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then, the intention of the decedent, at the time these writings were drawn, as a guide in determining their character, we are constrained to hold that they were intended by him as deeds and not as wills. After his death, his children viewed them in the same light, for they never probated, or offered to probate, them. Being incomplete as deeds, they are of no binding force or effect what

ever.

* * *

[2] The only remaining question is, Does the language used by the testator confer upon the executor power to sell and convey his real estate? Upon this point the will provides: "I desire that my executor hereinafter appointed sell the home place [this is the land in question] located north of Franklin, Ky., on the Louisville and Nashville pike and invest the proceeds in good interest bearing bonds or real estate notes. I hereby appoint my brother Dave Scott as my executor empowering him to execute deed to the sale of the real estate mentioned above and to act without bond." This is an unqualified direction, first, that his executor shall make a sale of this land; and, second, that, having made the sale, he shall convey the land. Authority could not have been given in any more direct, positive, or unambiguous terms. The chancellor correctly held that the executor was empowered to make the sale and by deed convey or pass the title to his purchaser. We are further of the opinion that the deed tendered by the executor passed the fee-simple title to the land; and, appellant having failed to show any good reason why he should not accept the deed and pay for the land, the chancellor did not err in requiring him to do so. Judgment affirmed.

HINKEL & EDELEN v. PRUITT.

(Court of Appeals of Kentucky. Dec. 5, 1912.) SUNDAY (8 19*) - INJURIES TO PROPERTY VOID CONTRACT.

Though a contract hiring a horse for a pleasure drive on Sunday may have been void under Ky. St. § 1321, the owners of a horse would not thereby be precluded from maintaining an action of tort for the death of the horse from the negligent manner in which it was driven after the defendant secured possession of it. [Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 50-53; Dec. Dig. § 19.*]

Appeal from Circuit Court, Nelson County. Action by Hinkel & Edelen against T. Pruitt. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

W. H. Fulton and Geo. S. & Jno. A. Fulton, all of Bardstown, for appellants. Nat W. Halstead and Sam W. Eskew, both of Bardstown, for appellee.

HOBSON, C. J. Hinkel and Edelen own a livery stable in Bardstown. They brought this suit against T. Pruitt to recover for the

loss of a horse. The material allegations of the petition are these: "On the day of September, 1911, at the special instance and request of defendant, T. Pruitt, they hired him a horse and buggy with the understanding and agreement that he would drive said horse not more than 10 or 12 miles, but they say that said defendant, not observing said agreement, but in violation thereof, drove said horse some 34 miles or more, and so carelessly and neglectfully drove said horse as to cause same to die from said reckless and neglectful driving about one-half hour after his return to plaintiffs' stable from said drive, and plaintiffs say that the death of said horse was due to the fast and long and hard drive so recklessly and negligently made and done by the defendant, and said horse was of the value of two hundred dollars ($200), and plaintiffs have been damaged in the sum of $200 by defendant's reckless and negligent acts in the premises." The defendant filed an answer in which he denied the allegations of the petition. Afterwards he filed an amended answer as follows: "Defendant avers that he hired said horse and buggy and said horse sued for herein and mentioned and described in the petition herein on the 3d day of September, 1911; that said 3d day of September, 1911, was a Sabbath day, usuually known as Sunday, and that the only contract, understanding, or agreement which he had with the plaintiffs with reference to said horse and buggy was had, made, and done on said Sabbath day, the 3d day of September, 1911, and that he hired said horse and buggy from plaintiffs on said Sabbath day, and used said horse and buggy on said Sabbath day only, and returned it to the plaintiffs on said Sabbath day. He says that said entire transaction was made, had, and done on the Sabbath day, and that the contract made and entered into by and between the plaintiffs and this defendant with reference to the hiring of said horse was all made on said Sabbath day, or Sunday, and that at the time said defendant hired said horse and buggy from the plaintiffs that he notified said Edelen from whom he hired said horse and buggy that he was hiring said horse simply for a pleasure drive, and not as a matter of necessity at all, and the plaintiff Edelen well knew that the purpose for which this defendant was hiring said horse and buggy was a matter of a pleasure drive on said Sunday afternoon. And he says that said plaintiffs hired said horse and buggy to this defendant simply for a pleasure drive, and same was to be used by defendant for a pleasure drive, and not in a case of, or for any matter of, necessity at all, and all of this the plaintiffs well knew at the time they hired the said horse and buggy to this defendant, and know same now." The plaintiffs demurred to the amend

ed answer. The court overruled the demurrer, and, the plaintiffs standing upon their demurrer, their petition was dismissed. They 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.

on any other day of the week, just as they would have produced it had they occurred without any contract of bailment whatsoever. 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 defendant had taken the plaintiff's horse to graze, and the horse had died from being subjected to a disease by negligence of the defendant; but he insisted that he was not liable for the death of the horse because the contract was made on Sunday. Rejecting this contention, the court said: "Having taken the horse into his possession, though under a void contract, he yet owed a duty to the plaintiff to exercise some degree of care over it. He was bound to give the plaintiff notice of the disease, so that the plaintiff might have removed the property, or have taken some precaution himself, or to have refused to put the horse in the pasture there." In Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. 292, the plaintiff delivered horses to a carrier on Sunday. The horses were lost. When sued, the carrier defended on the ground that the contract was made on Sunday. In answer to this contention the court said: "But it is not material whether the contract made was good or bad. It was enough to entitle the plaintiff to recover, that the defendant, being a common carrier, had in his custody for transportation the plaintiff's property, and by his negligence In or in violation of duty it was lost. This gave the plaintiff a right of action wholly disconnected from the statute relating to the observance of Sunday. Allen v. Sewall, 2 Wend. [N. Y.] 328." In Hughes v. Atlanta Steel Co., 136 Ga. 511, 71 S. E. 728, 36 L R. A. (N. S.) 547, Ann. Cas. 1912C, 394, a servant who was working on Sunday in violation of law was injured by the incompetence of a fellow servant employed by the master also in violation of the Sunday statute, and the master relied on the statute in bar of a recovery. It was held that the servant could recover as the violation of the Sunday law was not the efficient cause of the injury; and in a note thereto a number

The gist of the plaintiffs' cause of action is the defendant's negligent driving of the horse. Their cause of action does not necessarily rest on the contract between them and the defendant. It rests on the tort which the defendant committed in abusing the horse after he got it in possession. The fact that he got the horse in possession on Sunday does not excuse him if while so in possession he by his negligence killed the horse. A man who has the possession of the property of another on Sunday is as much under obligation not to mistreat it as on any other day. If the defendant had gone to the plaintiffs' barn and taken the horse out without any contract with them, and so driven it as to kill it, he could not excuse himself on the ground that the wrong was done on Sunday. But he was as much bound to take reasonable care of the horse when he got it on Sunday under a void contract as he would be if he had so gotten it on any other day. The plaintiffs' consent for him to use the horse on Sunday simply gave him the rightful possession of the horse; but, though he was rightfully in possession, when he abused the horse, he committed a tort for which he is liable. Newbury v. Luke, 68 N. J. Law, 189, 52 Atl. 625, the court in disposing of a case like this said: "In the present case the defendant argues that the plaintiff's right of action rests upon a contract of bailment made on Sunday, and, as that contract is void, the action must fail. The fallacy is exposed by reference to the fundamental maxim-'causa proxima, non remota, spectatur.' The Sunday hiring and the Sunday driving happened to furnish the conditions under which the death of the horse was occasioned. But its death was the direct and natural result of the overdriving and abuse, and of these alone. These causes would have pro

LIVERY.

To constitute a gift inter vivos, there must be a delivery, either actual or symbolical. [Ed. Note.-For other cases, see Gifts, Cent. Dig. 88 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 violation 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.

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 on 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 In court and rests upon sound principle. 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 ou 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 negliThe fact gently brought about its death. 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.

(Court of Appeals of Kentucky. Dec. 6, 1912.) 1. WILLS (§ 88*)-WHAT CONSTITUTES-DISTINGUISHED FROM "DEED."

Where an instrument contained the usual words of conveyance, having premises, habendum, tenendum, reddendum, condition, warranty, and covenants, and was not authenticated as a will, but was acknowledged as a deed, it must 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. 208-217; Dec. Dig. § 88.*

For other definitions, see Words and Phrases, vol. 4, pp. 3091-3093; vol. 8, p. 7671.] 3. GIFTS (8 22*)-DELIVERY-REQUISITES. A delivery to effectuate a gift must be according to the nature of the thing given; hence the gift of property, evidenced by a written instrument executed by the donor, is valid upon delivery of the instrument. Dig. 8 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 (8 47*)-DELIVERY-PRESUMPTIONS. Where a deed of gift in favor of infant beneficiaries appeared in the possession of the trustee of the gift, its delivery will be presumed.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. 88 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. [Ed. Note.-For other cases, see Gifts, Cent. Dig. 88 3, 17; Dec. Dig. § 4.*]

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

firmed.

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 intestate, leaving the appellee W. S. Purdy and Mrs. Bettie Thornton as his only children and heirs at law. On March 27, 1911, Taylor caused executions to issue upon his judgments, and levied them upon W. S. Purdy's supposed undivided half interest in a farm of 106 acres in Marion county, which had belonged to his father, Xerxes Purdy I. It developed, however, that on July 5, 1909, Xerxes I had conveyed his farm to his grandson, Xerxes II, for $2,000; the purchase price being evidenced by the note of Xerxes II, the purchaser, for that amount.

Furthermore, on May 28, 1910, Xerxes 1

For other definitions, see Words and Phrases, vol. 8, pp. 7463-7468; vol. 2, pp. 1919- had executed the following paper, known in 1924; vol. 8, p. 7630.] 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.

At the time the two deeds were executed, Lucy Ann Purdy, the wife of Xerxes I, was living. Mrs. Purdy died, however, on July 19, 1910, about seven months prior to the death of her husband. It is established by the proof, if not conceded, that the sale to Xerxes II was bona fide and for a fair price. He, however, paid nothing upon his purchase 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.

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 execution, including signing, attestation, and acknowledgment, delivery, acceptance, and registration. As Lord Coke would put it we have the premises, habendum, tenendum, reddendum, condition, warranty, and covenants." See, also, Hunt v. Hunt, 119 Ky. 42, 82 S. W. 998, 26 Ky. Law Rep. 973, 68 L. R. A. 180, 7 Ann. Cas. 788.

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. therefore, the deed of gift was delivered by the grantor, the case comes directly within the rule above announced.

If,

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.

ING CO.

(Court of Appeals of Kentucky. Dec. 4, 1912.) 1. DEATH (§ 76*) — CAUSE - SUFFICIENCY OF EVIDENCE.

In an action for a boy's death claimed to have been caused by fever and spinal meningitis, resulting from water negligently polluted by defendant distilling company, evidence held not to show that the polluted water proximately caused the boy's death.

[4, 5] Upon the issue of delivery, the evi- THOMAS' ADM'R v. EMINENCE DISTILLdence 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.

Dig. § 94; Dec. Dig. § 76.*]
[Ed. Note. For other cases, see Death, Cent.

2. DEATH (8 76*) EVIDENCE CAUSE OF

DEATH.

It must appear, beyond a mere possibility or a bare probability, that the alleged negligence caused decedent's death in order to re

cover.

[Ed. Note. For other cases, see Death, Cent. Dig. 894; Dec. Dig. § 76.*] 3. EVIDENCE (§ 596*)-SUFFICIENCY.

Plaintiff must establish his cause of action by evidence which does more than support a mere guess as to the existence of the facts establishing liability.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.*]

[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"; Appeal from Circuit Court, Henry County. and, in answer to the argument that the de- Action by Richard Thomas' administrator scription of the property was too indefinite against the Eminence Distilling Company.

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