Wells v. Wells' Exors. Estates (Decided March 12, 1912.) Appeal from Madison Circuit Court. Settlement of-Trustee-Action to Surcharge Settlement of. In an action to surcharge the settlement of a trustee, evidence examined and held that the lower court did not err in finding that the trustee had accounted to appellant for all that was due him. In addition to the evidence heard, the judge of the lower court went to the Clerk's office and found an additional settlement, made six years after the one upon which this action is founded, and his finding in this case is entitled to more weight than is usually ascribed to a judgment of a lower court. J. C. & D. M. CHENAULT and R. H. CROOKE for appellant. OPINION OF THE COURT BY JUDGE NUNN-Affirming. On March 30, 1888, H. N. Wells, the father of appellant and C. T. Wells, departed this life testate. For some unexplained reason that part of his estate devised to appellant, W. B. Wells, was placed in the hands of C. T. Wells as trustee. He made appellant, his daughter, Mrs. Cobb, and C. T. Wells his executors. Appellant and Mrs. Cobb failed to qualify, however, and it seems that C. T. Wells alone qualified and settled the estate, and it appears that he did so satisfactorily to all parties in interest. Upon a settlement of the estate in 1888, it appears that appellant's part, after deducting what he bought at the sale and some other small amounts, was $1,080.92, and at the close of that settlement it was stated in writing that this amount was invested in real estate for W. B. Wells. There is nothing in the will, however, requiring it to be so invested, and, in fact, it was not. T. C. Wells and appellant came to an agreement whereby this fund was to be invested in land, but when they went to survey the land a disagreement arose and they abandoned the idea of investing it in land and made an agreement that T. C. Wells was to pay the money to W. B. Wells along from time to time, as he might need it to support himself and family. It appears that W. B. Wells had a family consisting of his wife and eight or nine children, and that he was hardly able to support himself and family upon the small farm on which they resided. T. C. Wells lived until 1907, and there appears to have been no trouble or litigation between them. This action was brought about two years after his death and was based upon the settlement of 1888 and sought to recover the $1,080.92 with its interest. Appellant does not give T. C. Wells credit in his petition for anything. The executors of T. C. Wells answered denying that they were indebted to appellant in any sum, and filed with their answer many receipts, accounts and checks from T. C. Wells payable to W. B. Wells of different dates, extending from 1888 to about 1901 or 1902, and alleged that at that date T. C. Wells had overpaid W. B. Wells to the extent of four or five hundred dollars; that after that date he refused for that reason to pay him any more. Depositions were taken by the parties. Appellant and his witnesses tend to show that no money or other thing had been paid to him by T. C. Wells since the settlement of 1888. Appellee's witnesses tend to show that he had been paid in money, checks and merchandise, a large amount between these dates and several witnesses testified that the trustee, T. C. Wells, from 1900 to 1902, from time to time, refused to pay anything more to W. B. Wells, stating to him that he had already more than accounted to him for all that ever came to his hands. They proved by one witness that upon a certain occasion before the last named date, W. B. Wells returned from town, the place where T. C. Wells lived, and his wife asked him if he had received any money or corn and he answered no and said to his wife, "How can you expect me to get anything when there is nothing due me?" There were other statements in the testimony indicating that he had gone to town to get help from his brother, T. C. Wells. It is true all these statements were denied, but it was shown and admitted that T. C. Wells had failed and refused to pay him any money or to furnish him any means from that time to his death. It was also shown by the testimony, and admitted by appellant, that his farm was poor; that he was hardly able to support himself and family from it and that he needed assistance during all that time. The case was submitted, and the judge of the court, not being satisfied with the record as presented, went to the county clerk's office and turned the records of settlements leaf by leaf, and found a settlement made by T. C. Wells as trustee of W. B. Wells, on December 19, 1894, made six years after the settlement upon which this action was founded. In that settlement, T. C. Wells was charged with $1,080.92 and with $510.38 as interest and was given credit for vouchers filed of $1,201.42, which left a balance due from the trustee of $389.88. The clerk had failed to index this settlement. It appears that one of the attorneys who is representing appellant was the county judge before whom T. C. Wells made the settlement, but it is evident that appellant and all those who once knew about the settlement had forgotten it. It is peculiar, however, that appellant failed to remember having received from his trustee after the settlement of 1888, the many items composing the $1,201.42, and the few items presented by the executors that he has received since that date. Another strange thing is that he suffered his trustee, C. T. Wells, to hold this fund from 1888 to his death in 1907, when he was in distressed circumstances, without ever calling upon him, as he claims, for any money or other assistance. Further, appellant did not bring his action in 1901 or 1902 when his trustee refused him any aid, nor did he bring it during the lifetime of C. T. Wells. Why did he delay bringing the suit for two years after the death of his trustee? These facts and circumstances induce us to believe that the lower court did not err in finding that the trustee had accounted to appellant for all that was due him. The lower court perhaps knew the parties and witnesses and was more able to give them the credit to which they were entitled as witnesses. This is evident in this case, for during the trial, the judge, not being satisfied with the record as it appeared, went to the clerk's office and made a search for and found an additional settlement; and his finding in this case is entitled to more weight than is usually ascribed to a judgment of a lower court. For these reasons the judgment is affirmed. L. F. Fightmaster, Grace U. Fightmaster, his wife, and Nancy E. Foster v. James Taylor and Joe Taylor. (Decided March 12, 1912.) Appeal from Owen Circuit Court. 1. 2. Passways-Permissive Use-Changing Character of Use-Notice. JOHN W. DOUGLAS for appellants. J. H. SETTLE for appellees. of OPINION OF THE COURT BY JUDGE LASSING-Affirming. James and Joe Taylor own a farm in Owen County on the Owenton and Stamping Ground turnpike road, and appellants own a farm lying back of the Taylor farm. Appellants for many years, it appears, passed out from their house over the Taylor farm to said pike. They had another outlet the other way, but that was on to a creek road which was much of the year rough and not of easy passage, while the outlet through the Taylor farm was along a ridge and practically level. Taylor closed up this passway and refused to permit appellants to use it. Thereupon they instituted a suit in which they sought to enjoin the Taylors from interfering with their use of this outlet. The Taylors defended and pleaded that it was merely a permissive use; and upon this issue the proof was taken and the case tried out. The Chancellor found in favor of the defendants and dismissed the petition, and the plaintiffs appeal. The evidence shows that seventy or eighty years ago, when the land of which these farms is composed was practically all in timber, those living back of and beyond the land now owned by appellants passed out from their places to the road over the land owned by appellee. But according to the testimony of appellant, Mrs. Nancy E. Foster, who has been intimately acquainted with the land for seventy or eighty years, and whose father was one of those who helped to open up this passway, it was at all times merely a permissive use. And the proof shows further that for as much as seventeen years before this litigation was commenced the Tay lors, and those under whom they claim, have at intervals locked the gates and closed the passway to the use of appellants and all others. The law is well settled that the permissive use of a passway for any number of years does not deprive the owner of the land of the right to close it at any time; and when the use is originally acquired by permission, the character of the passway is established, and such use continues to be permissive until something is done bringing notice home to the owner of the land that the character of the use has been changed. Hall v. McLeod, 59 Ky., 98; Conyers v. Scott, 94 Ky., 123. It is only where a claimant has had an uninterrupted use of a passway for a great number of years that a grant will be presumed. Bowman v. Wickliffe, 54 Ky., 84; Beall v. Clore, 69 Ky., 676. The evidence in this case shows beyond question that the passway in dispute was never claimed by those who used it as a matter of right, but at all times with the consent or permission of the owner of the land over which it ran. The Chancellor correctly held that plaintiffs were not entitled to the relief sought. Judgment affirmed. 1. 2. 3. Overstreet v. Commonwealth. (Decided March 12, 1912.) Appeal from McCracken Circuit Court. Criminal indict. Law-Indictment-Arson-Houseburning.—An ment that in the accusative part charges that the crime is arson, but in the descriptive part shows that it is the statutory offense of houseburning and not the common law offense of arson, is good on demurrer. Criminal Law-Indictment-Essential Requisites of.-An indictment should contain the name of the party charged, the offense charged, the county in which it was committed, and a statement of the acts constituting the offense in ordinary and concise language. Criminal Law-Indictment-Sufficiency of.—An indictment may contain more than is necessary or it may be phrased in inapi words, or the sentences be ungrammatically expressed or the spelling not good; but, if when considered as a whole the charge is stated with sufficient clearness and certainty to enable the accused to know what he is charged with, and to enable the |