wire and break and thereby cause the trolley wire to come in contact with Miller's finger or hand, whereby he was injured, and should further believe that the motorman knew, or by the exercise of ordinary care could have known, that to handle and operate the car with the trolley pole in front of the car as he did was liable to cause the trolley pole to leave the wire and break and injure Miller, they should find for Miller. In another instruction given on request of counsel for the coal company, the jury were told that if they believed from the evidence that Miller knew, or in the exercise of ordinary care could have known, that the motor was being backed by Marcum with the trolley pole in front of it, and that the pole would be more likely to leave the wire and come in contact with the roof and break at a time when he had hold of the pole, they should find for the coal company. On these issues Miller testified, in substance, that he had been working as a brakeman on this motor for about six months before the accident; that at the time of the accident he and Marcum, the motorman, went on the siding to let a train of coal cars go by, and when they passed, backed out to the main track for the purpose of proceeding on their journey in the mine; that when the motorman started the motor back, he (Miller) was on the front end of the motor, and the trolley pole, which was on the rear end of the motor when it went on the siding, was on the front end when it backed out; that the motorman started back so fast that the wheel on the motor pole could not follow the wire, and when it came to the fork at the junction of the siding wire with the main track wire, it jumped from the wire, and the end of it went against the roof, breaking the motor pole which he had hold of in two or three pieces, and the wire came in contact with his hand. He also said that the motorman had charge of the motor and that he as brakeman did what the motorman told him to do; that the motorman, when he started back, did not tell him to reverse the pole, but simply told him to "Come on; let's go;" that he did not tell him before backing out to change the trolley pole; that when he started he put on full speed, and was going at full speed when the wheel on the end of the trolley pole struck the fork in the wires and jumped from the wires, hitting the roof and breaking the pole; that the fork was only a few feet from where the motor started, and the motor should have been run at slow speed; and that if it had been so run the trolley pole would not have left the wire when it hit the frog or fork. Marcum, the motorman, said that it was the duty of Miller as brakeman to attend to the trolley pole; that it was customary in the mine to run the motor with the trolley pole ahead of it for a short distance; that when they went on the siding the trolley they backed out of the siding and onto the main track, the trolley pole was in front; that he did not start the motor rapidly, and that when the trolley pole left the wire he was going about as fast as a man could walk; that Miller could have prevented the pole from leaving the wire if he had been looking after it carefully; that the motor pole was more liable to become disconnected from the wire when it was in front of the motor than when it was trailing behind, and more liable to break; that he ran the motor out to the main track with the trolley pole in front because all the motormen did that way; that Miller knew that, when the train which they had taken the siding to let go by had passed, they would go out on the main track, and that it was the duty of Miller as brakeman to turn the pole when necessary, which it was very little trouble to do, but that he did not do it on this occasion. Dr. Turner, the only physician who testified in the case, said that he amputated the end of Miller's finger and dressed it a few times afterward; that the shock Miller received would not cause any permanent injury; that it took his finger 10 days or 2 weeks to heal. The grounds for reversal relied on are: The failure of the court to order as requested a directed verdict for the coal company; that the verdict is in conflict with instructions given by the court; and that the verdict is excessive. [1] On the evidence it seems very plain that it was the duty of Miller to attend to the trolley pole and change it from one end of the motor to the other when necessary; that he knew that the motor went in on the siding to let the other train of coal cars go by, and that when it had passed the motor would be run back on the main track; that he knew that the trolley pole was trailing behind the motor as it went in on the siding, and knew that it was in front of the motor as it was being backed out, and also knew that it was the proper way to have the trolley pole trailing behind instead of being pushed in front of dence that the motorman did not direct Milthe motor. It is also undisputed in the eviler to change the trolley pole, because it was the custom when the motor was only going a short distance to let the trolley pole remain in front of the motor. On this occasion the trolley pole was only in front of the motor until it got on the main track, which was only a few feet from the place from which it started on the siding, and when it had gotten on the main track and proceeded on its journey into the mine, the trolley pole would have trailed behind the motor, as it did before the motor was run in on the siding. It will thus be seen that there is evidence that the accident was caused by the rapid and negligent manner in which the motor was started and run out of the siding, and on this instruction referred to, the jury doubtless | to appear at first blush to have been the refound that the accident and injury were sult of passion or prejudice. The loss of the brought about by the negligent manner in end of the finger was not the only injury that which the motor was operated by Marcum, Miller sustained. He was very severely and of course Miller was not at all respon- shocked by the electric current, and it is diffi sible for this negligence. cult, if not impossible, to estimate the seriousness of an electric shock, although there may be an apparent recovery from it in a short while. [2] It is true that it would have been safer to have changed the trolley pole just be fore the motor backed out to the main track, and very probable that if the trolley pole had been so changed the accident would not have happened, but in view of the custom to let the trolley pole remain in front when the motor was going to be run only a few feet, it cannot be said as a matter of law that Miller was guilty of contributory negligence in failing to change the trolley pole, and so the motion for a directed verdict was properly overruled. [3] It is insisted, however, that the jury disregarded the instruction given by the court at the instance of counsel for the coal company and heretofore mentioned. In this instruction the court, as we have said, told the jury that if they believed Miller knew the car was being backed with the trolley pole in front of it, and knew that on account of this the trolley pole would be more likely to come in contact with the roof of the mine, they should find for the coal company; and, considered by itself, this instruction probably was, as contended by counsel for the coal company, a peremptory direction under the evidence to find for the coal company. This instruction did not present correctly the law of the case, because it should have been qualified or extended so as to direct the attention of the jury to the fact that, notwithstanding this knowledge on the part of Miller, if the accident was caused by the rapid and negligent manner in which the motor was operated, the fact that Miller knew the motor was being backed with the trolley pole in front, and that the trolley pole would be more likely on this account to leave the wire and come in contact with the roof, would not bar his right of recovery. [4] It is true that although instructions may be erroneous, the jury are bond by them, and that a verdict found contrary to instructions, although erroneous, will be set aside, because erroneous instructions so far as the jury is concerned, are as much the law as correct instructions would be. [5, 6] But when there is a series of instructions, as there was here, presenting different theories of the case, it is the duty of the jury to consider all of the instructions together. They are no more bound by what is said in one than they are by what is said in another; and, when so read and considered, the instruction in question did not have the peremptory effect claimed for it by counsel. [7] The assessment of damages appears to us to have been larger than it should have, but we cannot say that it was so excessive as In this case, however, Miller testified that more than a year afterwards he was suffering from the effects of this shock, and incapacitated by reason thereof from performing the full amount of work that he was accustomed to doing before receiving it. Wherefore the judgment is affirmed. WALDEN v. SMITH. (Court of Appeals of Kentucky. March 15, 1918.) 1. WILLS In a bequest to a child for life with remainder to her "heirs," but, if she died without "heirs," the remainder to go to testator's brothers and sisters, the word "heirs" will be read as meaning children, and construed as a word of purchase and not of limitation. 506(4)-CONSTRUCTION "HEIRS." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Heirs.] 2. LIFE ESTATES 27(2) — ACTION BY LIFE TENANT TO SELL LAND. - Prac. § 491, to sell land and reinvest, the reIn action by life tenant under Civ. Code maindermen alone are necessary parties, and contingent remaindermen are not, but they will be treated as parties where their interests are whose interests combined make up the first esproperly represented by those next before them tate of inheritance. 3. LIFE ESTATES 27(2)—SALE OF LAND AND REINVESTMENT. court of a county in which land held by a life Under Civ. Code Prac. § 491, the circuit tenant is located has jurisdiction to decree a sale of the land and the reinvestment in land in another county, as all sales where real propceeds in other real property must be procured erty may be sold for the investment of the prounder and by virtue of such section. 4. LIFE ESTATES 27(2) — SALES OF LAND AND REINVESTMENT-BENEFIT TO REMAINDERMEN. Where a life tenant with her children as remaindermen were living at a distance from land not containing farm buildings, and could not conveniently farm it, the court properly ordered sale of the land and reinvestment near their place of abode. Appeal from Circuit Court, Harrison County. Action by Mary L. Smith, as life tenant of land, against remaindermen to sell the land and reinvest in other land. J. S. Walden, as purchaser, filed exceptions to the report of sale, which were overruled, and he appeals. Affirmed. A. M. Cox, of Cynthiana, for appellant. C. M. Jewett, of Cynthiana, for appellee. SETTLE, C. J. By his will C. L. Smith, of Scott county, Ky., who was survived by his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes est bequeathed the brothers and sisters of the testator by the will is a contingent remainder. Or, in other words, that whether they ever take any interest in the property bequeathed by the will must depend upon the daughter, Letitia, dying without leaving children surviving her. Judgment was entered directing the sale of the 83.26-acre tract of land as prayed in the petition, and it is was thereafter sold by the master commissioner in pursuance of the judgment, at which sale the appellant, J. S. Walden, became the purchaser at the price of $115 per acre, or $9,574.90 in the aggregate. Appellant then executed, with approved security, three bonds for the land of $3,191.63 each, due and payable to the master commissioner in 6, 12, and 18 months, with 6 per cent, interest from date. When the sale was reported by the master commissioner the court entered an order directing him to investigate and report in what other lands the proceeds of that sold could be safely and profitably invested, and at what price. Appellant as purchaser filed exceptions to the report of sale upon the following grounds: (1) That the court was without jurisdiction to order the sale of the land made by the commissioner; (2) that the petition fails to state facts showing that its sale was or would be beneficial to the infant remaindermen, children of Letitia Bell; (3) that the evidence in the case was insufficient to show that the sale would be beneficial to the remaindermen. The exceptions were overruled and the sale confirmed by the court. The appellant complains of the judgment manifesting these rulings; hence this appeal. wife, Mary L. Smith, and an infant daughter, | stated. The court also held that the interLetitia Smith, bequeathed his estate, consisting of a considerable amount of life insurance and a small quantity of other personal property, one-third to his wife for life with remainder at her death to his daughter, and two-thirds to the daughter for life with remainder at her death to her "heirs," but, if she died without "heirs," that the property should in that event go to the brothers and sisters of the testator and their heirs, or the surviving brothers and sisters of such of the sisters as might have no heirs at their death. The will directed that the property bequeathed the daughter of the testator should be invested in real estate by her trustee and the rents and profits thereof applied to her use. The widow of the testator duly renounced the will and received under the statute what she would have been entitled to take had there been no will. The daughter, upon reaching womanhood, became by marriage the wife of J. W. Bell, and they now have three children, all infants under 14 years of age. The property the daughter took under the father's will was invested by her mother, who was duly appointed her trustee, in a tract of land in Harrison county containing 83.26 acres. Adjoining this tract is one of 100 acres belonging to the mother, Mary L. Smith, in her own right, and also a 60-acre tract owned by the husband of Letitia, which two adjoining tracts have been sold by the parties and the proceeds reinvested in other lands lying in Bourbon county, and the parties, Mary L. Smith, Letitia Bell, and J. W. Bell, husband of the latter, being desirous of selling the 83.26 acres belonging to Letitia Bell for the purpose of reinvesting its proceeds in land in Bourbon county adjoining that purchased by the mother and husband of Letitia Bell, brought this action in the Harrison circuit court to obtain a decree for its sale. The children of Letitia Bell were made defendants in the action, as were the brothers and sisters of the testator, C. L. Smith, or the heirs of such of them as have died, and all properly summoned; also a guardian ad litem appointed for the infants, who seems to have filed an answer in their behalf and otherwise made such defense as was necessary for the protection of their respective interests. The circuit court, in construing the will of C. L. Smith, held that this daughter, Letitia Smith, now Letitia Bell, took a life estate in the property therein bequeathed her and that at her death the remainder will go to her three children and such others as may be hereafter born to her; this conclusion as to the children being reached by the courts construing the word "heirs," used in the will as meaning children; and as the property thus bequeathed Letitia for life with remainder to her children was invested in the tract of land in question, she has a life estate there [1] We fully agree with the construction given the will by the circuit court. It is a well-known rule that, where it is apparent from the instrument, whether it be a will or deed, that the word "heirs" is used in the sense of children, it will be read as meaning children and construed as a word of purchase and not of limitation. Virginia Iron, Coal & Coke Co. v. Dye, etc., 146 Ky. 519, 142 S. W. 1057; Bowe v. Richmond, 109 S. W. 359, 33 Ky. Law Rep. 173; Smith v. Smith, 119 Ky. 899, 85 S. W. 169, 1094. Clearly Letitia Bell, the daughter of the testator, took only a life estate in the property given her by the will, with remainder at her death to her children, the infant appellees, and such other children as may hereafter be born to her. [2] The contingent remaindermen were not even necessary parties to the action. In Goff v. Renick, etc., 156 Kỵ. 588, 161 S. W. 983, which was an action brought as was this under section 491, Civil Code of Practice, to sell for reinvestment real estate, the real estate sold had been devised to one for life and at his death to his children, with a further provision that in the event the life tenant should die without issue the estate would to the other lands which they have already purchased there, and that the reinvestment of the proceeds of this land in lands adjoining those already purchased in Bourbon county can be had at substantially the same price for which this was sold. It is not to be overlooked that the reinvestment of the proceeds realized from the sale of the land must be made subject to the approval of the court, and it goes without saying that it will exercise due care to see that the reinvestment is an advantageous one and that the title is taken to the parties in interest as held by them in the $3.26-acre tract of land under the will of C. L. Smith. It is patent from what has been said that the sale of the $3.26-acre tract of land was properly adjudged, and that there is no merit in the exceptions filed by the purchaser to the report of sale. Wherefore the judgment is affirmed. scendants of those who might be dead. We cupied by tenants in cultivating the land, held that as the life tenant and his son, an and that its cultivation by the present ownonly child, the first remaindermen, were livers would be inconvenient and unprofitable ing at the time of the institution of the ac- because of their removal to Bourbon county tion and were parties to the action the court had jurisdiction to sell the land; and, while it was proper to make the life tenants, three brothers, the second and contingent remaindermen, parties to the action to show their approval of the sale and reinvestment, neither they nor their children, the third contingent remaindermen, were necessary parties. In other words, that while the will under which the title of the land sold for reinvestment was devised created three contingent remainders, it was only necessary to bring before the court, in order to obtain a valid sale of the land for reinvestment of the proceeds, besides the life tenant, "the person if in being, in whom it [the title] would have vested if the contingency had happened before commencement of the action." And as the son of the life tenant was the only person in being in whom the estate would have vested, if the life tenant had died before the commencement of the action, and the life tenant and his son, together with their wives, were made parties to the action, the validity of the sale made of the land could not be questioned by the purchaser. It is clearly the meaning of section 491, Civil Code, and recognized as a rule by the courts, that in an action brought thereunder persons holding remote contingent interests in the real estate to be sold for reinvestment are not required to be actually brought before the court, but will be treated as parties, where the interests are properly represented by those next before them whose interests combined make up the first estate of inheritance, if the latter are before the court. [3] There can be no doubt of the jurisdiction of the Harrison circuit court to adjudge the sale of the land in this case. Indeed, in all cases where real property may be sold for the investment of the proceeds in other real property, as here contemplated, such sale must be procured under and by virtue of section 491. Appellant does not contend that the will was not correctly interpreted by the circuit court. MORGAN v. STATON et al. (Court of Appeals of Kentucky. March 15, 1918.) RECITALS 1. WILLS 467 CONSTRUCTION 2. WILLS 618-CONSTRUCTION-NATure of ITS. [4] It is apparent from a reading of the petition that it sets forth all the facts necessary to authorize the decretal sale of the tract of land in question. Its averments That the provision for a reverter applied show that the interest of all concerned will only in case the grandchildren died before reachbe subserved by such sale; that is, that its of an intention to devise a greater estate than ing the age of 21 did not justify the conclusion sale and the reinvestment of the proceeds in that created in the language actually employed. other land to be held in like manner will and the grandchildren took only the rents and be highly beneficial to the parties in inter-profits until they became 21, at which time their estates terminated. est; and in looking to the evidence appearing in the record we find it shows that the 83.26-acre tract of land is without buildings, other than a tobacco barn of inferior quality, that the fencing is in need of repair, that there is no house upon it which could be ocFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court; Cumberland County. Action by J. C. Staton and others against J. H. Morgan. From a judgment construing a will, defendant appeals. Affirmed. C. R. Hicks, of Burkesville, and E. Ber- Nancy W. Staton, died many years ago. His tram, of Albany, for appellant. Prescott Sandidge, of Burkesville, and Montgomery & Montgomery, of Columbia, for appellees. CLAY, C. H. A. Staton, Sr., a resident of Cumberland county, died in the year 1887, leaving the following will: "I Hiram A. Staton, of Cumberland County Kentucky, do hereby make my last will and testament, in the manner and form following, that is to say, 1st that all my just debts shall be paid and funeral expenses. 2nd. I give to my wife Nancy W. Staton, all the land that I now live upon below the old Military line, which runs through my land from or near a large hickory, on the bank of the river, running N 70 E) except or leaving off Sixty acres on the lower end, and if a straight line from the river East to the road, and parelel with the Military line will go North of a spring that my Son J. D. Staton, now gets water from, that is where I want it, if however a straight line would not leave the spring on the sixty acres then commence far enough down the river and run the line straight so as to make a corner North of said spring, thence Eastward to the road so as the Sixty acres is of equal worth on the East and the west side, for and during the term of her natural life and after her decease I give the same with other property to my children herein after mentioned, eaqualy to be divided among them and be enjoyed by them for ever. 3rd. I give to son William A Staton, $1000.00, One Thousand Dollars, out of note that I now have so soon as collected. "4th. I give to my son J. D. Staton, the Sixty acres above mentioned on the lower end for and during the term of his natural life Should he die before his son H. A. Staton becomes Twenty-One, I desire that his son shall have the rents and profits until he is Twenty-One, should he die before that time I want the land to go back to my estate and be eaqually divided among my legal heirs. 5th. My son Joseph R. Staton, and James C. Staton, I have given One Thousand dollars ($1000.00) each which is about an eaqual with the rest of my boys "6th. I give to my son Hiram A. Staton, the money that I now have in the bank of Columbia, Ky, which makes him eaqual. 7th. I give to my Daughter, Dora Ann Christine, Staton, the land North of the Military between said line and the line & dividing Wm. A. Griders land and it to have and enjoy it during the time of her natural life, provided she leaves no heirs, in the event she leaves heirs then them to receive the profits until they reach their majority, should they die before they are 21 years old, the property to be eaqually divided among my other children, I also give her ($1000.00) to be paid to her out of other assets that I have. son J. D. Staton disappeared from his home over 19 years ago, and has never been heard of since that time, and is presumed to be dead. He left as his only child and heir at law Hiram A. Staton, who is now over 21 years of age. The testator's son William A. Staton died intestate, leaving his two sons, Hiram W. Staton, and Luther Staton, as his only heirs at law. Dora Ann Christine Staton married E. Morgan, and then died leaving one son, J. H. Morgan, who is over 21 years of age. Hiram A. Staton died in the year 1915, and J. H. Morgan qualified as his administrator. Plaintiffs, J. C. Staton and J. R. Staton, sons of the testator, H. A. Staton, Sr., brought this suit against Hiram W. Staton, Luther Staton, Hiram A. Staton, and J. H. Morgan, in his own right and as administrator of the estate of Hiram A. Staton, deceased, for a construction of the will of Hiram A. Staton, Sr., and for a sale of the real estate devised by the fourth and seventh clause of his will. The chancellor adjudged that by the fourth clause of the will in question the testator devised to H. A. Staton, son of J. D. Staton, only the rents and profits from the 60 acres of land until H. A. Staton became 21 years of age, and that thereupon his estate terminated and the fee passed to the testator's heirs. He further held that under the seventh clause of the will. J. H. Morgan, son of Dora Ann Christine Staton, was devised only the rents and profits from the land therein mentioned until he became 21 years of age, whereupon his estate terminated, and the fee passed to the heirs of the testator. From that judgment this appeal is prosecuted. [1, 2] It is insisted that as J. D. Staton, the life tenant under clause 4, died before his son H. A. Staton became 21 years of age, the latter's interest in the land devised by clause 4 did not terminate when he arrived at age, but he thereupon took the entire fee. The same contention is made with respect to J. H. Morgan under clause 7. In this connection, some stress is placed on the fact that the only condition on which the property mentioned in clause 4 should go back to the testator's estate was that H. A. Staton should die before he reached the age of 8th. All the rest of my estate both real and 21, and that the only condition on which personal of whatever nature or kind it it may be not herein before particularly disposed of, I the property mentioned in clause 7 should give to my wife Nancy W. Staton, for and dur- go back to the testator's estate was that the ing her natural life, and after her decease I give life tenant's children should die before they the same to my children, and lastly I do hereby constitute and appoint my son J. D. Staton and H. A. Staton Executors of this my last will and testament and do not require of them to give security as Executors in witness whereof I have hereto set my hand and affixed my seal this the 14th day of December 1886." The testator was survived by his widow, Nancy W. Staton, one daughter, Dora Ann Christine Staton, and five sons, J. D. Staton, J. R. Staton, J. C. Staton, William A. Staton, and Hiram A. Staton. The testator's widow, reached their majority. Hence it is argued that by prescribing the only condition under which a reverter should take place, the testator plainly intended that H. A. Staton, the son of J. D. Staton, should have the property devised to him, and the heirs of Dora Ann Christine Staton should have the property devised to them, unless those conditions happened. It is further argued that the will considered as a whole shows that the |
