Virgil P. Smith, of Somerset, for appellants. Wesley & Brown, of Somerset, for appellees.

NUNN, J. [1] This is an action by Mary B. Meece, a daughter of W. F. Richardson, and by her husband, J. C. Meece, as guardian for the infant children of W. F. Richardson. The purpose of the action was to set aside a conveyance made by Richardson to the appellee on the ground of mental incapacity, undue influence, and inadequate consideration.

W. F. Richardson conveyed to his nephew, Colyer, the appellee, 32 acres of land, in consideration that Colyer would "care and provide for the said W. F. Richardson as long as he lived, furnish him suitable food and raiment, wait on him during his sickness, properly bury him, and erect a tombstone to his grave suitable and appropriate." The witnesses estimate the value of the land at from $12 to $20 per acre.

son.

Colyer's mother was a sister to Richardson. She owned an undivided interest in the land, and joined in the conveyance to her Colyer had a little money and some personal property, altogether amounting to not more than $300, and at the time he made the conveyance he executed a will devising all of his personal property to Mrs. Colyer. Whether this was intended as compensation for the release of her interest in the land is not made clear by the record. Anyhow, Colyer at once moved to the place and carried out his part of the contract. Richardson was a widower when he made the conveyance, and had been living there alone for many months, afflicted with Bright's disease and dropsy. He lived 68 days after the conveyance. Before making the trade with Colyer, he offered to convey it to his son-in-law, Meece, the appellant, if Meece would move there and take care of him. Meece would not move to the Richardson place, but offered to give Richardson a home with him at the Meece place if Richardson would make the conveyance. Richardson insisted that he wanted to live and die at his own home. Richardson's wife died about a year before the conveyance, but they had been living apart for 14 or 15 years. There is testimony that they were divorced, although upon what ground and at whose instance the record does not disclose. Meece married Richardson's oldest daughter about 4 or 5 years before this controversy arose, and after that time Richardson's wife and infant children lived with Meece. Meece did a good part by them, but the question here is not one of compensation to him out of the Richardson estate. Richardson was sent to the asylum as a lunatic three times, and each time kept there from 2 to 4 months, but his last release

deed another inquest was held in the Pulaski circuit court, where he was adjudged to be sane and restored to his property rights. Eighteen witnesses testify that during the last 10 years of his life he was of sound mind and capable of transacting business. Five witnesses testify to the contrary, but. even if there was no other evidence in the case, and he had never been adjudged a lunatic, the evidence of these five witnesses would not be controlling or convincing. There was no evidence of undue influence. The court upheld the conveyance and dismissed the petition. Under this state of facts we must, of course, accept the finding of the chancellor on the question of mental incapacity.

But appellant contends that the court erred in failing to set aside the deed on the ground of undue influence. Although there is no evidence of undue influence, appellant argues that the burden was upon the grantee to show that the deed was made freely and understandingly.

[2, 3] The general rule is that one who charges fraud has the burden of making out his case. But, where the conveyance is voluntary and without consideration, or an inadequate consideration, the burden is upon the grantee to prove that the grantor acted freely and understandingly, where there is a relation of trust and confidence between the parties, such as attorney and client, guardian and ward, or parent and child. As illustrating this exception to the general rule, the following cases are in point: Hoeb v. Maschinot, 140 Ky. 330, 131 S. W. 23; Shacklette v. Goodall, 151 Ky. 20, 151 S. W. 23.

[4, 5] But here the facts are not sufficient to raise a presumption of fraud. The mere fact that the parties were of kin does not establish such a confidential relation as will give rise to the presumption of fraud. The fact that Richardson only lived 68 days after the deed does not render the consideration inadequate, although the obligation imposed upon the grantee was perhaps made less onerous. As said in the case of Dunaway v. Dunaway, 105 S. W. 137, 32 Ky. Law Rep. 29:

"The test is: Was it fair and reasonable when entered into? The grantor might have the time the deed was made, it seemed likely lived several years longer than he did, and at that he would live for several years. In view of the condition of the grantor's health, because of his physical infirmity, and the probability that he would in time become more and more helpless, and a charge of constant care and attention, the agreement of the grantee to support him the balance of his life, and to decently inter him, made a sufficient consideration to uphold the deed."

The evidence makes it clear that the land conveyed was not an excessive payment for the services rendered by Colyer during the 68 days that he waited upon and provided for Richardson.

to designate Clara Allen as the beneficiary,

INS. CO.

(Court of Appeals of Kentucky. Nov. 9, 1915.) INSURANCE 114-ACCIDENT POLICIES-INSURABLE INTEREST-BENEFICIARY.

Where deceased procured an accident policy which named as the beneficiary a woman to whom deceased was related neither by blood nor marriage, though she was designated as his wife, and deceased paid all of the premiums, the beneficiary was entitled to the amount due under the policy, though she had no insurable interest in deceased's life.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 136-138; Dec. Dig. 114.]

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Leon Allen's administrator against the Pacific Mutual Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

C. B. Shimer and Geo. E. Phillips, both of Covington, and A. C. Hall, of Newport, for appellant. Barbour & Bassmann, of New

port, for appellee.

CARROLL, J. On January 26, 1912, the appellee insurance company issued to Leon Allen, upon his request and application, a policy of accident insurance in which it agreed to pay "to the insured or his beneficiary, Mrs. Clara Allen, his wife, or in the event of her prior death, to the executors, administrators, or assigns of the insured," the principal sum of $1,000, in the event the insured came to his death by accidental causes. This suit was brought by the administrator of Allen to recover the sum of $1,000, on the ground that he had come to his death from accidental causes within the meaning of the policy. The petition further averred that:

"Said Clara Allen, designated in said policy of insurance as the wife of said insured and as the beneficiary of said policy, was not and is not the wife of said Leon Allen, and was not related to him by blood or marriage, and was not a creditor of said insured, nor was she the affianced wife of said insured."

It was further averred that all the premiums due on the policy had been paid by Leon Allen in the manner and at the times required by the policy contract, and that the company had not paid to Clara Allen any part of the sum stipulated in the contract. The lower court sustained a general demurrer to the petition, and the administrator appeals.

The administrator is endeavoring to collect the money due under the contract upon the theory that Clara Allen had no insurable interest in the life of the insured, and, as the contract could not be enforced for her benefit, the estate of the insured was entitled to the insurance. But if, as averred in the petition, the contract was procured by, and all the premiums due on the policy were paid by, the insured, he had the right

cover the amount due under the policy, although she had no insurable interest in his life. This question has been settled by this court in Hess v. Segenfelter, 127 Ky. 348, 105 S. W. 476, 14 L. R. A. (N. S.) 1172, 128 Am. St. Rep. 343; Rupp v. Western Life Indemnity Co., 138 Ky. 18, 127 S. W. 490, 29 L. R. A. (N. S.) 675.

As the beneficiary named in the policy is entitled to the insurance, it necessarily follows that the administrator cannot recover it for the estate, and therefore the judgment dismissing his suit is affirmed.

MOTTLEY v. ROEMER et al. (Court of Appeals of Kentucky. Nov. 9, 1915.)

VENDOR AND PURCHASER 285-ENFORCEMENT OF LIEN-MATURITY OF NOTES-JUDGMENT.

In an action to enforce the lien of a judgment creditor who had purchased at an execution sale and obtained a lien subordinate to the liens of the assignees of defendant's seven purchase-money notes, making such assignees parties defendant and calling upon them to assert their liens, where it appeared that only two of the notes had matured, a judgment that the land was indivisible, without materially impairing its value and for its sale, was invalid. Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. [Ed. Note. For other cases, see Vendor and 285.]

HANNAH, J.

This appeal involves the same matters as the case of Roemer v. Mottley, 164 Ky. 313, 175 S. W. 645. J. F. Mottley bought of R. B. Chaney and others, on December 5, 1911, a tract of land in Warren county, containing 126 acres, for which he paid $1,500 in cash and executed seven promissory lien notes, each in the sum of $223.45, and due on the 1st days of January of the years 1913 to 1919, both included. These notes were sold and transferred by the vendors of the land to James T. Blewett; and Blewett sold and transferred the second note to Warren Lodge No. 225 I. O. O. F. of Rockfield. In August, 1913, appellee Roemer sued Mottley in the Warren quarterly court and obtained a judgment against him in the sum of $195.45, execution upon which he caused to issue from the office of the clerk of the Warren circuit court, and to be levied upon the 126 acres of land mentioned. At the execution sale, Roemer became the purchaser, for the sum of $243.02, the amount of the debt, in

of all blame by a peremptory instruction given by the court at the conclusion of the evidence.

For a reversal appellant insists there was no evidence of negligence upon the part of the appellant, that Cook's death was caused solely by his own negligence, and, consequently, that its motion for an instruction, peremptorily directing the jury to find for the defendant, should have been sustained. The testimony is quite vague and fragmentary in many essential particulars; but, as we read it, the following facts appear:

Appellant's mill is located on the bank of the Tennessee river, at Paducah, and Cook had worked as sawyer in the mill for quite a while. The logs which he handled were cut by a belt saw. The logs were brought up into the mill from the river on a log car, which was pulled along a track with a cable that coiled around a large drum, or "bull wheel," in the mill, which was operated by steam power. When Cook was engaged in sawing a log, and in his regular position, the saw was at his right side, and a little in front of him. And, running along in front of him, on a track, was the saw carriage, which was operated by steam, and controlled by a lever at Cook's right hand. At his left side were the "skids" or "skidway," a slightly sloping platform, on which the logs were placed before being rolled onto the carriage for the sawyer. Behind the skidway, on a track parallel to the track on which the saw carriage moved, the log car above mentioned brought the logs up from the river, and, when the logs reached the mill, they would be rolled off on the skidway.

Between Cook and the saw machinery at his right, there was a wooden partition. The saw carriage was propelled by steam, at a rapid speed, along a steel track, and was used to convey the logs to and from the steel belt saw that sawed them into lumber. In front of Cook and within his reach, there were two levers and a foot tread. With the foot tread he threw the logs from the skidway onto the saw carriage; with one of the levers he operated what is called the "niggerhead," which was used to adjust the log after it had been thrown onto the saw carriage; and he used the other lever, as above stated, to control the movements of the saw carriage along the track in front of him.

Upon the occasion of the accident, the log car had been pulled up from the river with a load of logs, and when it entered the mill, the end of one of the logs on the car struck the end of a log lying on the skidway, and knocked or pushed it about 3 feet out of its original position, and so as to interfere with Cook's operations as sawyer. One end of this log was off the skidway and rested against the wooden partition which separated Cook from the saw machinery. When Cook dis

more of the employés, directing them to place a chain around the log in order to drag it back to its proper place on the skidway. This chain was attached to a pulley overhead. After the chain had been attached to the log, Cook took a stick and attempted to press or push the end of the log with it, or, perhaps, to hold the end in position. But when the power was applied to the chain pulley under Cook's signals and directions, the end of the log nearest him swung round, struck the unlocked lever, which controlled the saw carriage, pushed against the stick Cook was using, and caused him to step back and place one foot in the track along which the carriage passed, or in some way, to get in the path of the carriage. The log evidently struck Cook and the lever about the same time, knocking Cook onto the carriage and causing the lever to release the saw carriage and start it forward at a rapid speed towards the saw, which was running at full speed. Cook was carried against the saw, and so badly mangled that he died in a few minutes thereafter.

To sustain the charge of negligence, appellee insists that the place where Cook was doing his work was unprotected; that there was nothing between the place where Cook was required to stand and the skidway, except a post about 18 inches high and about 10 feet to his rear, which afforded him practically no protection from the logs on the skidway. This fact, in connection with the act of another employé in hauling the log from the river so as to strike the end of the other log and throw it out of position on the skidway, constitute practically all the acts of negligence charged against the appellant.

It further appears that the lever which controlled the saw carriage was left unlocked by Cook when he attempted to have the log removed, and that it was the practice, if not the duty of the sawyer, to lock the lever whenever he left it beyond his reach, or control.

[1, 2] From a careful reading of all the evidence, we are clearly of opinion that it not only fails to show any defective appliances, or other facts tending to prove that appellant was negligent, but it shows beyond question that whatever was done at the time of the accident was either actually done, or supervised and directed by Cook, charge of the sawing operations, and the proof of the appellee shows that Cook initiated the movement which resulted in his death. The act of the man in charge of the log car in permitting the log on the car to strike the end of another log lying on the skidway and knock it out of place was not the proximate cause of Cook's death. It might have remained in that position on the skidway indefinitely without causing injury to any one, if Cook had not attempted to remove it. In order to establish proximate cause, it is necessary that a causal connection be shown be

act must have been the cause which produced the injury. The injury was caused, in this case, by the independent and subsequent act

of Cook.

Moreover, all the work done in the mill in connection with the placing of logs was necessarily done with a view of placing the logs where the sawyer could handle them, and the proof clearly shows that the men working with Cook obeyed his signals or spoken orders, to accomplish that purpose. See Red River Lumber Co. v. Newkirk, 12 Ky. Law Rep. 635.

[3] The claim that appellant failed to furnish Cook with a reasonably safe place in which to do his work is not sustained by the proof. On the contrary, the proof shows that appellant's mill was built in the way that sawmills are usually and generally built, and contained no dangerous places beyond such as are necessarily found in all sawmills. It is impossible to avoid the conclusion that the one controlling act that caused this unfortunate accident to Cook was his act in attempting to remove the log.

[4] This court has repeatedly held, in conformity with the weight of authority generally, that negligence will not be presumed; it must be alleged and proved. 25 Cyc. 1446; Johnston's Adm'r v. East Tennessee, Virginia & Georgia Ry. Co., 30 S. W. 415, 17 Ky. Law Rep. 67; L. & N. R. Co. v. McGary's Adm'r, 104 Ky. 509, 47 S. W. 440, 20 Ky. Law Rep. 691; Vissman v. Southern Ry. Co., 89 S. W. 502, 28 Ky. Law Rep. 429, 2 L. R. A. (N. S.) 469; Reliance Textile Works V. Williams, 136 Ky. 579, 122 S. W. 207, 124 S. W. 850.

We conclude, therefore, as was aptly said in Louisville Gas Co. v. Kaufman-Straus & Co., 105 Ky. 158, 48 S. W. 434, 20 Ky. Law Rep. 1069, that the evidence is not sufficient to authorize a judgment transferring the money or property of the defendant to the possession and profit of the plaintiff, and that the circuit court should have sustained appellant's motion for a peremptory instruction, directing the jury to find for the defendant. Judgment reversed.

WHITAKER et al. v. WHITAKER'S ADM'R. (Court of Appeals of Kentucky. Nov. 10, 1915.) 1. WILLS 714-CONSTRUCTION - INTEREST DEVISED-SATISFACTION OF CLAIMS.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1698-1703; Dec. Dig. 714.1 2. WILLS 439 - CONSTRUCTION-PURPOSE OF CONSTRUCTION.

The only purpose of rules of construction is to give effect to the intent of the testator. Dig. §§ 952, 955, 957; Dec. Dig. 439.] [Ed. Note.-For other cases, see Wills, Cent.

Appeal from Circuit Court, Boone County. Action by Sarah F. Whitaker's administrator against Mary L. Whitaker and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss.

Clore, Dickerson & Clayton, of Cincinnati, Ohio, for appellants. S. Gaines, of Burlington, for appellee.

TURNER, J. In 1882 Thomas S. Whitaker and Sarah F. Whitaker had been married for several years, and lived upon his farm of about 300 acres in Boone county. They did not then have, and never had, any children. At that time he bought another tract of land of about 38 acres, known as the Gaines farm, and in paying for same used $1,200 of her money. They moved to the Gaines farm, and lived there until his death, in 1908. After his death there was found among his papers the following instrument: "$1,200.00

"Boone County, Kentucky, May 5th, 1885. "Due Sarah F. Whitaker twelve hundred

($1,200.00) dollars on demand, it being the amount she paid on the land at Gainesville bought of A. S. Gaines. Witness my hand and Thomas S. Whitaker."

seal.

Thomas S. Whitaker left a will, by the terms of which he devised to his wife in fee the Gaines farm of about 38 acres, above referred to, and also devised to her for life the 300-acre farm upon which they had formerly lived, and devised to her for life all of his personal estate. The value of the Gaines farm was $3,000 or more, and the value of the 300-acre tract about $10,000, and his surplus personal property after the settlement of his estate amounted to something over $4,000. The wife was named as executrix in the will, but declined to qualify, whereupon her nephew, J. M. Grant, qualified as administrator with the will annexed, and proceeded to, and did, settle the estate.