mately be realized. See Strode v. Gilpin, 187 Mo. loc. cit. 392, 86 S. W. 77.

[12] IV. The trial court quite properly sustained appellant's exception to the credit taken by respondent for the premium paid on the latter's bond as administrator. And the credits for advertising final settlement and for costs in the probate court are not in controversy.

[13] The attorney's fee of $100 appearing in the final settlement is attacked upon the ground that the estate is not liable therefor, and as being excessive. This is an expense incurred by the administrator in the course of administration and while the property was allowed to remain in his hands. It was proper for the probate court to allow reasonable attorney's fees for legal services rendered the estate. The evidence in the record is meager as to the amount and character of the services rendered; but the reasonableness of the allowance was passed upon by the probate judge, who was in a position to know the value of the services rendered, and we think that the allowance should not be disturbed.

[14] The credit taken for moneys claimed to have been advanced to the estate by Skinner must be presumed to have been properly allowed by the probate court, as no evidence to the contrary appears.

[15] As to the credit for 1,321.85 for uncollected accounts, and which were charged off as uncollectible and worthless, section 240, Rev. Stat. 1909, authorizes the probate court to give credit to the executor or administrator for debts charged in the inventory as due the estate

that:

# *

"The court may in its discretion order the executor or administrator to sell at public auction all notes, accounts and choses in action remaining in his hands, or the court where there are no creditors of the estate may order the same to be turned over to the heirs and legal representatives of the deceased, who shall have the right to sue for and recover thereon in any court of competent jurisdiction." The provisions of these sections are evidently applicable to partnership estates. See section 99, Rev. Stat. 1909.

Under the circumstances we must presume that the probate court was satisfied that it was not possible for the administrator to collect the accounts here in question, by the exercise of due diligence. This being true, we must hold that appellant's exception to this credit is not well taken. However, since the conclusions we have reached herein necessitate a further settlement and order of distribution, should the accounts in question appear to be now of any value whatsoever, the probate court will doubtless make appro

[16, 17] The circuit court, upon motion, allowed to respondent an attorney's fee of $100 for defending the final settlement in that court against the exceptions filed thereto, and ordered one-half of the balance on hand to be paid to appellant subject to the payment of this fee and the costs. Such an allowance by the circuit court for defending a final settlement has been upheld, even where certain credits were disallowed. See Jacobs v. Jacobs, 99 Mo. loc. cit. 437, 12 S. W. 457; In re Estate of Meeker, 45 Mo. App. loc. cit. 197. In an ordinary case we would have no disposition to interfere with an allowance for such purpose, where the executor or administrator has faithfully discharged his duties, and in the main rendered a true account of his trust, though certain items in the settlement were technically objectionable. The difficulty here is that the principal question litigated pertained to the distribution of the assets remaining in respondent's hands; upon the facts revealed by this record we hold that the appellant is entitled to all thereof, and the question is whether she should be compelled to bear respondent's counsel fees incurred in such litigation.

The general rule is that an administrator cannot be allowed counsel fees incurred for services rendered in defense of his own personal interest, or where the litigation is in reality between beneficiaries, and not for the benefit or in the interest of the estate as a whole. See 2 Woerner on Administration (2d Ed.) § 516, and authorities cited; In re Final Settlement of Peter's Estate, 128 Mo. App. 666, 107 S. W. 406. In the main, the contest here was in reality between beneficiaries, and the result affects, not the estate, but the personal interest of respondent therein.

[18] However, counsel fees for defending the settlement against the exceptions to credits taken by respondent therein are properly chargeable against the estate. Jacobs v. Jacobs, supra. There is, of course, some practical difficulty in separating such charges, or apportioning the fees, but it seems that in such a case this should be done; distinguishing between that which is properly allowable against the estate and that which the administrator should bear personally. See 2 Woerner on Administration (2d Ed.) § 516; Price's Estate, 81 Pa. 263; Fox's Appeal, 125 Pa. 518, 17 Atl. 451.

It would appear that the allowance in gross made by the circuit court was improper; and the order made in the premises should be vacated without prejudice to the right of respondent to apply to the probate court for the allowance of such attorney's fees as in the opinion of that court should be allowed for defending the final settlement against the exceptions which pertain alone to the credits taken by respondent therein.

For the reasons given above the judgment is reversed, and the cause remanded, with

ally.

cur.

MILLER v. KANSAS CITY SOUTHERN RY. CO. (No. 1130.)

(Springfield Court of Appeals. Missouri. May 1, 1914. Rehearing Denied May 22, 1914.) 1. DAMAGES (§ 112*)—DestrUCTION OF GROWING TIMBER-MEASURE OF DAMAGES.

The measure of damages for the destruction by fire of numerous small forest trees ranging in height from eight inches to three feet is the difference between the value of the land before and after the fire, and not the difference in the value of the trees before and after the fire; the trees having no value when severed from the soil.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 2. DAMAGES (§ 112*)-DESTRUCTION OF CROP OF HAY-MEASURE OF DAMAGES. The measure of damages for the destruction of a meadow about ready to harvest is the value of the crop of hay and the cost of re-seeding the meadow.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 3. DAMAGES (§ 112*)-DESTRUCTION OF MEADOW-MEASURE OF DAMAGES-COST OF RESEEDING.

The measure of damages for the destruction by fire of a meadow is the cost of re-seeding the land.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 4. TRIAL ($84*) — EVIDENCE - OBJECTIONS SUFFICIENCY.

An objection to a hypothetical question put to a witness as to the probable damage caused by a fire destroying trees and a meadow, on the ground that it is incompetent, immaterial, and irrelevant, and because the witness states that he knows the land and the value thereof, and that is sufficient, does not raise the question of the disqualification of the witness as an expert. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 211-218, 220-222; Dec. Dig. § 84.*] 5. APPEAL AND ERROR (§ 232*)-QUESTIONS REVIEWABLE-RULINGS ON EVIDENCE-REC

ORD.

The ruling on an objection to testimony as to the value of land before and after it was burnt over, "for the same reason last given," will not be reviewed, where an examination of the record shows no objection to the previous testimony of the witness, and the next previous objection was to the testimony of the preceding witness, which was sustained, as not a proper way to prove the market value of the land, and that it was not shown that he knew, and that the next previous objection was that the facts called for were not proper proof of damages, because the court will not determine the particular proposition that the objector had in mind when making his objection.

Neosho, for respondent.

ROBERTSON, P. J. This action originated in McDonald county circuit court, and, on change of venue, was tried in Newton county, resulting in a verdict in favor of the plaintiff on the first count in his petition for $125, on the second count for $8, and on the third for $12. The defendant has appealed.

Plaintiff's petition alleges as the first cause of action that, by reason of a fire on or about November 14, 1911, communicated to the land mentioned by an engine owned and operated by the defendant on its road, certain young timber was destroyed, causing damage to the amount of $800. The second cause of action alleges that in June, 1911, one acre of meadow on said land was destroyed by a fire set out in the same manner, causing damages to the amount of $10. The third cause of aetion alleges that in September, 1912, a fire set out in the manner above stated destroyed two acres of meadow on said land, causing $15 damages. The land was owned by the wife of plaintiff, but the cause of action was assigned to him, and there is no point made here on that question.

The testimony offered by the plaintiff in support of the first cause of action tended to prove that a large number of small cedar and pine trees were growing upon the land and the damages were, over the objection of the defendant, proved by testimony tending to show the value of the land before and after the fire. The testimony discloses that the fire which occurred in June, 1911, referred to in the second cause of action, destroyed the timothy then growing on the meadow, which was about ready for harvesting, and the testimony tended to prove the value of the crop and also the cost of re-seeding the ground. In support of the third cause of action the testimony introduced was as to the cost of re-seeding the meadow which it is claimed was destroyed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*]

Action by John W. Miller against the Kan

two inconsistent lines of authorities in this state, but it was held by the Supreme Court in that case that the Kansas City Court of Appeals had announced the correct rule.

"If their chief value exists when separated from the soil, then their value after removal may be shown as the measure of damages. If on the other hand, their essential value arises from their connection with the soil, then the difference in value of the land before and after the removal is the measure of recovery of the owner."

That opinion is cited with approval in the case of Matthews v. Railroad, 142 Mo. 645, 665, 44 S. W. 802.

The appellant directs our attention to the case of Atkinson v. Railroad, 63 Mo. 367, as an authority in support of the contention that the plaintiff should have been confined to the difference in the value of the trees before the fire and their value thereafter. The damages there sought to be recovered was for injury done to forest trees, and the court remarked, in reversing and remanding the case, in view of a retrial, that such was the true measure of damages. But, applying the rule announced in the Shannon and Matthews Cases, supra, we are of the opinion that the proper measure of damages was adopted in the case at bar. The plaintiff testified that the trees destroyed were numerous and small, ranging in height from eight inches to three feet. Such trees would have no value when severed from the soil.

[2] As to the second cause of action, the court properly submitted thereunder the two items of damages proven without objection. The appellant insists under the second point, as above stated, that the proper measure of damages was not applied. The plaintiff is entitled to recover the value of the crop of hay, since it was practically ready for cutting, and, on account of the destruction of the ineadow, the cost of re-seeding. Adam v. Railroad, 139 Mo. App. 204, 122 S. W. 1136; Doty v. Railroad, 136 Mo. App. 254, 116 S. W. 1126. [3] On the third cause of action the proper measure of damages was applied. Prior to the opinion of the Supreme Court in the case of Couch v. Railroad, 252 Mo. 34, 158 S. W. 347, 46 L. R. A. (N. S.) 555, which had been certified to that court by the Kansas City Court of Appeals (Crouch v. Railroad,

The witness then proceeded to testify as to the value of the land before and after the fire, to which the defendant objected, because not competent proof of damage. There was no sufficient objection to raise the question of the lack of knowledge of the witness that would render him disqualified from testifying as an expert. In fact, the attorney for the defendant, in that part of the objection quoted, concedes that the witness knew the land, and knew the value of the land, but the subsequent objection discloses that the point that was sought to be raised was that the proper measure of damages was not being adopted, and we have above disposed of that question.

[5] The testimony of another witness on which error was assigned in the third point as to its admission was as to the value of the land before the fire went over it, and its value thereafter. The objection noted in the record is "for the same reason last given." Tracing the record backward, we do not find any previous objection to the testimony of this witness; but an examination of the record as to the testimony of the witness just previous to this one discloses another objection referring to a previous objection, and the first stated objection is as follows:

"Objected to because it is not a proper way to prove the market value of the land, and it is not shown that he knows."

The objection was sustained. The next previous objection was that the facts there called for were not proper proof of damages. Upon this state of the record, even though it may be the duty of an appellate court to run down the reasons for objections, it unquestionably does not become our duty to ferret out and determine the particular proposition that the objector has in mind when his purpose is beclouded as here. We are of the opinion, as we read the record and as disclosed by the third point made in behalf of the appellant here, that the principal insistence is that the proper measure of damages was not adopted. Upon this point we have ruled adversely to the appellant. The judgment is affirmed.

one of defendant's street cars at the inter

(St. Louis Court of Appeals. Missouri. May 5, 1914. Rehearing Denied May 21, 1914.) 1. STREET RAILROADS (§ 93*) INJURIES TO PEDESTRIAN-EVIDENCE-NEGLIGENCE. Evidence that a street car which struck a pedestrian at a crossing approached the crossing at a rate of 18 or 20 miles per hour, and that no warning was given, establishes a prima facie case of negligence on the part of those operating the car.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 2. STREET RAILROADS (§ 117*)-INJURIES TO PEDESTRIANS EVIDENCE CONTRIBUTORY NEGLIGENCE. Where one who, before starting across a street car track at a muddy crossing, looked up the track from a point where she could see for 150 feet, and saw that the track was clear for that distance, but did not look again while crossing the track, and was struck by a car just before she had reached the other side, it was a question for the jury whether she was contributorily negligent in not looking after she

did.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]

3. TRIAL (§ 156*)-DEMURRER TO EVIDENCEEFFECT AS ADMISSION.

A demurrer to the plaintiff's evidence admits the truth of the plaintiff's testimony. [Ed. Note. For other cases. see Trial, Cent. Dig. §§ 354-356; Dec. Dig. § 156.*]

4. STREET RAILROADS (§ 117*)-INJURIES TO PEDESTRIANS - CONTRIBUTORY NEGLIGENCE. Ordinary care does not require one approaching a street railway crossing to constantly look and listen until he gets across, but, if he looks and sees no car within such distance as would prevent him from crossing before one going at a lawful speed could reach the crossing, he is not negligent, as a matter of law, in attempting to cross without looking again.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. 8 117.*1

5. TRIAL (§ 156*)—DEMURRER TO EVIDENCEDETERMINATION.

In determining defendant's demurrer to the evidence, the court must consider the evidence in the light most favorable to the plaintiff.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 354-356; Dec. Dig. § 156.*]

street, in the city of St. Louis. Plaintiff had been a passenger on a car of defendant on what is known as the latter's "natural bridge" line, the double tracks of which extend along a portion of Garrison avenue, a street extending north and south, crossing Madison street, which extends east and west. Plaintiff alighted from a north-bound car on Garrison avenue at the north side of Mad

ison street, and proceeded in a westerly direction across the latter street and the double tracks of defendant thereon. She had nearly succeeded in crossing both tracks when she was struck by a south-bound car upon the west track, sustaining the injuries for which she sues. She testified that after she stepped from the north-bound car the latter proceeded on its way before she attempted to cross; that she stepped from this car a few feet north of the foot crossing at this place, and walked back to the latter and proceeded to cross the tracks; that just before she entered up

on the east or north-bound track she looked to the north for an approaching car on the South-bound track, and saw none. Her testimony is that, at the time she thus looked, the car from which she had alighted had proceeded far enough on its way north so that she could see along the west or southbound track to an alley north of Madison street, which she thought was about 120 or 130 feet distant. Another witness for plaintiff testified that this alley was about 150 feet distant from this crossing. From plaintiff's testimony it appears that she did not look again after entering upon the tracks.

On behalf of plaintiff a Mrs. Ralls testified that she was walking south on Garrison avenue at the time of the accident, and that the car which struck plaintiff passed her when she was about 10 feet north of the alley above mentioned. This witness testified on direct examination that in her judgment the rate of speed of the car as it passed her was between 18 and 20 miles per hour; that there was no bell or gong sounded in ap

Action by Mary Maloney against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and R. E. Blodgett, all of St. Louis, for appellant. John J. O'Brien and McShane & Goodwin, all of St. Louis, for respondent.

ALLEN, J. This is an action for personal injuries sustained by plaintiff, alleged to have been occasioned by defendant's negligence. There was a verdict and judgment for plaintiff for the sum of $1,100, and the case is here on defendant's appeal.

ing plaintiff, the car ran across Madison street, a distance of about 50 feet. On crossexamination, she stated that she "could be positive that the car was running over 12 or 14 miles per hour."

The foregoing is the substance of the testimony for plaintiff, with the exception of that of a physician. At the close of plaintiff's case defendant requested a peremptory instruction in the nature of a demurrer to the evidence, which was refused. Thereupon defendant offered no testimony, except that of a physician who, at the instance of defendant, had examined plaintiff shortly prior to the trial.