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A board bill filed by Simon E. Grimes,, upon behalf of the infants, to litigate the matafter exceptions had been filed to its allow- ter. It is certainly obvious that under our laws ance, was later withdrawn, and the proceeds they could not have instituted an action on beof the sale divided in accordance with the in the estate of Carrie N. Shaw, nor could they,

half of the infants to determine their interests judgment. The total amount collected from the per- this litigation, so as to give them the power to

with any better right, bring such matters into sonal property in Indiana, including divi- represent the infants in reference thereto. The dends and interest, amounted to $18,052.27, infants were not in court, upon that matter, utject to disbursements and costs of and are not bound, in any way, by such action $1,319.18, leaving a net sum of $16,733.09, by the guardians ad litem, or by the judgment plus about $2,000 of real estate, to be dis- of the court resulting therefrom." tributed among the devisees. Included in the disbursements is an item of $160.50, set court were corrected by a motion and peti

Thereafter the errors pointed out by this aside to the widow.

In the report of the master, Minnie E. tion filed in the circuit court by the present Grimes was charged with the sum of $8,956.- appellant as guardian for the infants, and 68, representing advancements of $6,377.72

from a judgment adverse to their contentions and $2,578.96 interest. The infants were

said guardian prosecuted this appeal, as charged with advancements of $13,380.57, in- well as appeals from the judgment of Octo terest $12,130.81, a total of $25,511.38, subject ber 5, 1914, ordering a sale of the real estate to a credit, including interest thereon of in Kentucky, and from the judgment of Jan$2,760.79, leaving a net sum charged to them uary 29, 1915, confirming the report of sale. of principal and interest $22,750.59.

It is first urged that, Josiah Shaw being To equalize the widow and Minnie E. a citizen and resident of Crawłord county, Grimes with the aggregate charged to the Ind., at the time of his death, the circuit infants on this basis, Minnie E. Grimes court of that county had original and exclushould receive $13,793.91, and the widow, sive jurisdiction to settle his estate as be excluding the amount set apart to her tween his creditors, widow, and children. $22,750.59, a total of $36,544.50.

A motion to file an intervening petition raisIf, therefore, it was proper to charge in- ing this point was overruled. terest on the advancements, the net amount

[1, 2] Testamentary capacity as to personin the hands of the Indiana administrator alty is governed by the law of the testator's of $16,733.09 lacked $19,703.46 of being suffi- domicile, and personalty should be distributcient to pay Minnie E. Grimes and the wid- ed accordingly. Fletcher's Adm'r v. Wier, ow enough to equalize them with the infants, etc., 7 Dana, 345, 32 Am. Dec. 96; Atchi

From the proceeds of sale of the four son's Heirs v. Lindsey, 6 B. Mon. 89, 43 Am. Meade county farms amounting to $71,400 Dec. 153; 11 R. C. L. 445. The construction there was first deducted by the lower court and effect given a will by the courts of a testhe sum of $36,514.50, being the sum neces

tator's domicile are everywhere recognized as sary upon the basis adopted to equalize the binding. This is on the theory that the situs widow and Minnie E. Grimes with the in- of such property is supposed to be where fants, and which left a balance of $34,855.50 will is presumed, in the absence of anything

the owner has his domicile. And while a for distribution among the devisees.

The master's report was confirmed with to the contrary, to have been drawn in acout exceptions, and no appeal was then prose- cordance with the laws of the testator's cuted from that judgment. Thereafter Min- clomicile, and will be interpreted accordingnie E. Grimes and her husband filed an as- ly, its effect and validity regarding the dissignment from the widow of her interest in position of real estate or immovable property the purchase bonds, and sought credit upon

so situated or the creation of any interest the sale bonds of S. E. Grimes, the purchaser, therein will depend upon the lex rei sitä. for the amount due the widow, who had died All instruments affecting the title of real esafter the execution of the alleged assignment. tate situated in this state must be governed

The guardians ad litem for the infants as to their execution, construction, and legal filed exceptions to this assignment, claiming sufficiency exclusively by the laws of this it was void on the ground that the widow commonwealth, and not by the laws of a siswas 80 years of age when she executed it a

ter state or foreign country, wherein the makfew days before her death, that it was with er may reside at the time of its execution. out valuable consideration, and she did not

Some courts recognize an exception to this have sufficient mind to execute this assign- rule where it is sought to ascertain the inment, and further that it was procured by tention of the testator solely from the lanfraud and undue influence. Issue was joined guage used in the will, in which case the law upon the question of the validity of the as

of the testator's domicile or the lex domicilii signment, and a jury trial had thereon, re

controls. Sneed v. Ewing, 5 J. J. Marsh. sulting in a verdict sustaining its validity. 460, 22 Am. Dec. 41; Houser v. Paducah From this judgment the guardians ad litem Lands Co., 157 Ky. 252, 162 S. W. 1113; appealed. See Shaw v. Shaw's Adm'r, 174 United States v. Fox, 94 U. S. 315, 24 L. Ed. Ky. 398, 192 S. W. 524, in which the court, 192; Peet v. Peet et al., 229 Ill. 341, 82 N. in dismissing the appeal, held that the guard" E. 376, 13 L. R. A. (N. S.) 780, 11 Ann. Cas. ians ad litem did not have the right or pow- 576; Jacobs v. Whitney, 205 Mass. 477, 91 er to question on behalf of the infants the N. E. 1009, 18 Ann. Cas. 576; 1 Redfield on validity of the assignment, and were without Wills, 398, and Page on Wills, $ 28. right to prosecute the appeal in their behalf;

[3] It is argued by counsel that if interest the court saying:

is not charged on the advancements, and the “Whatever, if any, rights these infants may

widow is charged with the sum of $160.50, have in the estate of Carrie N. Shaw were in representing personalty set aside to her, no wise involved in this case, and the guardians there would be sufficient funds in the hands did not have the power to bring such a matter of the Indiana administrator to pay the into this action, so as to give them the right, I widow and Minnie E. Grimes an amount suf

(218 S.W.) ficient to equalize them with the total ad-, 399.40; adding to this the cost of the monvancements to the infants, and hence a sale ument, $210, testator states the amount in of the Meade county property was not nec round figures as $12,640. Immediately folessary. As to any question involving real es- lowing the said last-named amount testator tate located in Kentucky the courts of this adds the words, “and inst.," from which it is state are not bound by any decision of the manifest he intended to charge interest on Indiana court.

the advancements from the date that he The right to charge interest on advance found the aggregate as above stated, to wit, ments is one of the main questions involved September 3, 1907. But the master in his here. In the will of Josiah Shaw it is pro report charged interest on the several advided:

vancements from the dates when made, be. *Second. I give and devise all my estate of ginning as far back as 1900, and in some whatsoever kind, real personal and mixed to my instances the items of interest are greater beloved wife Carrie N. Shaw, one third (1/3) than the principal. That the master erred in and to my grandchildren, Ava Loraine and Ly- so calculating the interest is manifest, and man Jr. Shaw children of my son Lyman P. | in approving this report the lower court fell Shaw one third (1/3) and to my daughter Min- into a like error. Testator unquestionably nie M. Grimes, wife of Simon E. Grimes one

had the right to charge the father of these third (1/3) they to share and share alike, my infants with interest on the advancements said grandchildren Ava Loraine and Lyman Jr. taking one equal share, provided that there made. This is clear from the provisions of shall be charged against and deducted from the will. It is equally clear that he did not the share of my said grandchildren, Ava Lo- intend to charge this interest from the time raine, and Lyman Jr. any all sums of mon the advancements were made, because he has ey which I have already advanced to or paid carefully totaled these several items, and ont for or shall hereafter advance to or pay fixed September 3, 1907, as the date from out for my son Lyman P. Shaw, their father, which interest was to run, and the infants which may be shown by his note or notes and should be charged interest from this date my book account of the same charged against only, and not as allowed by the master from him, provided, also that there shall be charged the several dates when the money was paid against and deducted from the share of my daughter Minnie M. Grimes, any and all sums

or advanced. of money which I have already advanced to or Appraisers appointed by the Crawford cirpaid out for or shall hereafter advance to or cuit court fell into a similar error in chargpay out for her or her said husband Simon E. ing interest. From their report, a copy of Grimes as may be shown by his note or notes which is found in the record, they reached and my book account of the same charged exactly the same total as did the master in against him." "It is my desire and I direct that my beloved Minnie E. Grimes with $22,750.59 and $8,

the court below, charging the infants and wife, and my two grandchildren, Ava Loraine and Lyman Jr. they taking one share, and my 956.68, respectively, which includes the prindaughter Minnie M. Grimes shall be made equal cipal and interest. No exceptions were filed in the final distribution of my estate."

to this report.

[6] It is claimed that evidence of or conThe account book referred to is copied cerning the account book is inadmissible. In into the record, and, after enumerating the various advancements to Lyman P. Shaw, 635, is cited in support of this contention.

re Greenwood's Estate (Mo. App.) 208 S. W. veginning in September, 1900, and continuing This is a decision of the Kansas City Court through July, 1908, the last being an item for of Appeals. The case is not in point, because burial expenses, there appear these notations: there the will of the testator made no effort

“1907 Sept. 3. The above account detter & to charge the devisees with advancements. credit both addete balance due J. Shaw and The executor charged one of the devisees $12.399.40 adblow $12,640.00 and inst. "1909 Jan. 20. To monument stone paid

with advancements to her as shown by an Taylor to be added to above $240.00.

account book, reference to which was not "The above is codicil to Will, Lawyer Judg made in the will, and the court held that the Cooke said no codicil nesary to Will”

entry made in the book, not having been [4] Where there is no provision in a will will, was a self-serving statement, and there

contemporaneous with the execution of the providing for the payment of interest on an

fore inadmissible. In the instant case the advancement, it is a rule of universal ap- testator expressly directed, in the second plication that interest will not be chargeable clause of his will, that the infants and their thereon. 18 C. J. 931; Slaughter v. Slaugh- father and Mrs. Grimes be charged with adter, 21 Ind. App. 641, 52 N. E. 991.

vancements as shown by his book of account. Ás stated by the author in 40 Cyc. p. 1924, it was his evident intention to make this an advancement being in the nature of a gift, account book a codicil to his will—he so no interest is to be charged in determining states in an unsigned memorandum in the its amount in the absence of an express pro- book itself-he unquestionably had the right vision to that effect in the will, which, of

to refer to said book as evidence of the adcourse, it is competent for the testator to vancements with which the devisees were make. See, also, Page on Wills, $ 788.

chargeable, and it is quite certain he in[5] It will be seen by the second clause of tended the notation as to interest as a necthe will that testator mentions advancements essary part of these advancements. made to the father of the infants, and refer

[7] It is next urged that the judgment conence is made to certain notes and the book firming the sale of the four farms was void. of account of the sum charged against him.

It is alleged in the petition thatIn this book testator has totaled the amount

"Said four tracts of land are in their (devof said advancements, and fixed the same at isees') possession, and cannot be divided be $12.640, which includes the proportion charge tween them under and in accordance with and able to the son for the erection of a non

so as to meet the requirements of the last ument. The totals of the items being $12,- will of said decedent, without materially im

218 S.W.-29


pairing the value of said land and without ma ord convinces us that the statute has been terially impairing the value of the interest of complied with. each of the plaintiffs therein.”

[12] Appellant has properly proceeded in Section 490, subsec. 2, of the Civil Code, its endeavor to set aside the several judg. provides that a vested estate in real prop-ments appealed from. Both the master and erty, jointly owned by two or more persons, the lower court approved the allowance of may be sold by order of a court of equity, $160.50 to the widow-this is represented by in an action brought by either of them, certain personalty taken by her. In so dothough the plaintiff or defendant be of un- ing they erred, because the widow was one sound mind or an infant, if the estate be of the devisees under the will and was enin possession and the property cannot be titled to one-third only of the estate, and her divided without materially impairing its val- assignee could not claim any further inter. ue, or the value of the plaintiff's interest est therein, and in so far as the allowance of therein. We think the foregoing allegation a this item affects the infants' one-third intersufficient compliance with the Code provision. est in the estate it must be disallowed. Up

The lower court held that the lands on a return of the case the infants will be could not be divided between the devisees so allowed their one-third of this $160.50. as to permit them to share equally in the The funds in the hands of the executor division thereof, without materially impair- must be first exhausted in the adjustment ing its value and the value of the devisees' of the advancements, and so applied as to interest therein.

make the beneficiaries equal so far as possiWhile the allegation as to divisibility was ble. The infants should be charged with insomewhat involved, and the questions pro- terest froin September 3, 1907, on all advancepounded the witnesses on this issue were com- ments made prior to that date to them or to plicated, there was a sufficient compliance their father, and not from the several dates with the Code provision in each instance. of the payments as allowed by the master.

[8] But the proof is not satisfying. Two [13] There is no provision in the will or witnesses say the land could not be divided account book authorizing the allowance of without materially impairing its value or the interest on any credits to any of the bene value of plaintiffs' interest therein; one wit- ficiaries, and none will be allowed. ness testifies to the contrary. Before a court [14] It testator's expressed desire orders a sale of real property in which in that the persons mentioned in his will should fants have a joint interest, the necessity for share equally in the division of his estate, the sale must be shown; that is, its indivisi- and, though no cross-appeal was prosecuted, bility must affirm:tively appear. As said in it would be inequitable to charge the infants McFarland v. Garnett, 8 S. W. 17, 10 Ky. with interest on advancements from a fixed Law Rep. 91:

date and allow the ruling of the master to "Undoubtedly, a tract of land, containing as

stand charging Minnie E. Grimes with inmany as 106 acres, may be divided without ma terest on the several advancements to her terially impairing its value. Prima facie, it is from the several dates thereof. In regard divisible without materially impairing its val- to interest on advancements, all will be dealt ue, and the burden of proof is on the party con- with alike, and Minnie E. Grimes will be tending contrariwise."

charged with interest from September 3, In Cherry v. Cherry, 162 Ky. 245, 172 S. W. 1907, on all advancements to her or her hus505, it was said that 159 acres and a frac- band prior to that date. The note dated tion of an acre could be divided into three September 22, 1911, by its terms 'bears interparts. See, also, Talbott v. Campbell, 23 Ky. est from its date. As to other items, such Law Rep. 2198, 67 S. W. 53.

as improvements, rents, timber, and interest [9] In the instant case, the land owned (except as herein mentioned), these are referby decedent comprised a total of 1,274 acres, red to the lower court for adjustment. The purchased by him as four separate farms, re- present state of the record renders it imposspectively, of 675, 429, 124, and 46 acres. It sible for us to decree a proper settlement would seem this land can be divided among thereof. those entitled thereto without injury. The So much of the land shall be ordered sold, proof does not convince us it cannot be done. perhaps one only of the original farms, or The evidence was not sufficient to authorize a two of the farms, if need be, as may be neces. sale of the land on the ground of indivisibility. sary to put the beneficiaries upon an equal

[10] In any event, before a division is footing. made, or sale of the real estate ordered, the For the reasons given, the judgments appersonalty should be first exhausted. It is pealed from will be reversed, the sale of the necessary, of course, under the provisions of 1,274 acres set aside, a new trial ordered, the will, that to equalize the three shares the and for further proceedings consistent hereadvancements must be reckoned with. Util- with, izing the amount in the executor's hands for this purpose, which should first be done, it will doubtless be found that the balance necessary to make the three parts equal will

CRAIG V. WILEY'S ADM'R et al. not be so great, but what an adjustment can be made without impairing the value of the (Court of Appeals of Kentucky. Jan. 16, 1920.) farm as a whole. It may be that, by disposing of only one of the original farms, suf- BILLS AND NOTES (ww 527(1)-FINDING OF PAYficient proceeds will be derived to equalize

MENT OF NOTE NOT SUSTAINED BY EVIDENCE. the beneficiaries and thus leave intact the

In an action to recover a balance due on remaining farms.

notes, a finding that the notes were paid held [11] It is next urged that the power to sell not sustained by the evidence. infants' land is purely statutory, and if the statute is not complied with the sale is void. Appeal from Circuit Court, Carlisle This is true, but an examination of the rec- 'County.

(218 S.W.) Action by E. E. Reid against H. L. Wiley's | above I have this day sold unto Geo. E. Petty Administrator and others. Plaintiff dying an undivided one-half interest in a stock of during the pendency of the action, it was merchandise consisting of fixtures, dry goods, revived in the name of his executrix Daisy boots and shoes and all goods of any kind and

notions, gents furnishing, coats, hats, caps, Ellen Reid Craig. Judgment for defendants, character belonging to the stock now being run and plaintiff appeals. Reversed and re

in the storehouse of H. L. Wiley in the town manded.

of Arlington; Kentucky, said stock is to be Bennett, Robbins & Robbins, of Clinton, deeds to said lands are received and after which

controlled and run by E. 0. Reid until the for appellant.

time said stock is to be moved by said E. (). John E. Kane, of Bardwell, for appellees. Reid and Geo. E. Petty to Searcy, Arkansas, CLAY, C. On May 8, 1895, E. O. Reid & entire stock by mutual agreement on said sale

and run by them with a view to selling out the Son sold to H. L. Wiley a stock of merchan- and not run nor put up in Searcy with a view dise at Arlington for the sum of $7,994.22. to continuing or keeping up a partnership busiFor the purchase price Wiley executed to ness unless by further agreement. Reid & Son four promissory notes, one for “Arlington, Kentucky, this December 15th, $1,920.81, due September 1, 1895, one for 1896. $1,920.81, due December 1, 1895, one for $2,


E. O. Reid.

Geo. E. Petty. 074.47, due in one year, and the last for $2,228.13, due in two years. The four notes to the above described lands received dated De

"Deed from Geo. E. Petty and son C. Petty were secured by a mortgage on the stock of cember 17—96, before Geo. T. Petty, J. P. goods, and also on several houses and lots.

"E. O. R." The first two notes were paid and canceled.

On “Stock and Cash Book” from October In order to secure the last two notes Wiley, on January 6, 1896, executed another mort. 26, 1896, kept by H. L. Wiley, appears the gage on a lot of land, the mortgage stating following item: that there was then due on the last two “Feb. 13/97. By note of date May 8/95 notes the sum of $3,183.85. E. O. Reid died due May 8/97, to be delivered to Wiley as of in September, 1899. Wiley died in 1911. On May 8/97, 2,228.13" May 1, 1912, E. E. Reid, the surviving mem

"March 5 1897 ber of E. O. Reid & Son, brought suit against “E. O. Reid Clinton Ky Sir H. L. Wiley's administrator and others, to

“Your letter got in this ev. will come over recover the balance due on the $2,074.47 tomorrow or Sunday, but can see no use of me and the $2,228.13 notes, and to enforce the coming over there, as we will have to do what

ever is done here, or by mail, proximating the mortgage lien by which the notes were se

note we owe to Earnest and the money you cured. The defendants pleaded payment, have advanced on debts of H. L. Wiley & Co • limitation, and other defenses. During the at 6150.00 and letting the Pettie matter but pendency of the action E. E. Reid died, and 3760.00 and putting out goods enough to make the action was revived in the name of Daisy | 2000.00 additional credit on those two items Ellen Reid Craig, the executrix and sole would leave 390.00 or thereabouts, and about devisee of E. E. Reid. The case was refer- | 1500 in goods to put in Carman hands on comred to a special commissioner, who reported mission, out of which the above bal could be that the notes sued on had been paid, and it be, we could give note for that balance and

paid, and for your assistance if any assistance that there was a balance due from Reid & fix it so we could meet it and you could use it Son to Wiley. On final submission the ex-making it in 2 or three installments The ceptions to the commissioner's report were Flegle note & co on the small mortgage note, overruled, and judgment rendered, dismissing and then we have the note 2228, not yet due to the petition. Plaintiff appeals.

contend with, Figering that the notes and acts The principal parties to the transactions will pay the Cairo and Mayfield notes, and if involved in the action died without testify we can arrange the matters in this way and ing, and the evidence consists of account succeed in procuring credit in the market will books, letters, receipts, and other documents shoes, 1. the hats and 42 the dry goods & dry

soon pay you out. If you will let us have the found in the possession of the parties. In goods notions on something after the above addition to a written agreement by Wiley to plan, we can put your goods for the present keep the merchandise insured for the sum in the back room, and keep them in showing of $4,000, and an inventory showing the val- shape or pack them in boxes after we get some ue of the goods to be $7,911.21, the material new goods in to get boxes. If you are favora

ble to this idea write me, so that can see Gus, exhibits are as follows:

What do you think of making stile of firm, “For and in consideration of the note of Carman & Wiley, as to better than a new name Geo. E. Petty, for the sum of $775.00 @ 8 entirely. We can arrange for about 500.00 per cent. interest from date due and payable cash to put in new stuff. Write me. twelve months after date executed this day


H. L. Wiley." to E. 0. Reid and the further consideration of "This is to certify that in the transactions of the following lands, to wit: [Here follows de H. L. Wiley & E. 0. Reid under the firm name scription of the various tracts of land)--making of H. L. Wiley & Co,that H. L. Wiley received a sum total of $1,280.13 figured at $2.985.00, all benefits from said concern & was to settle all of which land said Geo. E. Petty agrees to all debts, said E. 0. Reid having no further inconvey to E. 0. Reid with covenants of gen- terest than to get his money back & interesteral warranty, and in consideration of thel & it now appears that there is one note left


& due Alexander County Nti Bank for $400,00 “Total amount of James E. Gholson notes due on or about Jany 11th/98 signed by H. L. | for and in Hickman County Ky-above list Wiley & Co which it is my duty to pay off-shows when same was credited & by agreement and if there are any other debts due by said between H. L. Wiley & me just when this firm of H. L. Wiley & Co., it is my duty to pay amount was to be settled as of April 30th 1901 off same out of my own effects, further, in 1896, -date of Gholson notes

E. E. Reid. E. 0. Reid took in trust the stock of goods of H. L. Wiley & Co to further 'settlement &

“Arlington, Ky., Sept. 18, 1899 close up said business, and said E. 0. Reid has “Earnest E. Reid, Clinton, Ky. Dear Sir: disposed of said stock of mdse & settled with "You have my profound sympathy in the loss me in full satisfaction for all mdse. notes & of your father, never was more surprised as accts &c turned over to him by me--the whole I had a letter a few days ago saying he was as of it being under my supervision all the while- well as usual, and had not heard he was sick. the last transaction being the goods moved to Would suggest that as a legal proposition that Clinton, & the purchase of safe now in my

you continue the business in the same firm store house at Arlington which is fully settled name--without any change. You will find this for and paid

to be best for many reasons.

If there is any "Jan'y/98

H. L. Wiley."

matters in Arkansas that needs looking after,

any matters that needs adjusting down there, “Clinton, Ky., April 11th, 1899.

I can and will help you in any way I can. I ex"H. L. Wiley

pect that I can do you some good in the Ark. "Dear Sir: Enclosed find your note, which affairs and as I am owing you all and if you please write the word from, before the words think you can use me in looking up any matter, date until paid so as to leave it clear to bear in- either in Ark as I went with him over the Ark terest from date until paid-I have credited it land carefully once, I will serve you as best I on the note of yours, dated May 8th-95%

Let me hear from you soon. $2074.47 dollar note, which likes about 30 dol


H. L. Wiley." lars I reckon of paying it off-I credited stating with same liens reserved that the old note holds

"I suppose without looking at the deed that In support of the finding of the chancelthe word 'from' added will correspond with the lor that the two notes sued on had been deed see if it does-I also enclose you the note paid, 'the argument is as follows: The stock you executed to Payne signed by myself as se

of merchandise for which Wiley executed curity-The above will cover your receipt—The his notes to Reid & Son on May 8, 1893, above note referred to, to be changed calls for amounted to $7,994.22. The first two notes of $441.25/100 bearing date Feb'y 4th-99 due two years after date & the credit of same on H. L. $1,920.81 each were satisfied before January Wiley note due E. 0. Reid & Son bears same 6, 1896. On that date the second mortgage date-I have written this in a hurry, but guess was executed, showing a balance due on the it can be understood & interpreted by an Ar- stock of merchandise of only $3,183.85. lington lawyer-whether a N. Y. one can or not. Some time during the year 1896, E. 0. Reid . Return the note at once--That Ernest can file it took the stock of merchandise in trust for with my papers & get the matter off of file

the purpose of liquidating the balance of "Yours truly

E. 0. Reid. "P. S. Write me at Heber will leave tonight.", the indebtedness due by Wiley. An inven.

“Received of H. L. Wiley three notes against tory made on October 26, 1896, showed that James E. Golston for three hundred and twelve the stock of goods amounted to $7,911.21. 50/100 dollars each aggregating nine hundred on December 15, 1896, E. 0. Reid traded a and thirty seven 50/100 dollars with interest half interest in the stock of goods to George from date which notes I agree to account for E. Petty for a note for $775 and land valon settlement between myself & said Wiley ued at $2,985, making a total of $3,760. these notes being land notes

Petty received the goods and paid the con"This April 30/1901

E. E. Reid.”

sideration to Reid. The stock of goods and "The note 38.08 Int. to April 30th 01

safe at Arlington were sold to E. 0. Reid 7.40

previous to January 8, 1898, and moved by 45.48

him to Clinton. The item on the “Stock “This note paid out of James E. Gholson and Cash Book” showed that the note for notes-3-312.50 notes making total of 937.50 $2,228.13 had been paid. The receipt given all of which is credited on notes of H. L. by Wiley on January 8, 1898, showed that Wiley this note being retained by agreement the only debt known to the parties to be between me & H. L. Wiley settled as of April due by H. L. Wiley & Co. was a note for 30th 1901.

E. E. Reid." "3 notes of James E. Gholson of $12.50 $100, and that E. 0. Reid had disposed of each making total of $9:37.30 credited to H. L. the stock of merchandise and settled with Wiley on all notes this note $257.25 which was

Wiley for all the merchandise, notes, acsecurity on & the balance of the $9:37.50 is counts, etc., turned over to him by Wiley. credited on other notes & statement attached This receipt shows that the parties made a all this agreed to by H. L. Wiley & I am to complete settlement. It does not appear that hold note showing how paid- E. E. Reid."

Wiley & Co. were otherwise indebted to Reid Note H. L. W.


& Son, and the only way that Reid & Son Note 38.08 int. 7.40 D. L. W. & Co 45.18 257.23

could have settled with Wiley for the goods Pu. Natl Bk Mayfield which I am security on H. L. W. 257.25 sold was hy paying the amount of the pur. Amt. credited on 2.228.13 note H. L. W. 165.69 chase on the notes in question.

We cannot construe the entry of February 937.50 , 13, 1897, on the "Stock and Cash Book" as

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