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influence of his official position and association upon those having authority to make the increase; and, upon the other hand, it would induce the enemies, which he might accumulate by a strict performance of his duties or his political adversaries, to take revenge upon him by decreasing his compensation to a Sum below what was just and reasonable, Or to Such a limited Sum as to compel his abandonment Of the Office.

In Commonwealth et al. V. Addams, 95 Ky. 590, 26 S. W. 582, 16 Ky. Law Rep. 135, construing section 161 of the Constitution, this Court said:

“So, by these express provisions of the organic law, it was evidently intended to prevent any interference with the salary or compensa£,of a public officer during his term of ofCe.

Where the duty devolves upon the fiscal court of a county to fix the compensation or Salary of any county officer, it is the duty Of the fiscal court, by an Order entered before the election of the officer, to fix the salary for each of the years during the term for which he holds the Office, and When such Order has been made fixing the salary of a county officer for the ensuing years of his term, previous to his election, the fiscal court has no power to change his compensation, and to make it either greater or less, after his election. Piercy v. Smith, 117 Ky. 990, 80 S. W. 201; Breathitt County v. Noble, 116 S. W. 777; City of Louisville v. Wilson, 99 Ky. 599, 36 S. W. 944, 18 Ky. Law Rep. 427, Marion County v. Kelly, 112 Ky. 831, 56 S.W. 815, 22 Ky. Law Rep. 174; Barrett v. City of Falmouth, 109 Ky. 151, 58 S. W. 520, 22 Ky. Law Rep. 667; Jefferson County v. Waters, 114 Ky. 48, 70 S. W. 40, 24 Ky. Law Rep. 816; Butler County v. James, 116 Ky. 575, 76 S. W. 402, 25 Ky. Law Rep. 801; McNew, etc., v. Commonwealth, for Use, etc., 123 Ky. 119, 93 S. W. 1047, 29 Ky. Law Rep. 540; Fox v. Lantrip, 162 Ky. 178, 172 S. W. 133; Hurt V. Morgan County, 166 Ky. 364, 179 S. W. 255.

For the reasons stated, the judgment appealed from is affirmed.

WILSON et al. V. MARSEE et al. (Court of Appeals of Kentucky. Oct. 28, 1915.)

1. DEEDS 3:100, 101 – CONSTRUCTION – ExTRANEOUS CIRCUMSTANCES. Where the meaning of an expression in a deed is not clear, evidence of the surrounding circumstances and of the subsequent acts of the parties construing the deed is admissible. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 233, 239; Dec. Dig. Q:100, 101.]

2. LOGS AND LOGGING 3:33–CONVEYANCES— RESERVATIONS OF TIMBER – “FREE CONCOURSE TO TIMBER.’’ Where a deed, given pursuant to a bond for a deed which reserved timber rights, declared that the grantor should have “free concourse to the timber,” and the grantees for a long time

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CLAY, C. In the year 1880 William J. Marsee was the owner of a tract of land in Bell county, which he contracted by title bond to convey to Jerry Turner. Turner assigned the bond to W. C. Wilson. Before making a deed to the land, William J. Marsee died, leaving three children, Amanda Marsee, Thomas Marsee, and John F. MarSee. After William J. MarSee’s death his property was divided, and that part of the property in controversy in this action fell to his two children, Thomas and Amanda, who, for the purpose of carrying out their father's contract, executed and delivered to Madaline Turner and the heirS of Jeremiah Turner a deed to the property. The habendum clause of the deed is as follows:

“To have and to hold the same forever, with the condition that Thomas Marsee and Amanda Marsee have free concourse to timber.”

The evidence ShoWS that the title bond contained Substantially the Same proVision. In 1882 William C. Wilson bought the land by title bond and has been in possession of the land ever since. From the time of the conVeyance, up to Within three Or four years of the filing of this Suit, Thomas Marsee has exercised the right of going on the land and hauling timber therefrom. During that time he has frequently Cut timber and made it into boards, staves, and slats, and on a number of Occasions he Would employ Wilson to aSSist him in this work and pay him therefor. In the year 1911 W. C. Wilson brought this action against Thomas Marsee to quiet his title to the land in question. Later other plaintiffs joined with him in the action, and Amanda Marsee was also made a defendant. The defendants pleaded title to the timber under and by virtue of the deed above referred to. On final hearing the chancellor held that the defendants acquired by the deed an undivided One-half of all the timber of every kind and character standing and growing upon the tract when the deed was

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

executed, and that they are now owners Of an undivided One-half of all the timber still remaining on the land. He further adjudged that the plaintiffs were the OWnerS Of the other undivided one-half. Plaintiffs appeal.

[1, 2] The case turns on the meaning of the Words “free concourse to timber.” Plaintiffs contend that these Words are meaningless and confer no rights on the defendants. It may be conceded that the Word “Concourse” is inaptly used, but the courts will not defeat the intention Of the parties to a contract because of the misapplication or misuse of a particular word. Where the language employed is uncertain in its meaning, it is proper to consider the nature of the instrument, the situation of the parties executing it, and the objects which they had in view. Davis V. Hardin, 80 Ky. 672; Tanner V. Ellis, 127 S. W. 995. Here the grantors were conveying a certain tract of land. They desired to retain certain rightS in the timber. To express these rights, they made use of the language referred to. It being evident that Something Was intended by the language employed, it should be given a meaning that will carry out such intent. Furthermore, the Subsequent acts Of the parties, showing the construction they have put upon the agreement, may be looked to, and are entitled to great Weight in determining what the parties intended. Jacoby V. Nichols, 62 S. W. 734, 23 Ky. Law Rep. 205; District of Columbia V. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585, 31 L. Ed. 526. Though plaintiff W. C. Wilson claims to have objected to the defendants' using the timber, it is manifest that if he made any protest at all it was within a comparatively short time before the bringing of this action, for he himself admits that on numerous Occasions he was not only present when the defendants cut and removed timber from the land, but actually assisted them in Such Work and received from them compensation therefor. Considering the language in the light of the circumstances Of the parties and Of their subsequent conduct, we think it clear that the defendants intended to and did reserve a certain interest in the timber, With the right to go upon the land for the purpose of removing it.

[3] But plaintiffs contend that defendants are entitled either to all of the timber or to none of it, and that the judgment is therefore erroneous, because it divides the timber equally between the plaintiffs and defendants. In view of the fact that defendants' right to the timber is not limited in the deed, we think they are entitled to at least onehalf thereof, and plaintiffs cannot complain because, under the judgment of the court, the defendants Were given leSS than they Were entitled to.

Judgment affirmed.

commonwealth V. McCAULEY'S EX’R.

(Court of Appeals of Kentucky. Oct. 27, 1915.)

1. APPEAL AND ERROR 3:1170 - REVIEW HARMLESS ERRoR. In view of Civ. Code Prac. § 134, prohibiting reversal for harmless errors, a judgment which is a correct decision will not be disturbed because based on an erroneous reason. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540–4545; Dec. Dig. Q:1170.] 2. DEEDS @:143—CONSTRUCTION - INTERESTS CONVEYED. Where a landowner conveyed property, reserving a life estate and power to revoke the deed at any time before death, the grantee took a defeasible fee in remainder, and, where there was no revocation before death, the property passed to him regardless of the grantor's will. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 453-455, 465–468; Dec. Dig. G->143.] 3. TAXATION 3->861 - INHERITANCE TAXES -STATUTE. Ky. St. § 4281a, subsec. 1, which became effective June 13, 1906, imposes taxes upon all property which shall pass by will or by the intestate laws of the state from any person who may die seised or possessed thereof or which shall be transferred by deed, grant, sale, or gift made in contemplation of death. Eleven years prior to the enactment of the statute a landowner conveyed property to another by a deed reserving a life estate to herself and power to revoke. The power was not executed, but she did not die until after the inheritance tax law went into effect. Held, that the law had no retroactive effect, and, as the grantee’s interests were fixed before the grantor's death, no tax could be collected. [Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1676; Dec. Dig. 3:861.]

Appeal from Jefferson Circuit Court, Chancery Branch, First Division.

Action by the Commonwealth of Kentucky, by a revenue agent, against Winifred McCauley's executor, begun in county court and appealed to circuit court. From a judgment there for defendant, plaintiff appeals. Affirmed.

Matt J. Holt and A. Scott Bullitt, both of Louisville, for the Commonwealth. Lee Hamilton and Strother & Hamilton, all of Louisville, for appellee.

SETTLE, J. This is an appeal from a judgment of the Jefferson circuit court, chancery branch, First division, dismissing a proceeding instituted by a revenue agent to recover an inheritance tax claimed to be due the commonwealth from the estate of Winifred McCauley, deceased, under section 4281a, Kentucky Statutes. The proceeding Was Commenced in the Jefferson county court, and upon being there dismissed was appealed to the circuit court, with the result Stated. The dismissal in the county court Was based upon the ground that the estate was not liable for the inheritance tax claimed. The dismissal of the appeal in the circuit court was adjudged under article 2, ch. 116, § 6, ActS 1912, On the ground that the

proceeding was pending in that court on July 1, 1912, and had been pending therein since July 6, 1909, and that for more than 90 juridical days prior to July 1, 1912, no Steps had been taken by the Officer instituting the same. [1] It is insisted for appellee that, although the circuit court may have erred in adjudging the dismissal of the proceeding upon the ground indicated, yet if, On consideration of the Whole record, the judgment was authorized upon a different ground, and for that reason is found to be correct, It Should not be reversed on this appeal. This rule has been recognized by us in the following cases: Commonwealth v. Campbell, 128 Ky. 252, 107 S. W. 797, 32 Ky. Law Rep. 1131; Fritz v. Tudor, 1 Bush, 28; Cornell Wind Engine & Pump Co. v. Breed, 13 Ky. Law Rep. 365; Harrisons v. Baker, 1 J. J. Marsh. 318; Clark V. Boyd, 6 T. B. Mon. 293—and is expressly sanctioned by a proV1sion of section 134, Civil Code, which declares: “The court must, in every stage of an action, disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” . It follows from What has been Said that, if the estate left by Winifred McCauley IS not liable for the inheritance tax attempted to be recovered by the revenue agent, the judgment of the circuit court dismissing the proceeding, though rested upon a different and erroneous ground, should be affirmed. [2] Winifred McCauley died October 20, 1906, leaving a will whereby she devised to P. M. J. Rock, a Catholic priest, her entire estate. At the time Of her death She OWned a life estate in certain lots in the City of Louisville, and, in addition, personal property admittedly of less value than $500, which exempts it from the inheritance tax. Consequently the only matter in controversy is as to Whether the real estate is Subject to the tax. The testatrix by deed Of May 25, 1895, conveyed to P. M. J. Rock the lots in question, subject to a life estate retained in and to the Whole by the grantor, and reserWed to the latter the power to revoke the deed at any time before her death, which power of revocation, it is admitted, was never exercised by her. So the title conveyed Rock by the deed was a defeasible fee in remainder, which vested immediately upon the delivery to the grantee of the deed, subject to be defeated by a revocation of the deed by the grantor. As the power of revocation was never exercised by the grantor, the life eState retained by her in the property ceased at her death, which left Rock its sole owner. The will left by Winifred McCauley became effective as of the date of her death, but, although it made Rock the sole devisee of all the estate of which she died possessed, his title to the real estate passed to him under the deed, and not by the devise contained in

the Will. Not even the life estate Which the testatrix had reserved in the deed went to him by the will, because that ceased with her death. - [3] The act under which the inheritance tax is claimed by the appellant was approved March 15, 1906, and became effective June 13, 1906, more than 11 years after the execution and delivery of the deed in question. The act (Section 4281a, SubSec. 1) declares: “All property which shall pass, by will or by the intestate laws of this state, from any person who may die seised or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state, or any interest therein, or income therefrom, which shall be transferred by deed, grant, sale or gift, made in contemplation of the death of the grantor or bargainor, or intended to take effect in possession or enjoyment after such death, to any person or persons,” etc. It is the manifest meaning of this language of the act that the inheritance tax is to be imposed as to property that may become subject thereto after the act becomes effective. The act therefore cannot be given a retroactive effect. This question seems to have been Settled in Winn, Sheriff, etc., V. Schenck, etc., 110 S. W. 827, 33 Ky. Law Rep. 615. In that case a will was made in 1899 by a son, devising to his mother one-half of his entire eState, under a contract made at the time With his mother to keep a valid will at all times devising to her son's godson one-half of the property she received from the former, which will she made and under which the godson received the property so devised by the mother. The mother died after the inheritance tax law of 1906 was enacted in this state. Upon this state of case we held that, as at the time the contract between the son and mother Was made there was no inheritance tax law in force in this state, the property received by the godson under the will of the mother WaS not subject to the payment of such tax. In the opinion it is said: “We have been unable to find any case directly in point, nor are we referred to any such, but questions somewhat similar have arisen in other jurisdictions where the inheritance tax laws have been longer in force. In the case of Nathaniel H. Emmons v. Shaw, 171 Mass. 410 [50 N. E. 1033], the Supreme Court of Massachusetts passed upon a question somewhat similar. There one Thomas B. Wales had devised certain property to his son, George W. Wales, for life, subject to his disposition by will, but, in the event that he died intestate, with further limitations as to the fee. The son disposed of the property by will under the power, and, an inheritance tax law having been adopted after the death of his father, but before his death, an effort was made to collect the tax from his property. The court declined to enforce it, and in so doing said: ‘What is done, under a power of appointment is to be referred to the instrument by which the power is created, and operates as a disposition of the estate of the donor.” And the Supreme Court of New York, in the case of In re. Lansing's Estate, 182 N: Y. 238 [74 N. E. 882], in passing upon a similar question, held that, where property was devised by a man to his daughter for life, and after her to her heirs at law, with the power to devise the remainder by will in such manner and under such limitations as she might desire, and the daughter, in the exercise of this power, devised the property to her own daughter absolutely, the daughter's will operated to transfer nothing that was not given to the heir at law by the grandfather's will, and, as at the time the will of the grandfather took effect there was no law imposing a transfer tax, the property was not subject to said tax. So with the case at bar. At the time that the contract was entered into between Clarence R. Greathouse and his mother, which secured to appellee one-half of the estate of Clarence R. Greathouse, there was no inheritance tax in force in this state, and consequently the trial court did not err in holding that the property which appellee received was not subject to the payment of said taxes.” It is apparent from the facts of the inStant case that from the time of the delivery to him of the deed from Winifred McCauley appellee’s interest in the real estate from which it is sought to collect the inheritance tax Was liable to execution under a judgment against him for debt, subject to the grantor’s life estate and power of revocation. As his title to the Several parcels of real estate was acquired by the deed of May 25, 1895, and not under the will subsequently made by the grantor, and the authority under which appellant claims the right to collect Such tax was not conferred by statute until after the execution and delivery of the deeds —in fact, 11 years thereafter—the property cannot be made liable for its payment, unless the statute be given a retroactive effect, which should not be done. Furthermore, as the judgment of the circuit court dismissing the proceeding would have been authorized upon this ground, it is unnecessary to conSider whether its dismissal was justified on the ground upon which that court actually rested it. Wherefore the judgment is affirmed.

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term or during time thereafter allowed cannot be treated as a bill of exceptions.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2461, 2462, 2465–2471; Dec. Dig. G->553.]

4. APPEAL AND ERROR 3:671 - REVIEW QUESTIONS PRESENTED. Where the record does not contain the evidence, the only questions are whether the pleadings and proceedings are sufficient to Support the judgment. - - - [Ed. Note.—For other cases, see Appeal and #. Cent. Dig. §§ 2867—2872; Dec. Dig. 3:

5. APPEAL AND ERROR & 708 – REVIEW QUESTIONS PRESENTED. Where exceptions to confirmation of a judicial sale are heard on evidence, the matter will not be reviewed on appeal, where the evidence is not in the record. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2948; Dec. Dig. Q: 708.]

6. JUDICIAL SALES @:31—PROCEEDINGS-EXCEPTIONS. - Though written exceptions to judicial sale were not traversed in writing, they are not admitted, and the exceptor is not entitled to have them sustained for that reason. [Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 59–67; Dec. Dig. 3:31.]

Appeal from Circuit Court, Shelby County.

Action by S. L. Kerr, committee of W. L. Graves, an imbecile, against W. C. Lyons, Florence Ragsdale Graves, and another. The first-named defendant cross-petitioned, and from an order confirming a sale of the incompetent's lands, his committee appeals, and Florence Ragsdale Graves was named as an appellant. Affirmed on the committee's appeal, and that of the last-named appellant dismissed.

Beard & Rives, of Shelbyville, for appellants. Beard & Pickett, Of Shelby Ville, for appellee.

HURT, J. This was a suit by S. L. Kerr, committee of W. L. Graves, an imbecile, against W. L. Graves, his wife, Florence Ragsdale Graves, and W. C. Lyons, a creditor of the Graves. The action was instituted for the sale of certain real estate which was owned by W. L. Graves to pay his indebtedness. A guardian ad litem was appointed to defend the action for W. L. Graves, and he filed a report, in which he alleged that he could make no affirmative defense for him. An order was entered in the case referring the cause to the master commissioner of the court to receive and hear proof of claims against the estate of the imbecile, and to report same. The appellee, W. C. Lyons, filed an answer, which he made a cross-petition against W. L. Graves and Florence Ragsdale Graves, and set up a note for the Sum of $2,000, which he alleged had been executed to him by W. L. Graves and Florence Ragsdale Graves, and a mortgage to secure the payment of the note upon the lands sought to be sold, and claimed a prior lien thereon for the amount of his debt, and asked that a SuffiCiency of the land be sold for that purpose of applied to the payment of his debt. A Summons upon the cross-petition was issued and served upon W. L. Graves and Florence Ragsdale Graves. Florence Ragsdale Graves never appeared in the suit in any way. A reply WaS filed to the anSWer and CrOSS-petition by the committee of W. L. Graves. No personal judgment was rendered against W. L. Graves, nor his committee, nor Florence Ragsdale Graves upon the note in favor of Lyons, but the note was filed, as other debts against Graves, With the commissioner, and allowed and reported by the commissioner, and the report confirmed to the extent of $1,950, with interest from the execution of the note. A judgment Was rendered directing a Sale Of the land for the Satisfaction of the debts, Which made a total Sum of about $3,500, and further adjudged that Lyons had a prior lien upon the land for the Satisfaction of his debt. No exceptions were taken to this judgment by any one. Thereafter, in pursuance of this judgment, the land was Sold at decretal Sale, When the appellee became the purchaser, at the sum of $2,525, and it was so reported. The property was appraised before the sale at the Sum of $2,600. The committee of W. L. Graves filed exceptions to the report, which were to the effect that the price at which the land was sold was inadequate and less than its value; that the purchaser was a creditor to the sum of $2,200, and previous to the Sale had induced bidders and prospective bidders for the land not to bid for it, and by his representations had prevented one bidder who would have bidden $3,000 for the land from bidding at all; and that rumors had been circulated, the authors of Whom were unknown, to the effect that the purchaser at the sale would not acquire a good title to the land, and on account of the last two named grounds it Was alleged a fair Sale Was not had, On account Of bidders and prospective bidders being deterred from bidding at the Sale. A hearing was had upon the exceptions, which resulted in a judgment Overruling the exceptions and confirming the report of Sale, and ordering the commissioner to execute and report a deed to the purchaser, and permitting the purchaser to pay the sale bonds before maturity, if he desired. The Committee excepted to this judgment and prayed an appeal to this Court, Which was granted. The appellant Florence Ragsdale Graves did not object Or except to the rendition of this judgment, or to any order or judgment in the entire case. The proof upon the hearing Of the exceptions was given orally, in Open court, but the Official Stenographic reporter of the court Was Ordered to take notes of the evidence. He was also ordered to prepare a transcript of the evidence heard, and to file same as a part of the record of the case. It appears that the judgment appealed from was rendered on the 12th day of February, 1915. There is no order showing that the transcript of the evidence was ever

filed in court, or made a part of the record, or examined or approved by the judge of the court. What purports to be a transcript of the evidence, certified by the official stenographic reporter under date of March 12, 1915, and indorsed as examined and approved by the judge of the court over his signature, is on file With the record. [1] The appellee has entered a motion in this court to strike the purported transcript Of the evidence from the record, upon the ground that it was never filed in court, and there is no order of court showing the examination or approval Of it by the court Or making it a part of the record, and it was Signed by the judge out of term time. A further motion was made to dismiss the appeal Of Florence Ragsdale Graves, and both of these motions were Ordered to be passed to the merits of the case. As to the second of the motions, there are but two ways in which an appeal may come to this court from an inferior jurisdiction Where the amount in controversy is as in this case. The court from the judgment of which the appeal is taken may grant the appeal as a matter of right to the One asking it, or the appeal may be granted by the clerk of this Court. Florence Ragsdale Graves did not file exceptions to the report of sale, neither did she except to the judgment of the court overruling the exceptions, nor did she pray nor Was She granted an appeal from the judgment. She has not secured an appeal from the clerk of this court. Hence there is no appeal pending in her behalf. The motion to dismiss her appeal Will be treated as a motion to Strike her name from the record as an appellant, and must be Sustained, but this action does not interfere With any right she may have from which she is not precluded by the proceedings below. [2, 3] The motion to strike from the recOrd the bill of evidence must also be Sustained. Where in a proceeding in equity oral testimony is given and heard and a party deSires the benefit of it upon an appeal, it must be made a part of the record by a bill of exceptions, which must be prepared within the Same time and in the same manner as a bill of exceptions is required to be prepared in actions in Ordinary. Shannon V. Stratton, 144 Ky. 26, 137 S. W. 850; Knecht v. Home Telephone Co., 121 Ky. 492, 89 S. W. 508, 28 Ky. Law Rep. 456; Dupoyster v. Ft. Jefferson Imp. Co., 121 Ky. 518, 89 S. W. 509, 28 Ky. Law Rep. 504. A bill of exceptions must always be made a part of the record by an Order of the court. The bill must be prepared and presented to the judge of the Court for his approval and signature during the term Of court at which the judgment becomes final, unless further time for its preparation is given by an order of the court. Civil Code, $ 337, subsec. 2. It was never intended that the stenographer’s bill of evidence should supply the place of and dispense with the necessity of a bill of exceptions filed by an

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