the one side and some nieces and nephews and other collateral kindred of the husband on the other. We think the evidence of the husband's recognition of his indebtedness to his wife on account of this money was sufficient to create a trust in her behalf that entitled her to recover from his estate the amount he held for her. Bohannon v. Bohannon, 29 Ky. L. R., 143.

As to her claim for $134.00, if she paid out of her own money, as the evidence shows she did, this amount in settlement of valid debts against the estate, we know of no reason why she should not be allowed to assert a demand against the estate for the amount so paid. Where the widow pays out of her own means demands due by her husband that she is not personally responsible for, she has the same right to collect the amount so paid from the estate as any other creditor.

It is said in brief that there was a surplus of $25.00, and that one-half of this was paid to the widow, when no part of the surplus should have been paid to her until the debts were paid, and therefore her claim should have been reduced at least by this sum. But if we understand the record, it does not show that she received any part of this surplus of $25.00.

The evidence also shows that there was set apart to the wife personal property of the value of about $184.00, upon her claim that it was her separate property and no part of her husband's estate. Appellant contends that the evidence does not show that she was entitled to this property. The evidence is conflicting, but we think there was sufficient to justify the court in holding that it belonged to the widow.

It is further contended that the court should not have allowed the Johnsons anything on account of the claims. asserted by them, as the evidence does not show that they were entitled to recover anything on these claims. There is considerable evidence on both sides in the record as to the validity of these debts and the amount due; but we are not disposed to disturb the finding of the trial judge on these questions of fact.

Wherefore the judgment is affirmed.

Dalton v. Dalton.

(Decided December 15, 1911.)

Appeal from Fayette Circuit Court.

Alimony-Motion to Reduce Amount of-Appeal from Judgment Refusing to Reduce Amount-Practice.-Upon an appeal from a judgment refusing to reduce the amount of alimony that had been awarded, appellant having filed no schedule in the lower court, and having filed no bill of exceptions as provided by the Code, he lost his right to have the rulings of the trial judge upon the motion reviewed here.

W. C. G. HOBBS for appellant.

ALLEN & DUNCAN for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

This is an apeal from a judgment of the Fayette Circuit Court, refusing to reduce the amount allowed as alimony to the appellee, Annie L. Dalton. It appears from the record that, prior to 1905, the appellee was divorced absolutely from her husband, R. F. Dalton, the appellant, and he was directed to pay her $65.00 a month for the support of herself and eight children until further order of court. For some years appellant complied with this order of court, but finally, conceiving that it was burdensome to him, and that the changed condition of his family justified its reduction, he made application, upon notice, to have the amount reduced. After hearing this motion the judge refused to make the reduction asked, and dismissed the application. From that ruling and judgment this appeal is prosecuted.

For appellee it is insisted that the appeal should be dismissed upon two grounds, first, because no schedule was filed in the lower court, as provided by section 737 of the Civil Code, and second, because no bill of exceptions was filed, as provided by section 334 of the Code.

As to the first ground relied upon to support the motion to dismiss the appeal, it is sufficient to note that in Cassella v. Seaman & Hughes, 13, Bush, 244, Louisville & Nashville R. R. Co. v. Brice, 83 Ky. 210, and Nelson county v. Bardstown & Louisville Turnpike Co., 24 Rep. 2056, it was held that where an appeal is prosecuted from a judgment of the lower court to this court it must be ac

companied by a transcript of the entire record, unless the appellant wishes to rely upon only a partial record, in which event a schedule must be filed within the time prescribed, and this must show specifically the portions of the record desired transcribed. In the case at bar no schedule at all was filed, and it is apparent that the record before us is but a partial record of the proceedings in that case.

Upon the second ground relied upon, it appears from the affidavit of the clerk that upon the trial of this motion oral testimony was heard, in addition to the affidavits which have been copied in the record. But there is no transcript of this oral evidence in the record. No bill of evidence was prepared, and we cannot pass upon the merits of this controversy upon the partial record before us, and must presume that the evidence before the trial judge justified the conclusion reached by him.

This Code provision, requiring the unsuccessful party to enter his objection to the ruling of the court at the time it is made, and ask for and receive time within which to prepare and tender a bill of evidence and exceptions, either at that term or at any time given by the court, not to exceed a day in the succeeding term, to be fixed by the court, is mandatory; and when appellant failed to comply with this provision of the Code he lost his right to have the rulings of the trial judge upon his motion reviewed here. This identical question was decided in Layton v. Weed Sewing Machine Co., 4 Rep. 263; Louisville & Atlantic Coal Co. v. Morris, 132 Ky. 223; Dixon v. Wood, 23 Rep. 1004, and Southern Railway Co. v. Thurman, 25 Rep. 804.

1.

Judgment affirmed.

L. & N. R. R. Co. v. Engleman's Admx.

(Decided December 15, 1911.)

Appeal from Lincoln Circuit Court.

Railroads-Action Against for Death of Person-Former Opinion. For a statement of the facts of this case, see 135 Ky., 515. The failure to define the word "customary" in an instruction with reference to the giving of signals, does not render it faulty where the meaning was explained to the jury, and the extent to which the signal should be given.

2.

Same Pleading-Instruction-Measure of Damages.-The measure of damages in every case is such sum as will reasonably compensate the estate of the deceased for the destruction of his power to earn money, and this without regard to the amount sued for, and an instruction failing to inform the jury of the amount sued for was not erroneous.

J. W. ALCORN, BENJAMIN D. WARFIELD, FRED P. CALDWELL for appellant.

ROBT. HARDING, EMMET PURYEAR and P. M. McROBERTS for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

This is the second appeal of this case. The former opinion is found in 135 Ky. 515. The facts are fully stated in that opinion, and for the purposes of this appeal need not be restated here. Upon the former appeal judgment for $10,000 was reversed and the case remanded for a new trial because of error in the instructions. Upon the last trial plaintiff again recovered a verdict for $10,000, and the railroad appeals.

A reversal is sought upon four grounds: first, that the court erred in refusing to peremptorily instruct the jury to find for the defendant; second, that the verdict is not sustained by sufficient evidence, and a new trial should be granted for that reason; third, that the damages are excessive; and fourth, that the court did not properly and fully instruct the jury.

The accident occurred at a private crossing, and upon the former trial there was evidence tending to show that the defendant company, through its agents in charge of its trains, had been in the habit or custom of giving signals of their approach to the Woods crossing, the one at which appellant's intestate was killed. One of the grounds for reversal was that the court had failed to instruct the jury on this point; that is, left it to determine whether or not the agents of appellant road in charge of its trains had been in the habit or custom of giving signals of the approach of trains to this crossing to such an extent that persons living in that locality and using the crossing had reason to rely on such signal being given. Upon the last trial much of the evidence of both plaintiff and defendant was directed toward establishing this mooted question. Plaintiff introduced quite a number of witnesses who testified that it was the

custom of those in charge of trains to give signals of their approach to this crossing, the estimates of these witnesses varying from fifty to ninety per cent, that is, from fifty to ninety per cent of the trains passing over this road signalled for this crossing; and all agreed that this custom was so universally observed that they relied on such signals being given. To combat this evidence the appellant company introduced twelve of its engineers, eleven of whom testified that it was not their custom to signal the train's approach to this crossing, and that they never did so except in cases where they saw someone or something upon or near it. One engineer, the one who was in charge of the train that ran over appellee's intestate, testified that he invariably gave warning of his train's approach to this crossing. It appears that these twelve engineers constitute about one-fourth of the total number of engineers operating trains over this division of appellant's road, and inasmuch as eleven of these men testified positively that it was not their custom to give warning of their train's approach to this crossing, it is urged that this positive evidence outweighs and in fact overwhelms the evidence offered by plaintiff to the effect that it was customary for trains passing over that road to give warning of their approach to this crossing.

To this line of reasoning, however, we cannot subscribe, for, conceding that these eleven engineers who have testified told the truth, they constituted but onefourth of all the engineers running on that division of the road, and there is nothing in the record to negative the idea that the other three-fourths may not have regularly given warning of their trains' approach to this crossing. Had appellant wanted to show that those in charge of its trains were not in the habit of giving warning of their approach to this particular crossing, it had it in its power to do so by introducing the evidence of all, or at least a majority, of its engineers. The evidence introduced by plaintiff made out a prima facie case of custom on the part of the company to give warning of its trains' approach to this crossing, and this evidence is not overcome by the evidence of less than twenty-five per cent of those operating its trains to the effect that they had not observed such a custom. Certainly, with the evidence in this condition we would not be justified in holding that appellant was entitled to a peremptory