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requirement concerning the repair of the street for 5 years by the contractor affect the lien against the abutting property. In construing the sections of the statute, supra, the court in the Lindsey Case said:

“It will thus be seen that by the statute the work must be performed under the supervision of the mayor and engineer, and subject to the acceptance, of the council; that when the council shall have passed an ordinance, and made a contract pursuant to it, and shall have received the work as done according to contract, then the liability of the owners of the property chargeable with the cost shall be fixed, and in such cases the defendant shall not be allowed to make the defense that the work was not done according to contract, as against the plaintiff in the action, but that the court trying the case shall have the power to correct any mistake or error of the city, engineer, or of the common £ountil, so as to do complete justice to all parties.

The Court then refers to the cases Of Gleason v. Barnett, 106 Ky. 125, 50 S. W. 67, Orth v. Park, 117 Ky. 779, 79 S. W. 206, 80 S. W. 1108, 81 S. W. 251, 25 Ky. Law Rep. 1910, 26 Ky. Law Rep. 184, 342, and Lindenberger Land Co. v. Park, 85 S. W. 213, 27 Ky. Law Rep. 437, and then adds:

“The case falls within the rule thus laid down. The provision in section 3453, that in such cases the defendant shall not be allowed to make defense that the work was not done according to contract, is to be read in connection with the provision in section 3458, that the court trying the case shall have the right to correct any error or mistake made by the city engineer on council, so as to do complete justice to all parties. The meaning of the two sections, taken together, is that the defense that the work was not done according to contract shall not exempt the property from liability, but that the court trying the case shall render such judgment against the property as will do complete justice to the parties.”

. [1] It must be admitted that the criticism which counsel for appellants make of the interpretation given to the Sections of the Statute in that opinion is not altogether without merit, and if the question were being preSented noW for the first time We WOuld not be inclined to adopt the interpretation there given without some hesitation; but the Lindsey Case has been followed since its rendition and the doctrine therein announced has been approved in the cases of Nell v. Power, 107 S. W. 694, 32 Ky. Law Rep. 952, and City of Lexington v. Walby, 109 S. W. 299, 33 Ky. Law Rep. 116. So that the improvements of public ways in cities of the third class have been governed by the statute as construed and followed in the Lindsey Case, and we are admonished that under the doctrine of Stare decisis We should not now depart from that construction, for after all the completed statute is the construction given to it by the highest court within the jurisdiction where it preVails, and Since it would have been competent for the Legislature to pass a statute conforming to the construction given to the SectionS, Supra, in the Lindsey CaSe, no hardship can result from a continued adoption of that construction. This being true, the only remaining points urged for a reversal are

that the case was improperly revived and the refusal of the court to permit a recovery either against plaintiff or the city upon the counterclaim. [2] What we have heretofore said is suffiCient to show that the suit was properly reVived against the heirs of the Original defendant. The insistence that it should have been revived against her administrator is Without merit, since no personal judgment Could be obtained against the owner of the abutting property in cases like this, nor was any attempted to be rendered. [3] Briefly considering the objections to the disallowance of the counterclaim, it is, the settled policy of the law generally, and Which prevails with this court, that in this character of case the municipality, although it might be liable for damages in an independent suit, as we shall see, cannot be made to respond in such damages upon a cross-petition or counterclaim in a suit like this, brought for the purpose of enforcing the lien against the abutting property for the price of the improvement. The reason assigned by the law for disallowing damages as a defense in this character of proceeding is that the amount sought to be collected is in the nature of a tax, and it cannot be offset by independent causes of action between the city and the property Owner. Bayes v. Town of Paintsville, 166 Ky. 679, 179 S. W. 623, L. R. A. 1916B, 1027; Bodley V. Finley's Ex’r, 111 Ky. 618, 64 S. W. 439, 23 Ky. Law Rep. 851; Board of Council of City of Frankfort v. Brislan, 126 Ky. 477, 104 S. W. 311, 1199, 31 Ky. Law Rep. 867, 32 Ky. Law Rep. 377. If it would be incompetent to allow such COUnterclaim Where the Suit to enforce the lien is brought in the name of the city, it certainly cannot be insisted that such a claim would be allowable on a cross-petition against the city contained in the defendant’s answer, although the city may have been made a party to the suit prior to the filing of the Cross-petition. If the abutting property suffers consequential damage because of the plan of construction adopted by the city, the OWner Of the property might have a remedy against it—a question that is not here preSented; but such remedy must be prosecuted in an independent suit, and not be relied upOn aS a defense to the character of Suit We have here. In the two cases of Bodley v. Finley's Ex’r and Board of Council of the City of Frankfort V. Brislan, Supra, it was held that a counterclaim might be maintained in this character of Suit against the contractor, When Such counterclaim or set-off arose and grew out of matters independent of the execution Of the contract. In the Brislan Case the Counterclaim SOught to be a SSerted Was for tort committed by the contractor by trespassing upon defendant's property and attempting to improve it as a part of the street. In the Bodley Case the defense was in the nature of a set-off, being a debt which the property owner held against the contractor. The Brislan Suit was brought by the city, not in its municipal capacity, but as assignee of the contractor, and this court held that: “As assignee of the contractor’s claim, the city occupies no better position than the contractor, and appellee can set up against it any claim for damages that he could have asserted against the contractor.” In this case, however, the alleged claim for damages is not bottomed upon facts independent of the contract, but grows out of the doing of the work itself, and if the contractor in such instances could be made to respond in damages it would deter many persons from bidding for such contracts, and municipalities, in carrying out their governmental duties to improve their highWays, would find great difficulty insecuring bidders and having the price increased so as to cover the possible loss which might be sustained by damage suits brought by abutting property owners. Our conclusion, therefore, is that the damages sought to be recovered by the counterclaim, both as against the contractor and the city, were properly disallowed. This dispenses with the necessity of passing upon the correctness of the ruling of the court in refusing to submit to the jury the issue raised by the counterclaim. Wherefore the judgment is affirmed.

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1. ExECUTORs AND ADMINISTRATORS @:205(1) —CLAIMs—AGREEMENTS TO WILL-EFFECT. Where deceased, in consideration of care and support, agreed to give claimant, a daughter, all she had when she died, mere fact that she died, after 10 years, with greater liabilities than assets, did not entitle claimant to recover from the administrator, where deceased bequeathed all her property to claimant, as agreed. 2. ExECUTORS AND ADMINISTRATORS Q->511(4) —ATTORNEY FEES-ALLOWANCE. Where administrator's attorney twice resisted motions to remove the administrator, and brought suit for $160, wherein the defendant got judgment on his counterclaim, and the attorney also answered, but did not defend, in a settlement suit, his reasonable fee was $150. 3. ExECUTORs AND ADMINISTRATORS @: 511(3) —SETTLEMENT—ATTORNEY’s FEES. Attorney of judgment creditor of estate who, for his client's benefit, sued for settlement and defeated claim of another claimant, was not entitled to fees out of the estate.

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and John T. Hodge, both of Newport, for appelleeS.

CLAY, C. In the month of December,

1914, Martha J. Girty, a resident of Camp

bell county, died, leaving a will by which she bequeathed to her sons, Louis Girty and George Girty, and her daughter Katherine Hewling $5 each, and to her daughter Jennie Jenkins the remainder of her estate after payment Of her debts. The nominated executor died before the testatrix, and Thomas M. Lett was appointed and qualified as administrator With the Will annexed. Thereafter the administrator brought Suit against Louis Girty to recover the sum of $160, with interest at 3 per cent. from September 20, 1901, Subject to a credit of $5 as of August 22, 1902, and $5 as of November 22, 1906. Louis Girty interposed a counterclaim of $1,625, With interest from December 20, 1914, and recovered a judgment for that amount subject to the aforesaid indebtedness to the estate. Thereafter Louis Girty brought this suit against the administrator, Jennie Jenkins, George Girty, and Katherine Hewling for a Settlement of the estate. In this action Jennie Jenkins filed her answer and cross-petition whereby she sought judgment against the administrator for the sum of $8,000 for services rendered in nursing and taking care of the testatrix during the last yearS Of her life. The instructions to the jury authorized a finding of $5,702 in favor Of Mrs. Jenkins, and the jury fixed the Value of her services at $4,400, and judgment was rendered accordingly. Mrs. Jenkins offered to remit $702 Of this amount. After reference to the COmmissioner an allowance Of $250 was made to the attorney for the administrator. No allowance was made to the attorneys for Louis Girty. On final hearing the COStS and fees allowed Were directed to be paid and the balance of the fund in the hands Of the administrator Was Ordered prorated between Louis Girty and Mrs. Jenkins. Louis Girty appeals. When Martha J. Girty was about 82 years of age she moved to the home of Mrs. Jenkins. She said to Mrs. Jenkins, “Jennie, take good care of me, and when I die, I will give you all that I have got.” To this arrangement Mrs. Jenkins assented. The testatrix continued to live at the home of Mrs. Jenkins until her death 10 or 11 years later at the age of 92. During that time Mrs. Jenkins continued to take care of her mother, and during the last few years of her mother's life She Was compelled to change her mother's clothes and bed clothing very frequently because of her mother's inability to COntrol her kidneyS and boWels. At the time Mrs. Jenkins made the contract to take care of her mother, she knew that her mother had on deposit Something over $2,000, and did not know that Louis Girty had any claim against his mother until after her death. The instructions authorized a recovery by Mrs. Jenkins if the jury believed from the evidence that the labor and services performed by her for her mother were rendered by her With the intention and expectation. On her part and the expectation and agreement on the part of Martha Girty that she should be paid therefor. By another instruction the jury Were told that if they believed from the evidence that Jennie Jenkins agreed to accept in full settlement of the services and articles provided, if any, the provision made by Martha Girty in her will, they should find for the administrator, unless they further found that at the time Such agreement, if any, Was made, Jennie Jenkins Was not aware that the debts of Martha Girty would be larger than Or equal to her aSSetS, and in ignorance of this fact and believing that such fact did not exist made such agreement, in Which event they should not find for the administrator under that instruction. In support of this instruction it is argued that the agreement betWeen the testatrix and Mrs. Jenkins contemplated that Mrs. Jenkins should receive a reasonable compensation for her services, and was entered into in the belief that the testatrix had no debts, and that her estate of over $2,000 Would be sufficient compensation. Hence it is insisted that as the estate Was practically Consumed by debts Mrs. Jenkins, as a creditor, was entitled to recover of the estate a reasonable COmpenSation for her Services. In Considering this question it must be borne in mind

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that the relationship between the testatrix.

and Mr.S. Jenkins Was that of mother and daughter. When the testatrix moved into her daughter's home she did so with the express understanding that if her daughter took goOd Care Of her She WOuld leave her daughter all she had.

[1] This contract the testatrix kept to the

letter. The testatrix Was then 82 years of age. Had she died in the next few days, Mrs. Jenkins Would have been Overpaid.

The longer she lived the less Mrs. Jenkins WOuld receive for her services. Thus the contract was in a sense a chancing bargain; its Value depending On the length of time testatrix lived and On the amount Of the eState devised. Whether the contract proved to be profitable or not was a chance which Mrs. Jenkins necessarily took. Where Such a contract has been executed by the parties, the courts are not at liberty to disregard the

contract and authorize the jury to make an

Other contract for the parties because the former did not prove as profitable as One of the parties expected. Instead of authorizing a finding in favor of Mrs. Jenkins, the trial court Should have peremptOrily instructed the jury to find in favor of the administrator. [2] The next question concerns the propri

ety of the allowance of $250 made to the attorney for the administrator. It appears that the attorney resisted, both in the county court and the circuit court, a motion to remove the administrator. He also brought the Suit against Louis Girty for $160, in Which Girty succeeded in recovering a judgment on his counterclaim. While he filed an answer for the administrator in this action, he did not contest Mrs. Jenkins’ claim, but left that matter to be fought out by the attorneys for Louis Girty and the attorneys for Mrs. Jenkins. Under these circumstances We COnclude that a fee of $250 Was unreasonable, and that the fee should have been fixed at $150.

[3] Complaint is also made of the refusal Of the chancellor to allow the attorneys for Louis Girty a fee payable out of the estate. Before bringing the Settlement Suit Louis Girty had recovered a judgment against the administrator. The real purpose of the settlement Suit Was to Collect this claim. While it is true that he contested the claim of Mrs. Jenkins and has succeeded in defeating that claim, the services thus rendered by his attorneys Were alone for his benefit and not for the benefit of the estate as such. Under these Circumstances We conclude that his attorneys were not entitled to a fee payable out of the estate. Dougherty v. Cummins, 50 S. W. 551, 20 Ky. Law Rep. 1948; Hall V. Metcalfe, 114 Ky. 886, 72 S. W. 18, 24 Ky. Law Rep. 1660. |

Wherefore the judgment refusing Louis Girty’s attorneys a fee payable out of the estate is affirmed, and the judgment in faVor of Jennie Jenkins and John T. Hodge is reversed for proceedings consistent With this Opinion.

(180 Ky. 815)


(Court of Appeals of Kentucky. June 4, 1918.)

1. CoNSTITUTIONAL LAW &=26, 70(3)—PowERS OF LEGISLATURE. There are no restraints upon legislative authority except those imposed by the federal and state Constitutions, and an act cannot be set aside merely on the ground that it is unwise and detrimental. 2. CONSTITUTIONAL LAW Q->87 – GUARDIAN AND WARD (3:276-INSANE PERSONS @:71– MINERALs—LEASING LAND's BEYOND PERIOD OF DISABILITY. Acts 1916, c. 99, in so far as it attempts to authorize guardian of minor or committee of incompetent to lease, under order of court, the coal, oil, gas, and other minerals in land for a period beyond the disability, is unconstitutional as an interference with property rights.

Appeal from Circuit Court, Pike County. Proceeding by Jesse D. Kash, as guardian Of Octavia, Jake, and Ike Smith, to lease land. There Was a judgment authorizing a lease to the highest bidder. The Lawrence E. Tierney Coal Company bought the lease, but Judgment reversed, with directions.

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied.

appeals formally from the report of sale. I accountability as such guardian or committee.

Auxier, Hamn & Francis, of Pikeville, for appellant. P. B. Stratton, Jesse D. Kash, and J. R. Johnson, Jr., all of Pikeville, for appelleeS.

CARROLL, J. This case presents the important question whether a circuit court, pursuant to legislative authority so to do, has the power to lease the mineral land of infants for a term of years beyond their minority, and brings before us the validity of the legislative act attempting to confer upon the cir

cuit court the power it exercised in this case,

The question comes up in this way: In 1916, the Legislature enacted a statute (Laws 1916, c. 99) providing in section 1:

“That the guardian of an infant curator or the committee of a person of unsound mind may lease the real estate, or any interest therein, of such infant or person of unsound mind for the purpose of mining and removing all or part of the coal, oil, gas and any or all other mineral or mineral substances and products therein; together with the usual and reasonable necessary privileges to mine, bore for, store, pump and remove the same, and similar products taken from other land, and the right to dump upon said land refuse or other products taken therefrom and from other land; and to erect upon said land miners’ houses, commissaries and hotels and other houses and equipment reasonably necessary to enable the lessee to carry on the business in the most economical way. Such lease may be for such length of time as the guardian, curator or committee may approve, without being limited to the time at which the disability of such infant or person of unsound mind may be removed.”

In section 2 it was provided that no such lease Shall be made until the guardian, Curator, or committee shall have filed, in the office of the circuit court clerk, a petition against the infants, or person of unsound mind, Setting forth a description of the land, and showing the propriety of making a lease thereto. In Section 3 it was provided that a guardian ad litem Should be appointed to protect the interest of the infants, Or the person of unsound mind, and in section 4 that the court should hear and dispose of the case upon the evidence taken, and if it was made to appear by the evidence of at least two creditable Witnesses that the interest Of the infants, Or perSOn Of unsound mind, would be promoted by the lease, the court Should Order that the property be leased and prescribe the royalty to be paid. Sections 5, 6, 7, and 8 relate to the practice and procedure, and prescribe the descent of the estate upon the death of the infants, Or persons of unsound mind, without having disposed of the same. In section 9 it was proVided that:

The guardian, curator, or committee should settle from time to time his accounts “and upon the infant becoming of age or the person of unsound mind becoming of sound mind shall make a final and complete settlement of all amounts received under such lease, and account for the same as herein and by law provided; and shall

Thereafter the rights and obligations of such former infant or person of unsound mind and the lessee shall be the same as if the lease had been executed originally to the lessee by a person over twenty-one years of age and free from any disability.” In 1917 Jesse D. Kash, as statutory guardian of Octavia, Jake, and Ike Smith, filed his petition in the Pike circuit court against these infants averring that Octavia was 11, Ike 16, and Jake 18, years of age; that they were the OWners of about 2,500 acres of land devised by the will of Jacob Smith, in 1906. to their father for life, with remainder to them in fee; that the land was unfit for cultivation on account of its rough and mountainous character, and its sole value consisted in the Coal thereon ; that the infants have no income, and if they were permitted to lease the coal and mining rights in the land the royalty derived therefrom would be sufficient to educate and maintain them ; he prayed that the court enter a decree authorizing him to lease the property for coal-mining purposes, pursuant to the terms of a lease proposed to be made between these infants by Kash, as their guardian, of the one part and the Lawrence E. Tierney Coal Company of the other part. This lease stipulated that the grantors, in consideration of certain royalties provided for, leased all of the coal in and under the land to the coal company for a period of 40 years, with the privilege of renewal for an additional term of 40 years. The lease further contained a number of stipulations providing for the use and occupation of the property by the coal company to enable it to mine and deliver the coal, and then provided that the lessee should pay to the lessors, during the continuance of the lease, or any renewal thereof, a royalty of 10 cents for each ton of coal produced from the land and 15 cents for each ton Of coke that might be manufactured On the premises, the minimum royalty to be $5,000 for the first year, $10,000 for the secOnd, and $15,000 for the third, and each year thereafter. After this, the infants were properly brought before the court and a guardian ad litem was appointed to represent them, and he filed a report reciting that, in his Opinion, the lease would be beneficial to them. Thereupon evidence Was taken Supporting the averments Of the petition, and afterward the court rendered a judgment authorizing the guardian, Kash, to lease the land for a period of 40 years, with the privilege of renewal for 40 years for the purpose of mining and removing coal therefrom, with the usual privileges contained in Such leaseS. The judgment further recited that the Conditions of the lease filed with the petition were reasonable and satisfactory, and that the guardian Should lease the Coal privileges in the land under and according to the terms of the form of lease filed with the petition at public outcry, reserving to the court the right to privileges as set out in the lease filed with the petition were sold pursuant to the judgment, and the Lawrence E. Tierney Coal Company, being the only bidder, became the purChaser under the terms Of the leaSe heretOfore referred to. Formal exceptions were filed to the report of sale by the company and overruled, and it prosecutes this appeal for the purpose of having the correctness of the judgment and the rulings of the court in respect to the exceptions determined by this court in Order that there might be n0 queStions about the validity of the lease, and its rights and privileges thereunder. It may here be remarked that the proceedings had in the lower court were in conformity with the provisions of the act, and so if there were no objections to its Validity the judgment Should be affirmed. -\ At this point we may digress a moment to briefly review the state of the law previous to the act of 1916. In sections 489–49S of the Civil Code, provision is made for the Sale Of the real estate Of infantS and perSons of unsound mind. But the Sale of the real estate of infants and persons of unsound mind, under these Code provisions, is Only allowable: (1) For the purpose of paying a debt of the ancestor with which the infant, or person of unsound mind, may be chargeable; (2) for the purpose of paying the debts of the infant, or person of unsound mind; (3) for the maintenance and education of the infant, and the maintenance of the persons of unsound mind and their families; (4) for purposes of reinvestment in other property. It has also been frequently and consistently held that courts of equity have no inherent power to sell, for any purpose, the real estate Of infants, or persons of unsound mind, and that when it is sought to sell their real estate express authority for the Sale must be found in statutory provisions, and these provisions must be strictly complied with. Walker v. Smyser, 80 Ky. 620; Elliott V. Fowler, 112 Ky. 376, 65 S. W. 849. It is further provided in section 2031 of the Kentucky Statutes that a guardian “may lease any real eState Of the Ward until the Ward Shall arrive at the full age; but no such lease shall be made for a longer term than Seven years.” So that before the act Of 1916 a court of equity could not lease for a longer term than the minority of the infant his real estate or any interest, mineral or otherwise, therein, nor could his real estate, or any part thereof or interest therein, be sold for any purposes except those pointed out in the Statutory provisions referred to. It had always been the policy of the state, as expressed in legislative enactments and Court Opinions, to guard with jealous care the property rights of infants and persons under disability, but it was never thought that the courts had any power to undertake to regulate or control in any manner, by proceedings brought during infancy, the estate

after the infant had arrived at full age, or the disability was removed. When either of these contingencies happened, then the perSon Who had been an infant, or Who had been laboring under some legal disability, was restored to his rightful status as a citizen of the State entitled to the free and unrestrained use and management of his property to the same extent as that of any other person of full age and sound mind. But the act of 1916 undertook to make a radical and Sweeping change in this time-honored public policy Of the state, and to give to circuit courts having general equity jurisdiction powers not Only to regulate and Control the estates of infants and persons of unsound mind during the infancy or period of disability, but to project this regulation and control far beyond the time theretofore prescribed and long after the infant had arrived at age, or the disability had been removed; and the question is, Did the Legislature have this power? [1] In determining this question, we have not overlooked the fact, so often declared by this court, that a legislative act will not be declared invalid unless the legislation was prohibited by the Constitution, because the rule long pursued by this court, and generally observed by other courts, is that there are no restraints upon the authority of the legislative department except those imposed by the federal and state Constitutions. Thus it was said in Johnson v. Higgins, 3 Metc. 566, that: “The duty, and sole duty, of this department of the government, when the constitutional power of the Legislature to enact a law is questioned, is to look to the provisions of the federal and state Constitutions, and if they do not, in express terms, or by necessary and proper implication, forbid the exercise of such power, the enactment must be adjudged valid and enforceable as a law. Beyond the constitutional restrictions thus to be interpreted, the only limits upon the state Legislature in enacting laws are its own wisdom, sound judgment, and patriotism. And it may be added that in doubtful cases, where it is not clear that the fundamental law has not been invaded, courts rarely, if ever, interfere to arrest the operation of legislative enactments. Respect for the wisdom of a coordinate department of the government, as well as sound policy, forbids such interposition, except upon clear and satisfactory grounds.”

And again in Commonwealth v. Goldburg, 167 Ky. 96, 180 S. W. 68, we said:

“Laws cannot be disregarded merely because they are supposed to be repugnant to some governmental principles that lie outside of constitutional limitations. The Constitution of this State, in sections 27 and 28, distributing the powers of government, confided to the legislative branch the authority to enact laws, and this authority the judiciary is not at liberty to interfere #. unless the legislation violates directly or by necessary implication some provision of the state or federal Constitution. Subject to this limitation, the policy of the legislation or the wisdom or the propriety of it is not for the judicial branch of the government to decide. When the courts have exercised their jurisdiction in restraining the Legislature from transgressing constitutional bounds, they have reached the limit of their control. The people put in the Constitution such limitations as they wished to impose on the legislative branch, and

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