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this action was instituted by the landowners will impose a greater obligation upon the and taxpayers in the district, praying that municipality than was contemplated in the the contract for the construction of the ditch advertisement. No such change is observable be declared null and void, that the board be re- in the condition in question. Indeed, it is strained and enjoined from selling the bonds, within the spirit and meaning of the adverand it, with the contractor and sheriff of tisement, which in itself was an invitation Hickman county, be enjoined from attempt- for bids and necessarily implied the furnishing to collect the taxes levied in the district. ing by the board of a place in which to do The averments of the petition on which this the work-that is, a place in which to make relief was sought were controverted by an- clearings and excavations, with a right of swer, proof was taken, and judgment render- way to do hauling, and to perform other acts ed by the chancellor canceling the contract, necessary to an economical and proper perand permanently enjoining the selling of the formance of the contract. It seems clear to bonds and the collection of taxes to defray us, therefore, that in this particular there the cost of constructing the ditch. From that is no variance between the instruments. judgment the contractor has appealed.

cent, of the amount earned on work completed in any month should be paid at the end of the month, and that the unpaid 20 per cent. should be retained until the contract was completed. Besides, the advertisement stated that the bonds for the construction of the ditch had been sold, thus plainly indicating that the board had in its hands sufficient funds to pay for the work as it progressed. The obvious purpose of the statement was to obtain advantageous bids. It was in reality a representation of fact upon which the contractor had the right to rely, and which he could rightfully have incorporated into his contract.

[2] Another condition attached to the bid It is admitted that the district was legally was that appellant should not be required to established, but it is first contended by ap- begin the work until the funds to pay for it pellees that the terms of the successful bid, were in the hands of the commissioners. This which were incorporated into the contract, condition was evidently inserted to insure do not conform to the advertisement, and, in the making of payments as the work proconsequence, there was not the competitive gressed. The advertisement contemplated bidding essential to a valid letting. Three that the work would be promptly paid for, bids were made. The forms on which they and the form of bids prepared under the diwere submitted were prepared by the secre-rection of the board specified that 80 per tary of the board, and given to prospective bidders. Appellant's bid was submitted on the regular form, but he appended to it the conditions: (a) that the board should furnish a free building place, a free tearingout place, and a free right of way for all hauling necessary to be done in the execution of the work; (b) he should not be required to begin the work until funds to pay for it were in the hands of the board; and (c) the funds should be in the hands of the board within six weeks from the date of the contract, and that he should begin the work within a reasonable time thereafter. These conditions are said to constitute a fatal variance from the terms of the advertisement, and to render the contract void. Staebler & Gregg v. Town of Anchorage, 186 Ky. 124, 216 S. W. 348: Mayes v. Adair County (Mo. Sup.) 194 S. W. 58, and Diamond v. City of Mankato, 89 Minn. 48, 93 N. W. 911, 61 L. R. A. 448, are cited in support of the contention. Whether the doctrine announced in those decisions operates to defeat the contract is the question.

[1] One of the conditions attached to the bid and embraced in the contract was that the board of drainage commissioners should furnish the contractor a free building place, a free tearing-out place, and a free right of way for hauling made necessary in the execution of the work. This condition was not specifically mentioned in the advertisement. That fact, however, does not in our opinion subject the case to the interdictions of the authorities cited, for they relate to some change in the plans, specifications, or terms that will lessen the contractor's work, will make it easier and less expensive for him to perform it, will increase his compensation, or

[3] It is said, however, that the advertisement is void for uncertainty, since it did not fix any time for completing the work, and that alleged defect, in connection with the stipulation that the contractor should begin the work within a reasonable time after the funds to pay for it were in the hands of the Board, are advanced as grounds for invalidating the contract. In response to these suggestions it is, in our opinion, sufficient to say that the statute (subsection 26 of section 2380) providing that the notice shall fix the time for completing the work, is not mandatory in the sense that a contract fairly entered into is vitiated because a specified time for the completion of the work is not fixed in the advertisement. The contract provides for completing the work within 12 months, and it is neither alleged nor proved that that time was unreasonable. As the advertisement did not fix a time, the parties must be regarded as having understood what the law presumes, i. e., the work should be completed within a reasonable time. Furthermore, in the absence of a definite date for beginning,

(252 S. W.)

the presumption must be indulged that the time. The contract was made on August 21, contractor would begin within a reasonable 1920, but it appears that shortly thereafter time from the performance of the conditions the action to annul the proceeding estabthat the board had assumed in its advertise- lishing the district and to discontinue the ment. Hence the stipulation in respect to ditch was instituted. That litigation susbeginning the work was consonant with what pended operations under the contract until the law construes to be the terms of the ad- the mandate of this court was filed in the vertisement. Hickman circuit court the latter part of May, [4,5] As to the relationship existing be- 1921. The board of drainage commissioners tween the secretary of the board of drainage did not then have the funds for prosecuting commissioners and the contractor, it may be the work; and, owing to threatened litigaremarked that the record is devoid of evi- tion, was unable to obtain funds before this dence from which it could be inferred that action was filed in November, 1921. Appelthere was any favoritism shown the contrac- lant was prepared at all times, as is shown tor by the board or by its secretary. That re- in the evidence, to carry out his contract. It lationship of itself does not, in our judgment, appears, therefore, that the delay in beginvitiate the contract. It is contended, how-ning the work was not due to any fault of ever, that, as the secretary was also chief the contractor, but was caused by appellees. engineer for the district, and it was his duty, They will not be heard to ask a cancellation as engineer, to examine the work as it pro- of the contract because of delays resulting gressed, and to determine whether it was from their attempts to defeat it. done according to the plans and specifications, and make recommendations to the board for the payments of estimates, public policy forbids the enforcement of the contract. Among the authorities cited in sup`port of this view is Knott v. Jarboe, 1 Metc. 504, where it was held that service of a process by a sheriff in a suit in which he was plaintiff, although he had no pecuniary interest in the result, was a nullity, not only because it was violative of a statute, but also because inconsistent with public policy. Another case relied on is Coquillard Wagon Works v. Melton, Sheriff, 137 Ky. 189, 125 S. W. 291, in which it was decided that a judge is disqualified to act in a case in which there is anything to be decided from which he can profit. Reference is also made to the ruling in Petrey, etc., v. Holliday, etc., 178 Ky. 410, 199 S. W. 67, that & judge who is related in the second degree to one of the plaintiffs is disqualified to grant an injunction for or hear or determine any motion made by the plaintiffs if timely objection is made to his sitting. These and many other authorities cited by counsel declare a wholesome rule of public policy. But they are not, as we construe them, applicable to the facts in this case, for the obvious reason that Porter's appointment as engineer is not irrevocable, and both he and the board of drainage commissioners are amenable to the processes of the courts to the end of preventing his acting as engineer, or, if he should act, of abusing his authority as such. With these ample remedies for preventing favoritism or dishonesty, it cannot be held that the contract itself which may be carried out under the engineering supervision of some one besides the brother of the contractor, is invalid.

[6] It is further insisted that appellanţ violated the contract in failing to begin the work or to complete it within a reasonable

Weikle v. Board of Drainage Commissioners, 192 Ky. 797, 234 S. W. 612, does not hold to the contrary, for there the delay did not necessarily result from the action of the landowners in placing the board of drainage commissioners in position where it could not carry out its contract. Here the board of drainage commissioners was prevented from selling the bonds by reason of litigation instituted and threatened by appellees. A part of its contract was to have the funds on hand when the work began. Appellees prevented it from carrying out the contract, and now they insist that it should be canceled, although from the beginning appellant has been willing and desirous of fulfilling it, and has been unable to do so because appellees have prevented the other party from complying with it. If the board had been able and willing to perform its part of the contract, and appellant had delayed the performance, the contention would be maintainable. But that is not the case. Appellees have caused the delays, and they cannot rely on the result of their own acts to defeat the contract.

[7] It is the final contention of appellees that the injunction should have been granted as to the sale of the bonds and the levying and collecting of the taxes because the property owners and taxpayers had no notice of the making of the assessment roll, which was never confirmed by any order or judg ment of the Hickman county court. The averments of the petition as to this ground were traversed. Appellees insist that the burden of proving notice of the assessment roll and its confirmation by the Hickman county court rested upon appellant. theory of this argument is that appellees could not prove the negatives that they had not been given notice of the assessment roll and it had not been confirmed by order of court, whereas it was practicable for appel

The

an intention that, if the first organization failed to maintain the home, the next should be entitled to the fund, if willing to maintain it, so that the second organization was entitled to receive the trust fund after the first organization had established the home but surrendered the property to the executor on thereafter determining not to maintain the home.

513(8)—

The fact that executors had made their

tamentary trust, after a trustee, which had accepted the trust for the establishment and maintenance of a home, surrendered it and refused to maintain the home.

lant to introduce a copy of the order or judgment of court and to prove the giving of notice. Hamilton v. Steele (Ky.) 117 S. W. 378, Andrews v. Haydon's Adm'r, 9 Ky. Law Rep. 440, and Whitteker v. Holcomb, 177 Ky. 790, 198 S. W. 533, are relied on. None of those decisions is applicable, nor do any of them depart from the general rule that the burden is upon him who asserts the affirmative of 2. Executors and administrators Discharge of executors does not prevent of an issue, whether he be plaintiff or defendperformance of duties subsequently arising. ant. Appellees attacked the validity of the tax and proposed bonds because of the al- final report and been discharged does not deleged irregularity in the levy. This was the prive them of their right thereafter to mainground for asking an injunction. They as-tain an action to ascertain and protect the tessumed the burden of establishing their claim, and the mere fact that they alleged a negative did not shift the burden to appellant. In the recent case of Union Central Life Insurance Co. v. Jackson, 195 Ky, 438, 242 S. W. 588, it was held that, where a negative averment is essential to the statement of a cause of action, the party making the averment has the burden of proving it, unless it is exclusively within the power of the adverse party to produce evidence pertaining to the averment. Here it was within the power of appellees, and, indeed, more convenient for them than appellant, to show whether they had been served with notice of the tax assessment. Moreover, it was in their power to produce the record of the county court and to show whether an order or judgment confirming the assessment roll had been entered. The burden being upon them, and there being no evidence to sustain it, they were manifestly not entitled to the injunction.

For the reasons stated, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

YOUNG et al. v. DAVIS et al.

DAVIS et al. v. GRUNDY PRESBYTERIAN
ORPHANS' HOME AND SCHOOL et al.

(Court of Appeals of Kentucky. April 17, 1923.)

1. Charitles

30-Codicil held to entitle second trustee to property after first surrendered it.

3. Charities 48(1)-Executors cannot Impose unreasonable terms upon exercise of trust.

A clause requiring a devisee accepting a trust to enter into terms with the executors, obliging the devisee to maintain an orphans' home upon terms satisfactory to the executors, did not empower the executors to impose unreasonable terms upon the trustee and thereby indirectly defeat the trust, so that the court properly refused to require the trustee to agree not to maintain any other similar home within the state as a condition to receiving the trust funds.

216(2)—

4. Executors and administrators
Allowance of $750 to attorneys of executors
Increased to $1,250.

Where a suit by executors to ascertain the disposition of the residue under the will, after the first trustee named therein had refused to execute the trust, involved intricate questions of law and the estate amounted to at least $60,000, and there was evidence fixing the fees of the attorneys for the executors at from $3,000 to $5,000, an allowance to them of only $750 was inadequate and will be increased to $1,250.

Appeal from Circuit Court, Washington County.

Suit by W. Y. Davis, as executor of the estate of Sallie H. Grundy, deceased, and others, against the Grundy Presbyterian Orphans' Home and School, Charles Houston Young, and others, to determine the right of the defendants to a trust fund under the terms of a will. From a decree awarding the trust fund to the Orphans' Home under the control of the Northern Presbyterian Church, Charles Houston Young and others appeal, and plaintiff and his attorneys also in turn were entitled to receive and administer the trust fund if the preceding organization re-appeal from so much of the decree as fixed fused to do so, without any provision for the the fees of himself and his attorneys. Judgdisposition of the fund in case the first society ment affirmed on the first appeal, and reaccepted the trust and thereafter failed to main- versed in part in the second. tain the home, a codicil making a devise of the fund in the event of the failure of each and all of the organizations to accept the property and establish the home and maintain it, manifested

Where a will created a trust for the establishment and maintenance of an orphans' home, and designated three organizations, who

In Young et al. v. Davis et al.:

Hardin H. Herr, of Louisville, and W. F. Grigsby, of Springfield, for appellants.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(252 S.W.)

Hobson & Hobson, of Frankfort, Polin &
Polin, of Springfield, John J. Davis, of Louis-
ville, Nelson D. Rodes, of Danville, and W. C.
McChord, of Springfield, for appellees.

In Davis et al. v. Grundy Presbyterian Or-
phans' Home and School et al.:
Hobson & Hobson, of Frankfort, for ap-
pellants.

John J. Davis, of Louisville, Nelson D.
Rodes, of Danville, W. C. McChord, of Spring-

field, and Hardin H. Herr, of Louisville, for appellees.

TURNER, C. In May, 1904, Sallie H. Grundy, a resident of Washington county, died testate, being the owner in fee of a considerable personal estate and of a farm of about 600 acres of land in that county. She was a widow and left no descendants. In the first seven clauses of her will she made certain specific bequests which are in no wise involved in this controversy. By the eighth, ninth, and tenth clauses of her will she created and provided for the maintenance of a trust

Church to be held and controlled and managed
in like manner as set out in eighth devise there-
of. The devisee accepting said trust and devise
for the purpose aforesaid is to have the priv-
ilege of adding to said property and fund and
said orphan home at such times and as they
may deem wise and for its improvement but
said home is to be and remain and kept in per-
petuity at my said home and premises in said
Said orphanage
county and state aforesaid.
and home is to be known as the Grundy Pres-

byterian Orphans Home.

"Tenth: In the event neither of said synods accept the devise of said property as herein made to them and each of them in the eighth and ninth devises of my will I devise bequeath and give it in trust in like manner and upon the same terms and conditions and for purposes aforesaid to the Grand Lodge of Kentucky of the order of Free and Accepted Masons. Said property is not to be sold or converted but to be held kept up used and devoted to the purposes aforesaid named and orphan in perpetuity. If said Synod of the Presbyterian Church Southern branch do not accept said trust and property within twelve months after my death then said other synod of said other branch of said church may in sixty days after the expiration of said twelve months accept it and in the event it fails so to accept it then it goes to said Grand Lodge of Masons us aforesaid and in that event it shall be the

"For male and female orphan children left homeless in the world and without means of support, and to furnish a place and home where they can be raised, brought up in moral cours-Grundy Masonic Orphans Home." es, educated, and trained for useful trades, professions, pursuits and avocations in life."

The eighth, ninth, and tenth clauses of her will are as follows:

The original will is dated the 14th of January, 1896, but on the 3d day of October, 1901, she executed the following codicil thereto, to wit:

"It is my will and I here direct my executors to take charge of the property named in the eighth ninth and tenth clauses of my will at my death and to make all necessary arrangements with the devisees named in said clauses for the purposes of creating and establishing the orphans home named and the maintenance and support of same in perpetuity as provided in my will or that one which shall accept said property in trust for the benefit of the charity intended as set out in my will and shall enter into terms with my executors binding and obligating said devisee to establish carry out and maintain said charity and home in perpetuity upon terms satisfactory to my executors and accepting said property for the uses purposes and charity and home aforesaid then my executors are directed authorized and empowered and granted full power to transfer and convey and assign said property to said devisee for the uses purposes charity and home aforesaid by deed with covenant of general warranty. This codicil is made for the purpose of assuring the establishment of said home its success and perpetuity. It is further my will that the destitute orphan children of worthy parentage of Washington county and the counties adjacent thereto and after them of the state of Kentucky be preferred as the beneficiaries of said orphans home."

"Eighth: I will bequeath and devise all the residue of my estate real personal and mixed and of every nature and description in trust to the Synod of Kentucky of the Presbyterian Church of the United States the Southern branch of said church for an orphan home. Said home to be for male and female orphan children left homeless in the world and without means of support and to furnish a place and home where they can be raised, brought up in moral courses educated and trained for useful trades professions pursuits and avocations in life. Said property is to be taken possession of used and managed and controlled by trustees appointed by and subject to and controlled by said synod and subject to removal or change at any time by said synod. Said children to be subject to the management and control of said trustees. This devise is to become effective only upon said synod and church through its established and constituted authorities by and properly acknowledged and authenticated and recorded in the clerk's office of the Washington county court accepting said property and said trust and agreeing to establish open maintain and keep up said home in perpetuity using my present dwelling house and home therefor. "Ninth: Should said synod of said branch of said church fail to accept said property and trust for purposes and upon terms and conditions as set out in the eighth clause of this will then I devise give and bequeath in trust in same manner for same purposes and upon same Thereafter, on the 21st of October, 1902, terms and conditions to the Synod of the Presbyterian Church of the United States of Amer- she executed the following codicil to her ica sometimes called the Northern Presbyterian will, to wit:

"Further it is my will and I here now devise, to surrender the property to the executors the property named and set out in the eighth of Mrs. Grundy and to further discontinue ninth and tenth clauses of this will in the event the operation of the same as such trustee. all the institutions and organizations named In her will the testatrix had designated W. therein fail to take accept create and establish the orphans home the charity named in said Y. Davis and John W. Lewis as her execuclause and to maintain same to my executors tors, and in 1920, when the Southern Presbyin trust to be held by them and applied and de- terian Church decided it would not longer voted to worthy Christian charities to be se- operate the orphanage or carry out the trust, lected by my said executors in their discre- one of those executors, John W. Lewis, was tion controlled and maintained by the Presby dead. The surviving executor was, however, terian church property to be used and devoted notified of this purpose by the trustee, and to the benefit of and for the support of such charities. The devise is only to be effective in he, as such executor, thereafter brought this the event of the failure of each and all of said suit against the orphanage, which had been institutions and organizations named in said incorporated, the synods of the Presbyterian , eighth ninth and tenth clauses of my will to ac- churches and their officials, the Grand Lodge cept said property and establish said orphans of Masons and the heirs at law of the decehome and maintain same as intended and pro- dent, Mrs. Grundy. He asked that the parvided for in said clauses." ties be required to answer and assert their rights, and that the court define the rights and duties of the surviving executor and direct him in the discharge of his duties as

By a third codicil dated the 19th of March, 1904, she revoked a specific devise in the seventh clause of her will, which is not here involved. On the same day she added yet another codicil, wherein it is provided:

"In the event my executors W. Y. Davis and John W. Lewis deem it necessary to carry out either or any of the devises of my will to sell any or all of my real estate I hereby authorize and empower them to sell said real estate at such time and upon such terms as they may deem best for my estate in their discretion and I hereby authorize and empower them and grant them full power of attorney as my executors to execute and deliver deeds of conveyance for said real estate to the purchaser or purchasers thereof conveying said real estate to them with covenant of general warranty."

The testatrix died in May, 1904, some two months after the execution of the last codicil, and her will was thereafter, in June, 1904, probated in the county court of Washington county and placed on record. The devise, therefore, of the legal title to the trust property for the specific purposes named was to the Synod of the Southern Presbyterian Church, with the provision that, if such trustee or agency declined to accept the property and maintain the institution on the terms named and undertake the administration of the trust for the benefit of the class of beneficiaries named, then, in that event, there is an alternative devise to the Synod of the Northern Presbyterian Church for the same purposes, with a further proviso that, if that trustee or agency also declines to accept the property and administer the trust on the terms named, then there is a devise to the Grand Lodge of Masons of Kentucky for the same purposes and upon the same terms. But the Synod of the Southern Presbyterian Church did accept the devise and the trusteeship upon the terms named in the will in October, 1904, and thereafter had established the orphanage provided for, and maintained and operated the same under the terms of the will until the fall of 1920, when it decided, for reasons not necessary to give,

such.

The Northern Presbyterian Church filed its answer, offering to qualify and continue the maintenance of the orphanage under the terms and conditions of the will, and asserting its right so to qualify as the second choice of the testatrix for trustee. It also asked the court to require the surviving executor to convey to it the trust property under the terms of the will, and agreeing, if that was done, to continue to operate and maintain the orphanage under the terms of

the will.

The heirs at law filed their answer, crosspetition and counterclaim against all of the other parties and asserted that, inasmuch as the Southern Presbyterian Church had in the first place accepted the devise and trust and had operated and maintained the same for 16 years, the two alternative trustees designated in the will no longer had any right in the property or authority under the will to qualify and operate the orphanage, and that, as the trust had thus failed, the property reverted to the estate of the testatrix and passed to her heirs at law.

The executor contends that the heirs at law are right in their contention that neither of the two alternative trustees referred to have now any right to qualify or administer the trust, but contends under the provisions of the codicil of October 21, 1902, that, if all three of the designated trustees should fail to take, accept, and establish the orphanage and maintain the same, it then became the duty of the executors under that codicil to devote the property to worthy Christian charities, to be selected by them, but controlled and maintained by the Presbyterian Church; and to this latter contention the heirs at law respond that the devise in that codicil to the executors is void for uncertainty, under our statute, and does not, therefore, stand in the way of the reversion claimed by them.

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