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requirement concerning the repair of the that the case was improperly revived and the street for 5 years by the contractor affect refusal of the court to permit a recovery the lien against the abutting property. In either against plaintiff or the city upon the construing the sections of the statute, supra, counterclaim. the court in the Lindsey Case said:

[2] What we have heretofore said is suffi"It will thus be seen that by the statute the cient to show that the suit was properly rework must be performed under the supervi- vived against the heirs of the original desion of the mayor and engineer, and subject to fendant. The insistence that it should have the acceptance of the council ;' that when the council shall have passed an ordinance, and been revived against her administrator is made a contract pursuant to it, and shall have without merit, since no personal judgment received the work as done according to contract, could be obtained against the owner of the then the liability of the owners of the property abutting property in cases like this, nor was chargeable with the cost shall be fixed, and in such cases the defendant shall not be allowed any attempted to be rendered. to make the defense that the work was not done [3] Briefly considering the objections to according to contract, as against the plaintiff the disallowance of the counterclaim, it is in the action, but that the court trying the case the settled policy of the law generally, and shall have the power to correct any mistake or error of the city engineer, or of the common which prevails with this court, that in this council, so as to do complete justice to all par- character of case the municipality, although ties."

it might be liable for damages in an indeThe court then refers to the cases of Glea- pendent suit, as we shall see, cannot be made son v. Barnett, 106 Ky. 125, 50 S. W. 67, to respond in such damages upon a cross-peOrth v. Park, 117 Ky. 779, 79 S. W. 206, 80 tition or counterclaim in a suit like this, S. W. 1108, 81 S. W. 251, 25 Ky. Làw Rep. brought for the purpose of enforcing the lien 1910, 26 Ky. Law Rep. 184, 342, and Linden- against the abutting property for the price berger Land Co. v. Park, 85 S. W. 213, 27 Ky. of the improvement. The reason assigned Law Rep. 437, and then adds:

by the law for disallowing damages as a de“The case falls within the rule thus laid down. fense in this character of proceeding is that The provision in section 3453, that in such cas- the amount sought to be collected is in the es the defendant shall not be allowed to make nature of a tax, and it cannot be offset by defense that the work was not done according to contract, is to be read in connection with independent causes of action between the the provision in section 3158, that the court city and the property owner. Bayes v. Town trying the case shall have the right to correct of Paintsville, 166 Ky. 679, 179 S. W. 623; L. any error or mistake made by the city, engineer R. A. 1916B, 1027; Bodley v. Finley's Ex'r, ou council, so as to do complete justice to all parties. The meaning of the two sections, tak- 111 Ky. 618, 64 S. W. 439, 23 Ky. Law Rep. en together, is that the defense that the work 851; Board of Council of City of Frankfort was not done according to contract shall not v. Brislan, 126 Ky. 477, 104 S. W. 311, 1199, exempt the property from liability, but that the court trying the case shall render such judg- 31 Ky. Law Rep. 867, 32 Ky. Law Rep. 377. ment against the property as will do complete If it would be incompetent to allow such justice to the parties.”

counterclaim where the suit to enforce the [1] It must be admitted that the criticism lien is brought in the name of the city, it cerwhich counsel for appellants make of the in- tainly cannot be insisted that such a claim terpretation given to the sections of the stat would be allowable on a cross-petition against ute in that opinion is not altogether without the city contained in the defendant's answer, merit, and if the question were being pre- although the city may have been made a sented now for the first time we would not party to the suit prior to the filing of the be inclined to adopt the interpretation there cross-petition. If the abutting property sufgiven without some hesitation; but the Lind- fers consequential damage because of the sey Case has been followed since its rendi- plan of construction adopted by the city, the tion and the doctrine therein announced has owner of the property might have a remedy been approved in the cases of Nell v. Power, against it-a question that is not here pre107 S. W. 694, 32 Ky. Law Rep. 952, and City sented; but such remedy must be prosecuted of Lexington v. Walby, 109 S. W. 299, 33 Ky. in an independent suit, and not be relied upLaw Rep. 116. So that the improvements of on as a defense to the character of suit we public ways in cities of the third class have have here. been governed by the statute as construed and In the two cases of Bodley V. Finley's followed in the Lindsey Case, and we are ad- Ex'r and Board of Council of the City of monished that under the doctrine of stare de- Frankfort v. Brislan, supra, it was held that

, cisis we should not now depart from that con

a counterclaim might be maintained in this struction, for after all the completed statute character of suit against the contractor, when is the construction given to it by the highest such counterclaim or set-off arose and grew court within the jurisdiction where it pre- out of matters independent of the execution vails, and since it would have been compe- of the contract. In the Brislan Case the tent for the Legislature to pass a statute counterclaim sought to be asserted was for conforming to the construction given to the tort committed by the contractor by tressections, supra, in the Lindsey Case, no hard- passing upon defendant's property and atship can result from a continued adoption of tempting to improve it as a part of the that construction. This being true, the only street. In the Bodley Case the defense was remaining points urged for a reversal are in the nature of a set-off, being a debt which the property owner held against the con- and John T. Hodge, both of Newport, for tractor. The Brislan suit was brought by appellees. the city, not in its municipal capacity, but as assignee of the contractor, and this court CLAY, C. In the month of December, held that:

1914, Martha J. Girty, a resident of CampAs assignee of the contractor's claim, the bell county, died, leaving a will by which city occupies no better position than the con- she bequeathed to her sons, Louis Girty and tractor, and appellee can set up against it any claim for damages that he could have asserted George Girty, and her daughter Katherine against the contractor."

Hewling $5 each, and to her daughter Jennie In this case, however, the alleged claim Jenkins the remainder of her estate after for damages is not bottomed upon facts in- payment of her debts. The nominated execdependent of the contract, but grows out of utor died before the testatrix, and Thomas the doing of the work itself, and if the con- M. Lett was appointed and qualified as adtractor in such instances could be made to ministrator with the will annexed. Thererespond in damages it would deter many per-after the administrator brought suit against, sons from bidding for such contracts, and Louis Girty to recover the sum of $160, with municipalities, in carrying out their govern- interest at 3 per cent. from September 20, mental duties to improve their highways, 1901, subject to a credit of $5 as of August would find great difficulty in securing bidders 22, 1902, and $5 as of November 22, 1906. and having the price increased so as to cover | Louis Girty interposed a counterclaim of $1,the possible loss which might be sustained 625, with interest from December 20, 1914, by damage suits brought by abutting prop- and recovered a judgment for that amount erty owners. Our conclusion, therefore, is subject to the aforesaid indebtedness to the that the damages sought to be recovered by estate. Thereafter Louis Girty brought this the counterclaim, both as against the con- suit against the administrator, Jennie Jentractor and the city, were properly dis- kins, George Girty, and Katherine Hewling allowed.

for a settlement of the estate. In this acThis dispenses with the necessity of pass-tion Jennie Jenkins filed her answer and ing upon the correctness of the ruling of the cross-petition whereby she sought judgment court in refusing to submit to the jury the against the administrator for the sum of $8,issue raised by the counterclaim.

000 for services rendered in nursing and takWherefore the judgment is affirmed.

ing care of the testatrix during the last

years of her life. The instructions to the (180 Ky. 786)

jury authorized a finding of $5,702 in favor GIRTY V. GIRTY'S ADM'R et al. of Mrs. Jenkins, and the jury fixed the value

of her services at $4,400, and judgment was (Court of Appeals of Kentucky. May 31, 1918.) rendered accordingly. Mrs. Jenkins offered 1. EXECUTORS AND ADMINISTRATORS 205(1) to remit $702 of this amount. After refer-CLAIMS-AGREEMENTS TO WILL_EFFECT.

ence to the commissioner an allowance of Where deceased, in consideration of care and support, agreed to give claimant, a daugh- $250 was made to the attorney for the adter, all she had when she died, mere fact that ministrator. No allowance was made to the

10 than assets, did not entitle claimant to recover attorneys for Louis Girty. On final hearing from the administrator, where deceased be the costs and fees allowed were directed to queathed all her property to claimant, as agreed. be paid and the balance of the fund in the 2. EXECUTORS AND ADMINISTRATORS Om511(4) hands of the administrator was ordered pro-ATTORNEY FEES-ALLOWANCE. Where administrator's attorney twice re, kins. Louis Girty appeals.

rated between Louis Girty and Mrs. Jensisted motions to remove the administrator, and brought suit for $160, wherein the defendant When Martha J. Girty was about 82 years got judgment on his counterclaim, and the at- of age she moved to the home of Mrs. Jentorney also answered, but did not defend, in a

kins. She said to Mrs. Jenkins, “Jennie, settlement suit, his reasonable fee was $150. 3. EXECUTORS AND ADMINISTRATORS Om511(3) take good care of me, and when I die, I will -SETTLEMENT-ATTORNEY'S FEES.

give you all that I have got.” To this arAttorney of judgment creditor of estate rangement Mrs. Jenkins assented. The teswho, for his client's benefit, sued for settlement tatrix continued to live at the home of Mrs.

, and defeated claim of another claimant, was not Jenkins until her death 10 or 11 years later entitled to fees out of the estate.

at the age of 92. During that time Mrs. Appeal from Circuit

Circuit Court, Campbell Jenkins continued to take care of her mothCounty. Suit by Louis Girty against Thomas M. er, and during the last few years of her

mother's life she was compelled to change Lett, as administrator with the will annexed her mother's clothes and bed clothing very of Martha J. Girty, deceased, and others. frequently because of her mother's inability

, From the decree rendered, plaintiff appeals. to control her kidneys and bowels. At the Affirmed in part, and in part reversed.

time Mrs. Jenkins made the contract to take See, also, 175 Ky. 166, 193 S. W. 1024.

care of her mother, she knew that her mother A. M. Caldwell and Horace W. Root, both had on deposit something over $2,000, and of Newport, for appellant. C. W. Youngblut I did not know that Louis Girty had any claim against his mother until after her death. , ety of the allowance of $250 made to the at. The instructions authorized a recovery by torney for the administrator. It appears Mrs. Jenkins if the jury believed from the that the attorney resisted, both in the counevidence that the labor and services perform- ty court and the circuit court, a motion to ed by her for her mother were rendered by remove the administrator. He also brought her with the intention and expectation on the suit against Louis Girty for $160, in her part and the expectation and agreement which Girty succeeded in recovering a judgon the part of Martha Girty that she should ment on his counterclaim. While he filed an be paid therefor. By another instruction the answer for the administrator in this action, jury were told that if they believed from the he did not contest Mrs. Jenkins' claim, but evidence that Jennie Jenkins agreed to ac- left that matter to be fought out by the atcept in full settlement of the services and torneys for Louis Girty and the attorneys articles provided, if any, the provision made for Mrs. Jenkins. Under these circumby Martha Girty in her will, they should stances we conclude that a fee of $250 was tind for the administrator, unless they fur- unreasonable, and that the fee should have ther found that at the time such agreement, been fixed at $150. if any, was made, Jennie Jenkins was not [3] Complaint is also made of the refusal aware that the debts of Martha Girty would of the chancellor to allow the attorneys for be larger than or equal to her assets, and in Louis Girty a fee payable out of the estate. ignorance of this fact and believing that Before bringing the settlement suit Louis such fact did not exist made such agreement, Girty had recovered a judgment against the in which event they should not find for the administrator. The real purpose of the setadministrator under that instruction. In tlement suit was to collect this claim. While support of this instruction it is argued that it is true that he contested the claim of Mrs. the agreement between the testatrix and Jenkins and has succeeded in defeating that Mrs. Jenkins contemplated that Mrs. Jen- claim, the services thus rendered by his atkins should receive a reasonable compensa- torneys were alone for his benefit and not for tion for her services, and was entered into the benefit of the estate as such. Under these in the belief that the testatrix had no debts, circumstances we conclude that his attorneys and that her estate of over $2,000 would be were not entitled to a fee payable out of the sufficient compensation. Hence it is insisted estate. Dougherty v. Cummins, 50 S. W. that as the estate was practically consumed 551, 20 Ky. Law Rep. 1948; Hall v. Metcalfe, by debts Mrs. Jenkins, as a creditor, was en- 114 Ky. 886, 72 S. W. 18, 24 Ky. Law Rep. titled to recover of the estate a reasonable 1660. compensation for her services. In consider- Wherefore the judgment refusing Louis ing this question it must be borne in mind Girty's attorneys a fee payable out of the that the relationship between the testatrix. estate is affirmed, and the judgment in faand Mrs. Jenkins was that of mother and vor of Jennie Jenkins and John T. Hodge is daughter. When the testatrix moved into reversed for proceedings consistent with this her daughter's home she did so with the ex- opinion. press understanding that if her daughter took good care of her she would leave her

(180 Ky. 815) daughter all she had.

LAWRENCE E. TIERNEY COAL CO. V. [1] This contract the testa tris kept to the

SMITH'S GUARDIAN et al. * letter. The testatrix was then 82 years of

(Court of Appeals of Kentucky. June 4, 1918.) age.

Had she died in the next few days, Mrs. Jenkins would have been overpaid. 1. CONSTITUTIONAL LAW Ow26, 70(3)-PowThe longer she lived the less Mrs. Jenkins

ERS OF LEGISLATURE.

There are no restraints upon legislative auwould receive for her services. Thus the thority except those imposed by the federal and contract was in a sense a chancing bargain; state Constitutions, and an act cannot be set its value depending on the length of time aside merely on the ground that it is unwise

and detrimental, testatrix lived and on the amount of the es

2. CONSTITUTIONAL LAW Om 87' - GUARDIAN tate devised. Whether the contract proved

AND WARD On 76-INSANE PERSONS Om71to be profitable or not was a chance which MINERALS-LEASING LANDS BEYOND PERIOD Mrs. Jenkins necessarily took. Where such

OF DISABILITY. a contract has been executed by the parties, authorize guardian of minor or committee of

Acts 1916, c. 99, in so far as it attempts to the courts are not at liberty to disregard the incompetent to lease, under order of court, the contract and authorize the jury to make an-coal, oil, gas, and other minerals in land for a other contract for the parties because the period beyond the disability, is unconstitutional

as an interference with property rights. former did not prove as profitable as one of the parties expected. Instead of authoriz- Appeal from Circuit Court, Pike County. ing a finding in favor of Mrs. Jenkins, the Proceeding by Jesse D. Kash, as guardian trial court should have peremptorily instruct- of Octavia, Jake, and Ike Smith, to lease ed the jury to find in favor of the adminis- land. There was a judgment authorizing a trator.

lease to the highest bidder. The Lawrence E. [2] The next question concerns the propri- Tierney Coal Company bought the lease, but appeals formally from the report of sale., accountability as such guardian or committee. Judgment reversed, with directions.

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

*Rehearing denied.

Thereafter the rights and obligations of such

former infant or person of unsound mind and Auxier, Hamn & Francis, of Pikeville, for the lessee shall be the same as if the lease appellant. P. B. Stratton, Jesse D. Kash, had been executed originally to the lessee by and J. R. Johnson, Jr., all of Pikeville, for a person over twenty-one years of age and free

from any disability." appellees.

In 1917 Jesse D. Kash, as statutory guardCARROLL, J. This case presents the im- ian of Octavia, Jake, and Ike Smith, filed portant question whether a circuit court, pur- these infants averring that Octavia was 11,

his petition in the Pike circuit court against suant to legislative authority so to do, has the power to lease the mineral land of infants Ike 16, and Jake 18, years of age; that they for a term of years beyond their minority, were the owners of about 2,500 acres of land and brings before us the validity of the legis- devised by the will of Jacob Smith, in 1906. and brings before us the validity of the legis- to their father for life, with remainder to lative act attempting to confer upon the cir- them in fee; that the land was unfit for culcuit court the power it exercised in this case. tivation on account of its rough and mounThe question comes up in this way: In

tainous character, and its sole value consisted 1916, the Legislature enacted a statute (Laws in the coal thereon ; that the infants have no 1916, c. 99) providing in section 1:

income, and if they were permitted to lease "That the guardian of an infant curator or the coal and mining rights in the land the the committee of a person of unsound mind may lease the real estate, or any interest therein, of royalty derived therefrom would be sufficient such infant or person of unsound mind for the to educate and maintain them; he prayed purpose of mining and removing all or part of that the court enter a decree authorizing him the coal, oil, gas and any or all other mineral or mineral substances and products therein; to lease the property for coal-mining purposes, together with the usual and reasonable neces- pursuant to the terms of a lease proposed to sary privileges to mine, bore for, store, pump be made between these infants by Kash, as and remove the same, and similar products taken their guardian, of the one part and the Lawfrom other land, and the right to dump upon said land refuse or other products taken there- rence E. Tierney Coal Company of the other from and from other land; and to erect upon part. This lease stipulated that the grantors, said land miners' houses, commissaries and ho- in consideration of certain royalties provided tels and other houses and equipment reasonably necessary to enable the lessee to carry on the for, leased all of the coal in and under the business in the most economical way.

Such land to the coal company for a period of 40 lease may be for such length of time as the years, with the privilege of renewal for an guardian, curator or committee may approve; additional term of 40 years. The lease furwithout being limited to the time at which the disability of such infant or person of unsound ther contained a number of stipulations promind may be removed."

viding for the use and occupation of the propIn section 2 it was provided that no such erty by the coal company to enable it to mine

In section 2 it was provided that no such and deliver the coal, and then provided that lease shall be made until the guardian, cura- the lessee should pay to the lessors, during . tor, or committee shall have filed, in the office the continuance of the lease, or any renewal of the circuit court clerk, a petition against thereof, a royalty of 10 cents for each ton of the infants, or person of unsound mind, set- coal produced from the land and 15 cents for ting forth a description of the land, and each ton of coke that might be manufactured showing the propriety of making a lease on the premises, the minimum royalty to be thereto. In section 3 it was provided that a $5,000 for the first year, $10,000 for the secguardian ad litem should be appointed to ond, and $15,000 for the third, and each year protect the interest of the infants, or the

thereafter. person of unsound mind, and in section 4

After this, the infants

infants were properly that the court should hear and dispose of brought before the court and a guardian ad the case upon the evidence taken, and if it litem was appointed to represent them, and was made to appear by the evidence of at he filed a report reciting that, in his opinion, least two creditable witnesses that the in- the lease would be beneficial to them. Thereterest of the infants, or person of unsound mind, would be promoted by the lease, the upon evidence was taken supporting the avercourt should order that the property be leased ments of the petition, and afterward the

court rendered a judgment authorizing the and prescribe the royalty to be paid. Sections 5, 6, 7, and 8 relate to the practice od of 40 years, with the privilege of renewal

, , and procedure, and prescribe the descent of for 40 years for the purpose of mining and the estate upon the death of the infants, or removing coal therefrom, with the usual privpersons of unsound mind, without having dis- removing coal therefrom, with the usual priv

ileges contained in such leases. The judgposed of the same. In section 9 it was pro- ment further recited that the conditions of vided that:

the lease filed with the petition were reasonThe guardian, curator, or committee should able and satisfactory, and that the guardian settle from time to time his accounts “and upon the infant becoming of age or the person of un- should lease the coal privileges in the land sound mind becoming of sound mind shall make under and according to the terms of the form a final and complete settlement of all amounts of lease filed with the petition at public received under such lease, and account for the same as herein and by law provided; and shall outcry, reserving to the court the right to

privileges as set out in the lease filed with, after the infant had arrived at full age, or the petition were sold pursuant to the judg- the disability was removed. When either ment, and the Lawrence E. Tierney Coal Com- of these contingencies happened, then the perpany, being the only bidder, became the pur- son who had been an infant, or who had been chaser under the terms of the lease hereto- laboring under some legal disability, was refore referred to. Formal exceptions were fil-stored to his rightful status as a citizen of ed to the report of sale by the company and the state entitled to the free and unrestrained overruled, and it prosecutes this appeal for use and management of his property to the the purpose of having the correctness of the same extent as that of any other person of judgment and the rulings of the court in full age and sound mind. But the act of respect to the exceptions determined by this 1916 undertook to make a radical and sweepcourt in order that there might be no ques- ing change in this time-honored public policy tions about the validity of the lease, and its of the state, and to give to circuit courts rights and privileges thereunder. It may having general equity jurisdiction powers not here be remarked that the proceedings had only to regulate and control the estates of in the lower court were in conformity with infants and persons of unsound mind during the provisions of the act, and so if there were the infancy or period of disability, but to no objections to its validity the judgment project this regulation and control far beyond should be affirmed.

the time theretofore prescribed and long At this point we may digress a moment after the infant had arrived at age, or the to briefly review the state of the law pre- disability had been removed ; and the question vious to the act of 1916. In sections 489–498 is, Did the Legislature have this power? of the Civil Code, provision is made for the [1] In determining this question, we have sale of the real estate of infants and per- not overlooked the fact, so often declared by sons of unsound mind. But the sale of the this court, that a legislative act will not be real estate of infants and persons of unsound declared invalid unless the legislation was mind, under these Code provisions, is only prohibited by the Constitution, because the allowable: (1) For the purpose of paying a rule long pursued by this court, and generally debt of the ancestor with which the infant, observed by other courts, is that there are no or person of unsound mind, may be charge- restraints upon the authority of the legislaable; (2) for the purpose of paying the debts tive department except those imposed by the of the infant, or person of unsound mind; (3) federal and state Constitutions. Thus it was for the maintenance and education of the said in Johnson v. Higgins, 3 Metc. 566, infant, and the maintenance of the persons

that: of unsound mind and their families; (4) for "The duty, and sole duty, of this department purposes of reinvestment in other property. er of the Legislature to enact a law is question

of the government, when the constitutional powIt has also been frequently and consistently ed, is to look to the provisions of the federal held that courts of equity have no inherent and state Constitutions, and if they do not, in power to sell, for any purpose, the real estate express terms, or by nécessary and proper 'im

plication, forbid the exercise of such power, the of infants, or persons of unsound mind, and enactment must be adjudged valid and enforcethat when it is sought to sell their realable as a law. Beyond the constitutional reestate express authority for the sale must be strictions thus to be interpreted, the only limits

upon the state Legislature in enacting laws are found in statutory provisions, and these pro- its own wisdom, sound judgment, and patriotvisions must be strictly complied with. ism. And it may be added that in doubtful casWalker v. Smyser, 80 Ky. 620; Elliott v. es, where it is not clear that the fundamental

law has not been invaded, courts rarely, if ever, Fowler, 112 Ky. 376, 65 S. W. 849. It is interfere to arrest the operation of legislative further provided in section 2031 of the Ken- enactments. Respect for the wisdom of a cotucky Statutes that a guardian “may lease ordinate department of the government, as well any real estate of the ward until the ward as sound policy, forbids such interposition, ex

cept upon clear and satisfactory grounds. shall arrive at the full age; but no such lease shall be made for a longer term than 167 Ky. 96, 180 s. W. 68, we said:

And again in Commonwealth v. Goldburg, seven years.” So that before the act of 1916 a court of equity could not lease for a longer they are supposed to be repugnant to some gov

“Laws cannot be disregarded merely because term than the minority of the infant his real ernmental principles that lie outside of constiestate or any interest, mineral or otherwise, tutional limitations. The Constitution of this therein, nor could his real estate, or any powers of government, confided to the legislative

state, in sections 27 and 28, distributing the part thereof or interest therein, be sold for branch the authority to enact laws, and this any purposes except those pointed out in the authority the judiciary is not at liberty to inter

fere with unless the legislation violates directly statutory provisions referred to.

or by necessary implication some provision of It had always been the policy of the state, the state or federal Constitution. Subject to as expressed in legislative enactments and this limitation, the policy of the legislation or court opinions, to guard with jealous care the wisdom or the propriety of it is not for the the property rights of infants and persons When the courts have exercised their jurisdic

. under disability, but it was never thought tion in restraining the Legislature from transthat the courts had any power to undertake gressing constitutional bounds, they have reachto regulate or control in any manner, by pro- in the Constitution such limitations as they

ed the limit of their control. The people put ceedings brought during infancy, the estate wished to impose on the legislative branch, and

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