by the defendant, charging him with being a vagrant, which is an offense denounced by section 4758, vol. 3, Kentucky Statutes, and punishable thereunder by fine of not less than $20 or more than $100, and by being required to work not exceeding 60 days upon the public roads or streets or other public works of the county or any municipality therein.

Plaintiff was acquitted upon the trial of the warrant before a jury, and the charge is of such a degrading character as must necessarily have imposed upon any one not guilty thereof much and severe humiliation and mortification and presumably some loss of reputation. That such was the result of the charge in this instance is proven by the testimony of plaintiff and several of his witnesses, and not denied by any one.

issue does not defeat the contingent remainders, the intention of the testator obviously being not to give his children remainders in fee, and hence on the death of the child, his own children having previously died, the contingent remain

dermen are entitled to take.

4. Partition 96-Deed in partition held not to bar contingent remainders.

Where testator devised his lands to his wife,

with direction that on her death they should be divided between his four children, and at the partition each assumed one-fourth of the tesdeath of the wife. the four children who sought tator's debts, and the land was conveyed to them, the commissioner's deed of partition did not, in view of the fact that there was no construction of the will, and that grandchildren of the testator entitled to contingent remainders in event of death of the children without issue

It is therefore clear there is no merit in

the contention that the evidence is insufficient to support a verdict for plaintiff.

[5] Neither are we able to say, under the circumstances outlined above, that a verdict of $500 strikes the mind at first blush as being so large that the jury must have been influenced by passion or prejudice in fixing plaintiff's damages at the amount. Hence under the familiar rule of this court a reversal cannot be ordered upon the ground that the verdict is excessive.

Wherefore the judgment is affirmed.

(191 Ky. 817)

DUNN et al. v. DUNN et al. (Court of Appeals of Kentucky. May 3, 1921. Rehearing Denied June 24, 1921.)

Where a testator devised lands to his wife should be divided between his four children, but for life, with direction that on her death they made elaborate provisions in case of the death of any child without issue, declaring that in such case his share should pass to the brothers and sisters or their issue, the issue of one brother who was party to the partition proceedings cannot be deemed to have been represented by their father, so that the commissioner's deed would vest in a child who died without issue the fee simple, and bar the contingent remainders.

Appeal from Circuit Court, Garrard County.

Suit by James H. Dunn and others against the executor and devisees of Erasmus Dunn, junior. From a decree for plaintiffs, defendants appeal. Affirmed.

T. L. Edelen, of Frankfort, and R. H. Tomlinson and L. L. Walker, both of Lan

tates.

The law in doubtful cases and in the interpretation of ambiguous and uncertain wills favors the vesting of estates.

3. Wills 634 (17) - Contingent remainder not defeated by birth of issue dying before life tenant.

Hamilton & Polsgrove, of Frankfort, for Jas. I. Hamilton, guardian.

Fred P. Caldwell, of Louisville, and J. E. Robinson, of Lancaster, for appellees.

TURNER, C. On the 20th of May, 1862, Erasmus Dunn, Sr., a resident of Garrard county, executed his will, and a few months thereafter died. His will in full is as follows:

"I, Erasmus Dunn of Garrard county declare this to be my last will..

"I wish my just debts paid.

"It is my will that my wife, during her life have my land, slaves and property.

Ruth Ann, and Erasmus to be made equal with James out of my slaves.

"It is my will after the death of my wife that my land negroes and other property be equally divided between my four children James Dunn, Ruth Ann Dunn, John Dunn and Erasmus Dunn after making the last three equal with James

out of the slaves.

"The portion of my estate devised to my son John, I wish held by sons, James and Erasmus, in trust for his use and benefit during his life, and for his children, if he should marry and have any at his death.

"If my son John should die without issue the interest devised to him in my estate is to go to my children, James, Ruth Ann and Eramus

or the survivors or their issue.

"The interest in my estate devised to my daughter Ruth Ann Dunn I give to her for her sole use as her separate estate free from the control of any husband she may have.

"If she should die without issue the interest devised to her is to be divided between the three children named before or the survivors or their issue.

"If my son Erasmus should die without issue I wish the interest devised to him to go to my I wish the interest devised to him to go to my three children before named the survivors or their issue.

"I wish my land divided equally between my four children before named after the death of my wife and held under the limitations and restraints before mentioned.

"If my wife should marry again she is entitled to have such portions of my estate as the law gives her.

"My wife if she thinks proper may during life let any of my before named children have the use of any of the property during her life. "It is my wish that my daughter Ruth Ann and Erasmus live with my wife Eliza and see that she is properly taken care of during her

life.

"I have been at much trouble as security of my son William G. Dunn and under the circumstances I do not believe he would enjoy any part of my estate.

"I therefore give him nothing.

"I appoint my sons James and Erasmus executors of this will, this 20th day of May 1862."

At the time the will was executed, and at the time of his death, Erasmus Dunn had a wife and five children, but he expressly provided that one of his sons should take nothing under his will.

His wife, Eliza, survived him, and remained his widow until her death in July, 1889. His son James survived him and his mother, and at the time the will was executed, and at the death of Erasmus Dunn, Sr., and at the death of the widow, Eliza, in 1889, had three children, who are the appellees herein. Ruth Ann survived her father and survived her mother, Eliza, but died, subsequent to 1889, without living issue. The son John likewise survived his father and his mother, and died, subsequent to 1889, without living issue.

Erasmus Dunn, Jr., married during the lifetime of his mother in about 1885, and there was born to him in 1886, during the

lifetime of his mother, two children, who were twins, and they each lived until 1890, when they each died, after the death of their grandmother. The wife of Erasmus Dunn, Jr., died some years thereafter, and he himself died in 1919, leaving no issue surviving him, and leaving as his only near relatives the surviving children of his deceased brother, James, who are now the appellees herein. Erasmus Dunn, Jr., however, left a wil wherein he undertook to devise the land taken under his father's will to Annie E. Watkins and her children. Annie E. Watkins died before the will of said Erasmus Dunn, Jr., was probated, and the appellants are the executor of said Erasmus Dunn, Jr., and the children of Annie E. Watkins, the devisees under the will of Erasmus Dunn, Jr.

After the death of Eliza Dunn, the widow of Erasmus Dunn, Sr., there was instituted in the Garrard circuit court an action for the settlement of the estate of Erasmus Dunn, Sr., it appearing that some of his debts still remained unpaid at that time, and in that action it was likewise sought to partition his landed estate among his four children named as devisees. To that action only his four children so designated as devisees were parties, and neither the children of James Dunn then living nor the twin children of Erasmus Dunn, Jr., then living, were made parties. Pending this action, however, and in 1890, the two twin children of Erasmus Dunn, Jr., died. It was made to appear in that action that there still remained un-. paid of the debts of Erasmus Dunn, Sr., something over $5,900, and by agreement among his said four children, who were his devisees, they each assumed and agreed as among themselves to pay one-fourth of that amount, and there was thereupon entered an agreed judgment in that action, and the court, having appointed commissioners, had the lands partitioned among the four children, and there was, under the orders of court, conveyed to each of them respectively the lands so set apart to them, and the master commissioner attempted to convey in fee simple to Erasmus Dunn, Jr., the lands now in controversy.

This is an equitable action by the children of James Dunn, son of Erasmus Dunn, Sr., against the executor and devisees of Erasmus Dunn, Jr., wherein the plaintiffs assert title under the terms of the will of Erasmus Dunn, Sr., to the lands so partitioned to Erasmus Dunn, Jr.

The defendants answered, claiming, in substance, that under the will of Erasmus Dunn, Sr., Erasmus Dunn, Jr., took the fee at his mother's death, and having had living issue during the existence of Eliza Dunn's life estate, took the fee, and, further, that, having had such issue living at the time of the death of his mother, Eliza, he took the fee, and that the fact that his said two children

subsequently died before he did, did not divest him of that fee; in other words, that under the correct interpretation of the will of Erasmus Dunn, Sr., upon the birth of living issue during the existence of the particular estate, Erasmus Dunn, Jr., under the terms of his father's will, became vested with the fee.

The questions presented for decision are: (1) Did Erasmus Dunn, Jr., take the fee under his father's will upon his mother's death or at the birth of issue to him during the existence of the particular estate, or did the children of James Dunn, his brother, take under the terms of the will of Erasmus Dunn, Sr., the fee upon the death of Erasmus Dunn, Jr., without living issue surviving him?

(2) Did the agreed judgment in the action instituted after the death of Eliza Dunn by the four devisees have the effect of vesting the fee in Erasmus Dunn, Jr., although the children of his brother James Dunn were not parties to that action?

[1-3] 1. The first contention of appellants is that Erasmus Dunn, Jr., took under the terms of his father's will an absolute estate upon the death of his mother. To so hold would be to nullify or entirely ignore, not only two express provisions of the will, but would be to give no effect whatever to the general scheme of the testator, as appears throughout the whole instrument.

In the early part of the instrument, and immediately after giving to his wife a life estate, the testator expressly provides that it is his will that

"After the death of my wife my land negroes and other property be equally divided between my four children."

And then, again in a later clause, after having placed certain limitations and restraints upon the estate devised to John, Ruth Ann, and Erasmus, he again provided:

"I wish any land divided equally between my four children before named after the death of my wife and held under the limitations and restraints before mentioned."

To say in the face of these two provisions that the testator intended his said three children, or any one of them, to have an absolute estate at the death of his wife, would, as we have said, not only destroy the whole scheme which the testator manifestly had in his mind of keeping the property within the blood lines, but would ignore the essential fact that he fixed the period of distribution after the death of his wife and expressly provided that the limitations and restrictions fixed on the estates devised should thereafter remain in effect. It is clear that if he had intended his said three children to take an absolute fee in remainder upon the death of

their mother, he would not have placed the limitations and restrictions upon the estate devised to them so that the same should be operative after her death.

There are many general rules adopted by the courts in interpreting ambiguous and apparently inconsistent provisions in wills; but there is one of universal application, and to which all others must give way, and that is, when the intention of the testator may be reasonably ascertained from the language he has employed, that intention must prevail. From the language employed in the instrument involved, it is not to be doubted that the testator intended the limitations and restraints placed upon the interests devised to his said three children to be operative after the death of his wife, and it therefore necessarily follows that at her death they took no greater interest than they had before, Not only so, if the testator had so intended, there would have been no necessity whatever for the use of the words in the later clause of his will, providing that after the death of his wife the estates devised to the three children should be held under the limitations and restraints before mentioned.

It is the further contention of appellants that upon the birth of issue to Erasmus Dunn, Jr., under the provisions of his father's will he became vested with the absolute fee. The provisions of the will are inconsistent with such an interpretation; it plainly provides, as we have seen, that the period of distribution shall be after the death of the wife, after the expiration of the particular estate, and the provision that it shall thereafter be held under the limitations and restrictions prescribed is inconsistent and utterly repugnant to the idea that it might in any event have vested during the lifetime of Eliza Dunn. The limitations and restrictions having been made expressly effectual after the expiration of the life estate of Eliza Dunn, the "dying without issue" could not have had reference to any other time except the death of Erasmus, Jr. If the testator had in his mind that the limitations and restrictions which he imposed might have been removed by the birth of issue during the lifetime of his wife, he would not have inconsistently imposed those same limitations and restrictions upon the estate devised, and provided they should continue after her death. Even a casual reading of the instrument involved is convincing that the testator was deliberately hedging about the devise to his said three children with such limitations and restrictions as would effectually prevent his property from going outside the blood lines.

It is true the law in doubtful cases and in the interpretation of ambiguous and uncertain instruments favors the vesting of estates, but it is likewise true that the courts are not authorized to nullify the wishes of