ed answer.

The court overruled the demur- | on any other day of the week, just as they rer, and, the plaintiffs standing upon their would have produced it had they occurred demurrer, their petition was dismissed. without any contract of bailment whatsoThey appeal.

Section 1321, Ky. St., among other things, provides: "No work or business shall be done on the Sabbath day, except the ordinary household offices, or other work of necessity or charity, or work required in the maintenance or operation of a ferry, skiff or steamboat, or steam or street railroads." Under this statute, it has been held that contracts made on Sunday are void, and that no action can be maintained thereon. Slade v. Arnold, 14 B. Mon. 287; Murphy v. Simpson, 14 B. Mon. 419. It is insisted for appellee that a pleasure ride not being a work of necessity or mercy, and the liveryman knowing at the time the purpose for which the horse was hired, the contract was void, and no action lies. But the case involves a tort committed subsequently to the making of the contract.

ever. It follows that the Sunday violation is as clearly nonessential upon the defendant's liability as are such questions as the exact location of the occurrence, the time of day, the color of the horse, and the like. But, if an inquiry into the contract of bailment were material, what is the result? The contract falls, because made on Sunday. That destroys the defendant's right to drive the horse, but it certainly does not confer the right to overdrive it. It vitiates the temporary right of use, but it does not pass the permanent right of property. In short, it leaves the defendant's liability upon the same basis as if the horse had been taken without the leave or license of the plaintiff." To same effect, see Nodine v. Doherty, 46 Barb. (N. Y.) 59.

In Costello v. Ten Eyck, 86 Mich. 348, 49 N. W. 152, 24 Am. St. Rep. 128, the deThe gist of the plaintiffs' cause of action fendant had taken the plaintiff's horse to is the defendant's negligent driving of the graze, and the horse had died from being horse. Their cause of action does not nec- subjected to a disease by negligence of the essarily rest on the contract between them defendant; but he insisted that he was not and the defendant. It rests on the tort liable for the death of the horse because which the defendant committed in abusing the contract was made on Sunday. Rejectthe horse after he got it in possession. The ing this contention, the court said: "Having fact that he got the horse in possession on taken the horse into his possession, though Sunday does not excuse him if while so in under a void contract, he yet owed a duty to possession he by his negligence killed the the plaintiff to exercise some degree of care horse. A man who has the possession of over it. He was bound to give the plainthe property of another on Sunday is as tiff notice of the disease, so that the plainmuch under obligation not to mistreat it as tiff might have removed the property, or on any other day. If the defendant had gone have taken some precaution himself, or to to the plaintiffs' barn and taken the horse have refused to put the horse in the pasture out without any contract with them, and there." In Merritt v. Earle, 29 N. Y. 115, so driven it as to kill it, he could not ex- 86 Am. Dec. 292, the plaintiff delivered cuse himself on the ground that the wrong horses to a carrier on Sunday. The horses was done on Sunday. But he was as much were lost. When sued, the carrier defended bound to take reasonable care of the horse on the ground that the contract was made when he got it on Sunday under a void con- on Sunday. In answer to this contention tract as he would be if he had so gotten it the court said: "But it is not material on any other day. The plaintiffs' consent whether the contract made was good or bad. for him to use the horse on Sunday simply It was enough to entitle the plaintiff to regave him the rightful possession of the cover, that the defendant, being a common horse; but, though he was rightfully in pos- carrier, had in his custody for transportation session, when he abused the horse, he com- the plaintiff's property, and by his negligence mitted a tort for which he is liable. In or in violation of duty it was lost. This Newbury v. Luke, 68 N. J. Law, 189, 52 Atl. gave the plaintiff a right of action wholly 625, the court in disposing of a case like this disconnected from the statute relating to said: "In the present case the defendant the observance of Sunday. Allen v. Sewall, argues that the plaintiff's right of action 2 Wend. [N. Y.] 328." In Hughes v. Atlanta rests upon a contract of bailment made on Steel Co., 136 Ga. 511, 71 S. E 728, 36 L Sunday, and, as that contract is void, the R. A. (N. S.) 547, Ann. Cas. 1912C, 394, action must fail. The fallacy is exposed by a servant who was working on Sunday in reference to the fundamental maxim-'causa violation of law was injured by the incomproxima, non remota, spectatur.' The Sun- petence of a fellow servant employed by the day hiring and the Sunday driving happened master also in violation of the Sunday statto furnish the conditions under which the ute, and the master relied on the statute death of the horse was occasioned. But in bar of a recovery. It was held that the its death was the direct and natural re- servant could recover as the violation of the sult of the overdriving and abuse, and of Sunday law was not the efficient cause of these alone. These causes would have pro- the injury; and in a note thereto a number

be a delivery, either actual or symbolical.
To constitute a gift inter vivos, there must
[Ed. Note.-For other cases, see Gifts, Cent.
Dig. §§ 29-33; Dec. Dig. § 18.*

ing that it is no defense to a carrier that a | 2. GIFTS (§ 18*)-"GIFT INTER VIVOS"-DEpassenger was traveling on Sunday in viola- LIVERY. tion of law, or that the servant was employed in violation of the Sunday law. See, also, I. C. R. R. Co. v. Dick, 91 Ky. 434, 15 S. W. 665, 12 Ky. Law Rep. 772; Commonwealth v. L. & N. R. R. Co., 80 Ky. 291, 44 Am. Rep. 475.

on

We do not see that the case here can be distinguished from those cited. The carrier commits a tort when he suffers a passenger to be injured by his negligence or when he loses that which he undertakes to carry. The master commits a tort when by his negligence his servant is injured. In all these cases, although the contract was in violation of the Sunday law, a recovery has been allowed for the tort, and we do not see that a horse delivered to another under a contract of hiring or other bailment can principle be distinguished. While there are not a few decisions holding otherwise, it seems to us that the rule above indicated is in keeping with the previous rulings of this court and rests upon sound principle. In Power v. Brooks, 7 Ky. Law. Rep. 204, it was said that, where a livery man who hires a team to a customer on Sunday knows that the customer is hiring it only for a pleasure trip, there is a violation of the Sunday law, and the contract is void. The principle there laid down would apply if this were a suit on the contract of hiring to recover the price agreed to be paid for the use of the horse. But, if we leave out of view entirely the contract and the breach of it, there remains the fact that the defendant committed a tort by overdriving the horse, if he thus negligently brought about its death. The fact that the contract was void did not license him to abuse the horse with impunity, and, if he committed a tort by not taking reasonable care of the horse after he got it in his possession, he is liable.

Judgment reversed and cause remanded for further proceedings consistent herewith.

TAYLOR v. PURDY et al.

For other definitions, see Words and Phrases, vol. 4, pp. 3091-3093; vol. 8, p. 7671.] 3. GIFTS (8 22*)-DELIVERY-REQUISITES. cording to the nature of the thing given; hence A delivery to effectuate a gift must be acthe gift of property, evidenced by a written instrument executed by the donor, is valid upon delivery of the instrument. Dig. § 37; Dec. Dig. § 22.*] [Ed. Note.-For other cases, see Gifts, Cent.

4. GIFTS (8 49*)-DELIVERY-INSUFFICIENCY. In an action involving title to personalty, evidence held to sufficiently establish the delivery of a deed of gift.

[Ed. Note. For other cases, see Gifts, Cent. Dig. 88 95-100; Dec. Dig. § 49.*] 5. GIFTS (§ 47*)-DELIVERY-PRESUMPTIONS. beneficiaries appeared in the possession of the Where a deed of gift in favor of infant trustee of the gift, its delivery will be presumed.

[Ed. Note. For other cases, see Gifts, Cent. Dig. 8 81-86; Dec. Dig. § 47.*] 6. GIFTS (§ 4*)-DESCRIPTION OF PROPERTY

SUFFICIENCY.

Where a deed of gift conveyed all of the donor's estate, real and personal, the description was sufficiently definite to be valid and carried with it a note in favor of the donor. Dig. §§ 3, 17; Dec. Dig. § 4.*] [Ed. Note.-For other cases, see Gifts, Cent.

Appeal from Circuit Court, Marion County. Action by John Taylor against William S. missing the petition of plaintiff to subject Purdy and others. From a judgment discertain land to execution, he appeals.

firmed.

Af

John McChord, of Lebanon, for appellant. W. H. Spragens and S. A. Russell, both of Lebanon, and C. C. Boldrick, guardian ad litem, of Lebanon, for appellees.

MILLER, J. At the September, 1909, term of the Marion circuit court, the appellant Taylor recovered a judgment against the appellee W. S. Purdy for $600; and at the January, 1910, term of the same court, Taylor recovered a further judgment against Purdy for $200. On February 4, 1911, Xerxes Purdy I, the father of W. S. Purdy, died

(Court of Appeals of Kentucky. Dec. 6, 1912.) intestate, leaving the appellee W. S. Purdy

and Mrs. Bettie Thornton as his only chil1. WILLS (§ 88*)-WHAT CONSTITUTES-DIS-dren and heirs at law. On March 27, 1911, TINGUISHED FROM "DEED."

Where an instrument contained the usual Taylor caused executions to issue upon his words of conveyance, having premises, haben-judgments, and levied them upon W. S. dum, tenendum, reddendum, condition, warranty, Purdy's supposed undivided half interest in a and covenants, and was not authenticated as a farm of 106 acres in Marion county, which will, but was acknowledged as a deed, it must had belonged to his father, Xerxes Purdy I. be accepted as a deed, the grant being in the present tense, for a will is an instrument which vests no present interest, but only appoints what is to be done after the death of the

maker.

[Ed. Note. For other cases, see Wills, Cent. Dig. 88 208-217; Dec. Dig. § 88.*

For other definitions, see Words and Phrases, vol. 8, pp. 7463-7468; vol. 2, pp. 19191924; vol. 8, p. 7630.]

It developed, however, that on July 5, 1909,
Xerxes I had conveyed his farm to his grand-
son, Xerxes II, for $2,000; the purchase
II, the purchaser, for that amount.
price being evidenced by the note of Xerxes

Furthermore, on May 28, 1910, Xerxes I had executed the following paper, known in the record as the deed of gift to wit: "Brad

fordsville, Ky., May 28, 1910. This deed of gift and conveyance, made and entered into this May 27th, 1910, by and between Xerxes Purdy, Sr., of Bradfordsville, Ky., party of the first part and Lucy Ann Purdy his wife of the 2nd part witnesseth: That the said X. Purdy, Sr., in consideration of the love and affection he bears his wife, has given and does by these presents give, grant and convey to the said Lucy Ann Purdy his wife, all the right, title and interest, now vested in him to any real estate, and all the personal estate of every kind whatever, which he now holds or may die possessed of, to have and to hold in fee simple during her natural life, and at her death to be divided equally between the children of W. S. Purdy and Mrs. Bettie Thornton, wife of Dr. Geo. Thornton, to be held in trust, and used and invested for the benefit and advantage of said children by their parents, the said W. S. Purdy and Mrs. Bettie Thornton, during the lifetime of said parents. Witness my hand this May 28th, 1910. X. Purdy, Sr." Both deeds were properly acknowledged before a notary public, and were recorded on April 8, 1911, more than two months after the death of Xerxes I. Taylor brought this action to set aside the deed to Xerxes II upon the ground that it was voluntary and had never been consummated by a delivery of the deed to the grantee, and to subject W. S. Purdy's interest in the farm to the payment of appellant's debt. The petition further alleged, in the alternative, that, if the deed to Xerxes II was valid, the deed of gift, which conveyed all the estate of Xerxes I to the children of W. S. Purdy and Mrs. Thornton, was not only procured by fraud and duress, and had never been delivered, but was ineffectual in law for any purpose, even should its delivery be conceded or established. The is sue as to duress and undue influence has been abandoned, and the case has been tried here upon the issues raised as to the delivery of the two papers, and the legal effect of the deed of gift.

gift should be treated as having been delivered, and as sufficient to establish a gift, it was nevertheless testamentary in character, and, not having been executed as a will, it failed of operation for that reason, thereby causing the property to descend as above indicated. On the other hand, the appellees insist that the deed of gift contains a good declaration in trust, and that it was delivered by Xerxes I during his lifetime to W. S. Purdy, one of the beneficiaries under the deed. The circuit court took appellees' view of the case and dismissed the petition, and from that judgment Taylor prosecutes this appeal.

[1] As to the contention that the paper of May 28, 1910, is testamentary in character, rather than a deed, and must fail for want of proper execution under the statute, little need be said. The rule is that, if the instrument has no present operation, if it intended to vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument, and good only if made and proved as a will. Rawlings v. McRoberts, 95 Ky. 350, 25 S. W. 601, 15 Ky. Law Rep. 771; Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 L. Ed. 500. In Rawlings v. McRoberts, supra, we said: "The contention of the appellants, who were the plaintiffs below, is that, although the document is couched in the form of a deed, and has the usual words of conveyance, yet it is, in fact, a testamentary disposition of the property described, and hence a will. They sue for the land sought to be conveyed to the appellees, because the writing, as a will, is not effective through lack of proper attestation under the statute. It is, of course, true that the form of the instrument is not conclusive of the intention of the maker of it, nevertheless, if the writing have all the requisites of a deed, it is a fact throwing light on the intention. Here we have grantor and grantee and the ordinary words operative of conveyance; we have the thing granted, the consideration expressed, the execuAt the time the two deeds were executed, tion, including signing, attestation, and acLucy Ann Purdy, the wife of Xerxes I, was knowledgment, delivery, acceptance, and regliving. Mrs. Purdy died, however, on July 19, istration. As Lord Coke would put it we 1910, about seven months prior to the death have the premises, habendum, tenendum, redof her husband. It is established by the dendum, condition, warranty, and covenants." proof, if not conceded, that the sale to Xer-See, also, Hunt v. Hunt, 119 Ky. 42, 82 S. W. xes II was bona fide and for a fair price. 998, 26 Ky. Law Rep. 973, 68 L. R. A. 180, He, however, paid nothing upon his purchase 7 Ann. Cas. 788. money note for $2,000, which was found among the papers of Xerxes I after his death. Appellant contends that the deed of gift of May 28, 1910, did not operate either to establish a trust in favor of W. S. Purdy and Mrs. Thornton and their children, or as a gift inter vivos, because neither the deed nor the note was ever delivered to either of them; and, since that paper was ineffectual for any purpose, one-half the estate of Xerxes I descended, under the statute, to his son W. S. Purdy, and is liable for appellant's debt. Ap

The paper under consideration is in the form of and authenticated as a deed. It is not authenticated as a will, and in our opinion was never intended to operate as a will. On the contrary, as was pointed out in Rawlings v. McRoberts, supra, the words of the grant-those which are operative of conveyance are in the present tense, and became effective immediately upon the delivery of the instrument; and, under the authorities above referred to, it must be treated as a deed.

as a gift inter vivos, there must be a deliv- and uncertain to pass anything, the court ery of the property, either actual or sym- said: "The description of the property conbolical. Payne v. Powell, 5 Bush, 249; Mer- veyed enables those who claim under it, as ritt v. Merritt's Ex'r, 9 Ky. Law Rep. 721; against George and his heirs, to identify it. Rodemer v. Rettig, 114 Ky. 637, 71 S. W. It affords a means of identification; and, if 869, 24 Ky. Law Rep. 1474; Simmonds v. George Nellman was living, he could neither Simmonds, 133 Ky. 498, 118 S. W. 304; Fox- assail the deed on the ground of fraud, nor worthy v. Adams, 136 Ky. 403, 124 S. W. 381, would he be permitted to say that, when he 27 L. R. A. (N. S.) 308, Ann. Cas. 1912A, conveyed all his estate, real and personal, 327; Stark v. Kelley, 132 Ky. 376, 113 S. W. it was so indefinite as to render the convey498; Basket v. Hassell, 107 U. S. 602, 2 Sup. ance void, for it could be shown by proof Ct. 415, 27 L. Ed. 500. aliunde what estate he had when the writing was delivered. Pond v. Bergh, 10 Paige [N. Y.] 140; Wilson v. Boyce, 92 U. S. 320 [23 L. Ed. 608]; [Parker v. Teas], 79 Ind. 235; [McCasland v. Etna Life Ins. Co.] 108 Ind. 130 [9 N. E. 119]."

[3] As to what will amount to a delivery, 20 Cyc. 1196, says: "Delivery, to be effectual, must be according to the nature and character of the thing given, and hence may be actual or constructive according to the circumstances. There must, however, be a parting by the donor with all present and future legal power and dominion over the property. The general rule is that a gift of property, evidenced by a written instrument executed by the donor, is valid without a manual delivery of the property. However, there must be a delivery of the instrument declaring the gift in order to make such gift valid." The above rule is, in effect, approved in Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 65 S. W. 607, 23 Ky. Law Rep. 800, 1101. So much of the opinion in Payne v. Powell, 5 Bush, 252, as declares that a transfer of personal property by writing alone will not satisfy the requirements of delivery was unnecessary to the decision of that case, as was explained in Rodemer v. Rettig, 114 Ky. 637, 71 S. W. 869, 24 Ky. Law Rep. 1474. If, therefore, the deed of gift was delivered by the grantor, the case comes directly within the rule above announced.

[4, 5] Upon the issue of delivery, the evidence is brief. It appears from the testimony of Reynierson, the notary who took the acknowledgement to the deed of gift, that he carried it to his office for the purpose of writing out his certificate, and then delivered the deed to W. S. Purdy, one of the trustees named therein. There is no other testimony upon this point; and, in the absence of any testimony explaining or attacking the delivery thus made by Reynierson, we must assume that he acted properly and at the direction of the grantor. Moreover, the deed appearing in the possession of the trustee, a presumption of its delivery will be indulged on behalf of the infant beneficiaries. The delivery having thus been shown, the deed operated as a gift inter vivos.

The deed under consideration is as broad in its terms as the deed in Graham v. Botner, supra. It conveyed all of the grantor's right, title, and interest in any real estate, and all the personal estate of every kind, which he then had, or might have, at the time of his death, to his wife, Lucy Ann Purdy, for life, and at her death it was to be divided equally between the children of W. S. Purdy and Bettie Thornton, for whose use and benefit it was to be held during the lifetime of their parents.

We are of opinion that the deed of May 28, 1910, operated as a gift inter vivos; and, that being true, it is unnecessary to consider whether it created a valid trust.

The judgment of the circuit court was right, and it is affirmed.

[6] Appellant contends, however, that the description of the property conveyed is too indefinite to embrace the note of Xerxes II for $2,000. We do not attach much importance to this suggestion. In Graham v. Botner, 18 Ky. Law Rep. 638, 37 S. W. 583, George Nellman conveyed to his sister by deed "all his property, real and personal"; and, in answer to the argument that the description of the property was too indefinite

Appeal from Circuit Court, Henry County. Action by Richard Thomas' administrator against the Eminence Distilling Company.