Ky. 572, 6 S. W. 447, 9 Ky. court settlement, we are of the opinion that Law Rep. 732. In that case it appears from this amounted to an election on their part the opinion that infants who had sold and to take their interest in the proceeds in conveyed land and received the purchase place of their interest in the property; pro- price sought to recover it after their mavided that, at the time they accepted their jority, and the court, holding that as more distributable part of this settlement, they knew that the proceeds of this property constituted a part of the proceeds they received, or knew that the administrator had charged himself with the proceeds of this property. [6] If, however, they did not know, at the than 10 years had elapsed between the date of their majority and the bringing of the suit they were barred by the 10-year statute, which was the same as section 2522 of the Kentucky Statutes, reading: "An action for relief not provided for in this |