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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 work under contract shall have been fully 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 improveThis language is quoted with approval in ment.” We think it is clear, therefore, that Turley's Adm'r v. Barnes, 103 Ky. 131, 44 S. the orders of the fiscal court directing the W. 446, 19 Ky. Law Rep. 1808, where it was payment of the two partial estimates were further said:

not final orders from which appeals should “While we think it clear that if a party in in- have been taken, and that these statements terest shall file written exceptions to a settle can be corrected by a cross-bill in this action ment made by a fiduciary and these exceptions are regularly tried by the county court upon by the contractor to collect the balance which 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. Followalleged errors reviewed by a bili in chancery." ing the requirements of section 12 of the

" 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 af

. a 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- 1 of in writing by the commissioner of pubed, saying:

lic roads. The purpose of retaining this per"If, however, appellee as administrator still owes the estate on a fair settlement of his ac- centage of the price is to reimburse the counts, the parties in interest are not without a county for any hidden defects that might remedy. An action may be instituted in equity develop within a year after the road was in the circuit court surcharging his settlements, completed. It is evident, however, that the estate. The proceedings had in the county and express terms of the statute cannot be apcircuit courts are not a bar to such an action, plied in this case, since the commissioner of as the issues therein were not tried upon their public roads has never accepted the work, merits, or at all, as expressly shown by the and probably will never do so. On the conorders of the county and circuit courts. The rule is well established that when a settlement trary, his refusal to accept the work led of a fiduciary is contested in the county court, to this suit in which the contractor seeks to and that court tries the exceptions on their require the county to pay for the work notmerits, the remedy of the aggrieved party is by withstanding the failure to accept. It calls appeal, but not so when there is no trial, and his exceptions are dismissed without a hearing upon the court to inspect and accept the in the case at bar.”

work, and by its judgment to declare that it See, also, Davis v. Commonwealth, 139 Ky. has been performed according to the contract. 334, 107 S. W. 306, 32 Ky. Law Rep. 627, 15 This it has the right to do, since the court L. R. A. (N. S.) 402, and Commonwealth v. is the constituted arbiter between persons Scarborough, 148 Ky. 561, 147 S. W. 31, to who disagree. If, therefore, it should appear the same effect.

that the contractor has completed his work We are of opinion, therefore, that the rule according to the contract, the judgment of above announced should be applied in cases the court determining that fact and the date of this character, since the orders of the fis- of its completion will fix the beginning date cal court in paying the two partial estimates of the period of one year during which the for work upon the road were, from their 5 per cent. may be retained by the county. very nature, more ministerial than judicial. On the contrary, if the finding should be No exceptions were taken to them by either against the contractor upon the issue of the party, or by taxpayer. They contain no final completion of the work, the chancellor will adjudication or determination in favor of the enter a judgment to fit the case thus ascerconstruction company, or against the county. tained, properly guarding the rights of all On the contrary, subsection 15 of the stat- parties under the contract. ute, as well as the contract under which the [3] 3. The sufficiency of the answer and work was done, clearly contemplate that the counterclaim as originally amended will be certificates of the inspector and road engi- considered briefly. The first paragraph of neer are only the usual tentative statements the answer is a traverse of the principal almade for the purpose of paying the contrac- legations of the petition, while the second tor a part of what is due him as the work paragraph sets up the provisions of the conper 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 considera- [5] 5. We are advised by the briefs that tion. The third paragraph is a counterclaim tñe court also rested its ruling, in this refor damages aggregating $2,540, caused by spect, upon the ground that the tendered the contractor's failure to construct the road pleading presented a new defense and was according to the plans and specifications, us- not verified, although the record does not ing defective material, failing to make a show that the pleading was rejected for that proper grading of the road, using property reason, or for what reason it was rejected. that belonged to the county without paying Section 139 of the Civil Code of Practice therefor, destroying ditches that had there- reads as follows: tofore been constructed by the county, ar "Courts may, in their discretion, permit the for its failure to complete the work within amendments authorized by this chapter to be the time prescribed by the contract.

made without being verified, unless a new and

distinct cause of action or defense be thereby The first amended answer and cross-peti- introduced.” tion makes the original pleading more spe- Where the objection to the filing of a cific by charging that the contractor, instead pleading is based upon its want of verificaof making 12,625 cubic yards of earth exca- tion, that fact should be made plain in the vation, had made only 5,615 cubic yards, record, and, unless it does appear that the and that, instead of the county owing the pleading was rejected for want of verificacontractor the sum of $3,257.94, which it tion, the failure to verify will not, upon appaid for excavations, it really owed the con- peal, be treated as a sufficient ground for its tractor only $1,460.13. The amendment goes rejection. Lepus v. Poindexter, 38 S. W. 9, into detail as to the macadam work upon the 18 Ky. Law Rep. 740. road and other work, showing with preci- Judgment reversed and action remanded sion the sums which the county asserts it for further proceedings, not inconsistent paid in excess of what it should have paid, with this opinion. specifically attacking the estimates of November and December, 1915, under which the contractor collected the sums of money above

(180 Ky. 506) indicated. In addition, the answer challeng

SCHLICKMAN et al. v. DUSING et al. * es the correctness of the final unpaid claim (Court of Appeals of Kentucky. May 14, 1918.) of the contractor for $2,003.31 for work done

1. EXECUTORS AND ADMINISTRATORS Om 121(2) in the spring of 1916, and for which no cer

ADMINISTRATOR WITH WILL ANNEXED tificate was ever issued. It will be remem- POWERS. bered that this item constitutes the princi- Ky. St. § 3892, authorizing administrator pal portion of the claim which is the basis with will annexed to exercise powers of execu

tors, gives the administrator only such powers of this action, and that it was never certi- as the executor exercised as such, and a will fied by the road inspector, or paid by the authorizing the executor to sell lands did not county. Under these circumstances it would confer such authority on the administrator with seem to be so clearly open to investigation the will annexed. as to need little or no argument in support 2. EXECUTORS AND ADMINISTRATORS Eww121(2)

-PURCHASES OF PROPERTY. of the proposition. In our opinion the demur

Where an administrator with the will anrer to the answer and counterclaim as orig-nexed purchased at a judicial sale in settlement inally amended was properly overruled, and of joint estates certain property which testator the circuit court erred in reversing that rul- had jointly owned, and took the title to himself

as administrator, a sale thereafter made by him ing upon the renewal of the demurrers. was not a sale under the will.

[4] 4. On June 4, 1917, defendant tendered 3. EXECUTORS AND ADMINISTRATORS Ow144 a second amended answer, counterclaim, and PURCHASES OF PROPERTY-TRUSTS. cross-petition charging fraud against the con- bought property at a judicial sale in which the

Where the administrator with will annexed tractor in the construction of the road and in testator had been jointly interested, and took collecting the partial payments therefor, spec- title in his own name as administrator, he held ifying in detail the acts constituting the al- in trust for the children of testator. leged fraud. There could have been no rea

4. INFANTS Om 37-SALES OF PROPERTY.

Where administrator with will annexed held sonable objection to the pleading for the land as trustee for use and benefit of infant want of substance, and the circuit court re- children, they could not be divested of their title fused to permit it to be filed seemingly for by a sale made by him in any other manner than

as pointed out in Civ. Code Prac. 88 489–498, the reason that it came too late.

It was, regulating sale of real property of persons under however, tendered on June 4th, and the mo- disability. tion to file it was not overruled until June 5. INFANTS 40—SALE OF PROPERTY-RATI

FICATION. 7th. Thereafter, on the same day, the plain

Where testator's heirs, who had become of tiff filed a demurrer to the first amended an- age, accepted their distributive shares after setswer and a reply to the original answer and tlement of accounts of an administrator with counterclaim, and the court immediately sus- will annexed, which included proceeds from sale tained the demurrer, and entered judgment the proceeds rather than the land if they then

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of land, they elected to take their interest in for the plaintiff. In this the court abused I knew that the moneys accepted included such

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

*Rehearing denied June 21, 1918.

proceeds, or that the administrator had charged "Fifth. I hereby nominate as executor of this himself therewith.

my will the said Fred Pieper and ask that he 6. INFANTS 40-SALE OF PROPERTY-RATI. be allowed to qualify and act as such without FICATION

giving bond and I hereby fully authorize and Where heirs of testator, after becoming of empower him as my executor to do any and all age, accepted distributive shares of proceeds of things concerning my estate that I could do if sale of land in ignorance of the fact that the living, leaving it to his judgment and discretion money included such proceeds, there was no as to how he shall manage the same or carry election of such date, though the statute of limi- on my business and giving to him full power and tations began to run, and they would be barred authority to sell and convey any or all of my of their right to recover the property within 10 real estate when in his judgment it may be deyears from the date of their acceptance of such sirable to do so, and the devise to my children share.

herein is especially subject to the power thus 7. INFANTS 40—SALE OF PROPERTY-RATI- vested in my said executor that is the devise

to them is in no way to be construed as a limitaFICATION.

Mere constructive knowledge on the part of tion on the power of said executor to sell and heirs that distributive shares accepted included convey by deed said real estate as to carry on

said business. proceeds of realty sold by the administrator with the will annexed did not charge them with an Fred Fieper, who had been nominated exelection to accept such proceeds.

ecutor and guardian and had qualified as 8. INFANTS ww40–RATIFICATION-VOID Con- such, discharged the duties of these offices TRACT.

Principle of ratification and estoppel of an until April, 1899, when he resigned, and infant concerning a sale of land applies as well John H. Dorsel, who had married Emma to sales which are void as to those which are Schlickmàn, was appointed administrator of merely voidable.

the estate with the will annexed and also 9. INFANTS ww40 – LIMITATION OF ACTIONS guardian of the infant children. On 39(12)—RATIFICATION-VOID CONTRACT.

Where the land of the infant. is sold and It also appears that the testator and one conveyed without authority during his infancy, Daniel Ruttle were the joint owners of some and he accepts the proceeds of the sale after real estate, and after the death of Ruttle, reaching his majority, and after having actual knowledge of the facts, he will, by this act of in a suit to settle these estates, this jointly affirmance, be thereafter estopped to recover the owned land was sold under decree of court, land from the purchaser, and whether he ac- and at the sale made in 1901 John H. Dorsel cepted the proceeds with actual knowledge of became the purchaser, and out of assets of the facts or not, he will, under Ky. St. § 2522, relating to actions not otherwise provided for the Schlickman estate he paid to the Ruttle be barred after the expiration of 10 years from heirs their share, one-half of the proceeds the acceptance from bringing an action to re- of the sale, and in February, 1902, a deed cover the land.

was made by the court to Dorsel conveying 10. EXECUTORS AND ADMINISTRATORS Ew513 the land to him as administrator with the

(9) — SETTLEMENT - CONCLUSIVENESS INFANTS.

will annexed of William Schlickman. Within After administrator with will annexed made a few days after the property had been thus settlement in county court, a judgment in a conveyed to Dorsel, he privately sold and second suit in the circuit court to confirm the settlement was conclusive upon the heirs only if conveyed the same to the appellee Dusing the pleadings, exhibits, or evidence therein fully for $6,750, with which amount Dorsel charged disclosed the facts, although some of the chil- himself as administrator with the will andren were infants, since a judgment duly and nexed. After this, John Dorsel, as adminisregularly entered is as binding upon infants as upon adults subject to the remedies allowed in-trator, settled his accounts in the Kenton fants.

county court, and in this settlement was Appeal from Circuit Court, Kenton County. charged with the $6,750. Subsequently he

Suit by Norbert Schlickman and others brought a suit in the Kenton circuit court against Herman Dusing and others. Decree for a settlement of the estate of William dismissing the petition, and complainants Schlickman, and in this suit all of the Schlickappeal, Reversed.

man children were made parties and properly

This settlement John L. Rich and W. E. Tyler, both of Cov- brought before the court. ington, for appellants. S. D. Rouse and h. suit progressed to a judgment, and the acC. Theissen, both of Covington, for appellees. counts of Dorsel, as administrator, were

finally confirmed by the Kenton circuit court CARROLL, J. In 1894 William Schlick- in 1911. wan died testate, a resident of Kenton

Nothing further was done in respect to county, leaving surviving him the following any matters connected with the estate until children: Emma 20 years of age, Henry 18, 1915, when this suit was brought by the chilLeo 16, Clara 13, William 11, Mary 7, Fred-dren of William Schlickman, except Emma, erick 5, Marguarette 3, and Norbert 2 years against Dusing to recover the property sold of age. In his will he devised his estate to to him by Dorsel and damages for its detenhis children share and share alike. He ap- tion, upon the ground that the sale by Dorpointed Fred Pieper executor and also guard-sel to Dusing was void, and this being so lan of his infant and unmarried children, they were the owners of the property and all of them being infants and unmarried ex. entitled to its possession. This suit in its cept Emma who had married John Dorsei ; beginning was a common-law action in ejectand the fifth clause reads as follows:

ment, but finally got into equity, and a num

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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 But it has been frequently held that this and the children 'appeal.

statutory provision does not, in all cases, conIt is admitted that Dorsel in 1899 qualified fer upon an administrator with the will anas administrator with the will annexed and nexed all the power and authority confided as guardian of the infant children of Schlick- by a testator to his executor, and that whethman; that he purchased the Ruttle-Schlick- er an administrator with the will annexed man real estate heretofore mentioned while can exercise all, the power confided to an exhe was acting as administrator and guardian, ecutor depends upon the nature of the power and that it was conveyed to him as adminis- confided to the executor and the manner of trator with the will annexed; that he paid its execution as described by the testator in the Ruttle heirs for their interest in the es- delegating the power.

[2] A more extended discussion of this tate out of money in his hands as administrator of the Schlickman estate; that he feature of the case seems unnecessary, besold this real estate in 1902 to Dusing for cause it was virtually decided in the case of $6,750; that in August, 1902, he made an ex Schlickman v. Citizens' National Bank, 139 parte settlement of his accounts as adminis-Ky. 268, 129 S. W. 823, 29 L. R. A. (N. S.) trator in the Kenton county court, and in 264, where the court had before it for conthis settlement was charged with the pro-struction the fifth clause of the will here in ceeds of the real estate received from Dus- question, that Dorsel, as administrator with

the will annexed, did not have the power coning; and that these proceeds were subse- fided to the executor. In the opinion in that quently distributed to or accounted for to the

case, and the authorities therein referred to, Schlickman children. On these facts, it is there will be found a statement distinguishthe contention of the Schlickman children, ing the power that an administrator with who brought this suit, that Dorsel purchased the will annexed may exercise from those and held this land as trustee for their use that he may not exercise. In addition to and benefit; that the children who were in this, it would seem that when Dorsel bought fants at the time could not be and were not this property at the judicial sale and took divested of their title to the land by the the title to himself as administrator, the sale sale made to Dusing, although it should be of it thereafter made by him was not a sale admitted that they subsequently received made under any supposed authority found in their share of the proceeds of the sale; that the will of Schlickman, because the sale unthe infant children could not be divested of der the decree took the estate from under the their title to this land owned by them and will, and thereafter it could not be subject held in trust for their use and benefit by to its provisions. Dorsel, except by and through a suit brought [3] Having this view of the matter, we are in the manner provided in the Civil Code for further of the opinion that Dorsel held this the sale of infants' real estate, and so the property as trustee for the use and benefit sale made by Dorsel to Dusing was void. (of the Schlickman children, who were the

On the other hand, the argument is made real and beneficial owners of the property. in behalf of Dorsel and Dusing, first, that In support of this proposition that is thorDorsel, as administrator with the will an- oughly well established, the court said, in nexed, had the right, under the power con- Charles v. Daniels, 140 Ky. 379, 131 S. W. 42, ferred on his exeoutor by the will of Schlick-in considering how Mary Daniels held the man, to sell the land and pass good title there-title to infants' land bought by her at a time to; and, second, that if he did not have this when she was acting as administratrix of authority, the children of Schlickman who the estate in which the land was sold and received after their majority their share of as guardian of the infants, that: the proceeds of the real estate sold to Dus-infant children and the administratrix of her

"Mary Daniels being both the guardian of her ing and retained possession of the same are husband's estate cannot be permitted to buy in barred from seeking to recover the real es- the settlement suit which she brought as adtate, and this upon the ground that after ministratrix, her husband's land and hold it in their majority they had the right of election, purchase by an administratrix or guardian un

her own right. It has been often held that a and having elected to take the proceeds they der such circumstances inures for the benefit of are now estopped to recover the property the beneficiaries of the estate, and that the pur

chaser holds the property as trustee for them." itself.

To the same effect is Conrad v. Conrad, 152 Ky. [1] On the question as to the right of Dor-422, 153 S. W. 740; Clay v. Thomas, 178 Ky. sel, as administrator of the will annexed, to 199, 198 S. W. 762. 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 divested of their title by a sale made by that: "An administrator, with the will annexed. him, or by a sale made in any other manner

, shall possess and exercise all power and author-than as pointed out in the provision of the ity, and shall have the same rights and interest, Civil Code, 88 489-498, 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 the proceeds, then, and in either of these one as trustee for their use and benefit, can- events, their acceptance of their distribunot be sold except as provided in these Code table share, although a part of it may have provisions, that we need not do more than been the proceeds of this property, did not refer to some of the cases on this subject. at the time of their acceptance amount to Walker V. Smyser, 80 Ky..620; Elliott v. an election on their part to take the proFowler, 112 Ky. 376, 65 S. W. 849, 23 Ky.ceeds in place of the property; but, although Law Rep. 1676; Carpenter V. Moorelock, their acceptance of their share without 151 Ky. 506, 152 S. W. 575; Hulsewede v. knowledge of the fact that a part of it was Churchman, 111 Ky. 51, 63 S. W. 1, 23 Ky. the proceeds of this property, or without Law Rep. 487.

knowledge of the fact that the administraAssuming, then, that the infants were not tor had charged himself with the proceeds divested of their title to this property under of the property, would not in itself and as the sale made by Dorsel to Dusing, another of that time amount to such an election as question in the case is the effect of the coun-would bind them, it started the statute of ty court settlement made by Dorsel in which limitation in motion, and they would be he accounted for the proceeds of this prop- barred of their right to recover the property erty and the acceptance by the children of within 10 years from the date of their actheir share thereof. In other words, are the ceptance of their distributable share. And children of Schlickman who were of age the principle we have announced applies to when this settlement was made, and who each of the children who accepted, in whole accepted their share of the proceeds of this or in part, their distributable share of the property with which Dorsel, as administra estate after they became 21 years of age. tor, had charged himself, and also the chil.

[7] We do not, however, mean to say that dren who were then infants, but who there- mere constructive knowledge on the part of after, upon their arrival at age, accepted these children of the facts set out in the ex their share of the proceeds of this property, parte county court settlement would be suffiestopped to maintain a suit to recover the cient to charge them, after they became of property, and, if so, when did this estoppel age, and when they accepted their shares, arise? Did it arise at the time they accept- with notice that the share of the estate ed, after reaching their majority, the pro- they were receiving was composed in part ceeds of this sale, or was the estoppel post of the proceeds of this property, or that the poned, and, if so, to what time? When this administrator had charged himself with the county court settlement was made, leaving proceeds. We think that in a case like this, out of consideration Emma, who did not where there has been a void sale of infants' join in this suit, Henry was 26, Leo 24, property, it is essential, in order to charge Clara 21, William 19, Mary 15, Frederick the infant with ratifying the sale by elect13, Marguarette 11, and Norbert 10, and ing, after he has arrived at age, to take the when this suit was brought in 1915, Henry proceeds in place of the property, that he was 39, Leo 37, Clara 34, William 32, Mary should have actual notice of all the material 28, Frederick 26, Marguarette 24, and Nor-facts connected with the transaction, and bert 23. It will thus be seen that Henry, that in the absence of such notice he should Leo, and Clara were of age when the settle-have, after accepting his share, 10 years in ment was made, and that Henry reached his which to make his election in order to be majority 18 years before this suit was bound by his act in accepting the proceeds. brought, Leo 16 years, Clara 13, William 11,

It has been frequently held by this court Mary 7, Frederick 5, Marguarette 3, and that an infant who attempts to convey his Norbert 2.

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 than 10 years had elapsed between the date knew that the proceeds of this property con- of their majority and the bringing of the stituted a part of the proceeds they received, suit they were barred by the 10-year statute, or knew that the administrator had charged which was the same as section 2522 of the himself with the proceeds of this property. Kentucky Statutes, reading: [6] If, however, they did not know, at the

"An action for relief not provided for in this

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