Richardson v. Young, et al. 2. "A clear gift is not to be cut down by any subsequent provision unless the latter is equally clear." American & Eng. Enc. of Law, 29, p. 369; Note to Powers v. Jeundevine, 7 Lawyer's Reps. Ann., p. 517; Note to Bills v. Bills, 8 Lawyers' Reps. Ann., p. 696. 3 "Although the enjoyment of the legacy is postponed, the right vests immediately, and the legacy being vested is transmissible." Wallingford v. DeBell, 150 B. Mon., 552; 1 Jarman on Wills, side p. 760; Willett's Admr. v. Rutter's Admr., 84 Ky., 319; Hocker v. Gentry, 3 Met., 463; Roberts v. Brinker, 4 Dana, 570; Grigsby, v. Breckinridge, 12 B. Mon., 640; Wedekind v. Hallenberg, 88 Ky., 117. HARRIS & MARSHALL, ATTORNEYS FOR APPELLEES. AUTHORITIES, &c., CITED. 1. In construing wills, intention of testator gathered from the whole will controls, regardless of technical rules. Thackston v. Watson, 84 Ky., 206; Kent's Com., 12th ed., vol. 4, side page, 535; and 537 and bottom page 586. 2. All fees liable to be defeated by an executory devise are determinable fees. Kent's Com., 12th ed., vol. 4, side page 9, bottom page 8. 3. Executory devises, their general qualities and construction. Kent's Com., 12th ed., vol. 4, side page, 264; bottom page 269; see pages 268 and 270. 4. Court should construe will to give only defeasible fee in first devisee to carry out testator's intention. Such construction should be given to the devise as will carry out the object and intention of devisor and as will effectuate the purpose of the devise. Sale v. Crutchfield, 8 Bush, 649; Parish v. Vaughn, 12 Bush, 97; 5 Rule of Reversion; Kent, vol. 4, top page, 354; bottom page 363. OPINION OF THE COURT BY CHIEF JUSTICE HAZELRIGG-REVERSING. Benjamin L. Young died testate in Jefferson county in November, 1888, leaving three children, and to these he gave his estate, consisting solely of certain real property, under conditions to be stated presently. In February before his death he had obtained a divorce from his wife, who was the mother of his three children. He also left a brother and sister. The children of the Richardson v. Young, et al. testator died unmarried, and childless, and the question presented on this appeal is, does the appellant, the mother of the children, take the estate, or do the appellees, the brother and sister, take it? The will, excluding the first item, which provides merely for the payment of debts and funeral expenses, is as follows: "Item Second. All the rest and residue of my estate, real, personal, and mixed, after the payment of my debts and funeral expenses as aforesaid, I give, devise, and bequeath to my three children, Eliza Lawrence Young, Gresham Alexander Young and Kenneth Madison Young, to be equally divided between them, share and share alike. Item Third. The share of my daughter, Eliza Lawrence Young, is to be her sole and separate estate, free from the debts, liabilities, and control of any husband she may have during her life, and at her death to descend in fee simple to her children; and if she die, leaving no issue surviving her, then her said share shall be divided between my surviving children. Item Fourth. The shares of my sons, Gresham Alexander Young and Kenneth Madison Young, are to be conveyed and paid to them when and as they respectively attain the age of twenty-five years, and until they attain said age they shall have no power to convey or incumber in any way the estate herein devised to them; and if either shall die, without living issue surviving him, before attaining said age, his share shall be equally divided between my surviving children on the same terms and conditions as the share herein before devised to such child. Item Fifth. If any of my said children shall die, leaving issue surviving them, such issue shall inherit in the same manner as the parent would if living, only such issue shall take in fee simple. Item Sixth. In the event that the income from the share of any of my said children is insufficient for its Richardson v. Young, et al. support, and such child is unable to labor to earn its own support, I authorize its guardian to expend a reasonable allowance out of the principal of such child's share for such support. Item Seventh. I authorize and empower the statutory guardian of my said children, or any of them, to sell and convey any real estate said children may take under this will, the proceeds of such sale to be reinvested by such guardian, either in real or personal estate, for the benefit of such child or children, with power to again sell and convey as often as he may deem it to the interest of such child. The trustee for my daughter may, after she attains her majority, with her consent and approval, sell and convey any real estate in fee simple that she may take under this will, and reinvest the proceeds, to be held just as the estate herein devised to her is held; this power of sale to be in addition to the power conferred upon her guardian." By the eighth item the brother of the testator was appointed executor of the will, guardian of the children, and trustee for the daughter "during her life," with a request that he be allowed to qualify in each of these capacities without giving security. The son Kenneth Madison died in November, 1893, a minor, and unmarried; the daughter died in August, 1895, also unmarried; and the son Gresham Alexander died in October, 1898, likewise unmarried, and when 21 years and 1 month of age. The chancellor was of opinion that the will, as a whole, only gave to each of the children a life estate, and, there being no issue, and no one of the class named as survivors to take, a case of intestacy resulted. The fee, it is supposed, having been disposed of only on contingencies, which never happened, remained in the testator and reverted to his estate; and therefore the heirs of the testator, his brother and sister, inherited the property. It is insisted, Richardson v. Young, et al. on the other hand, that, at any rate, whatever may be said of the half of the estate which came to the surviving brother, Gresham, from his brother, Kenneth, certainly that half which Gresham inherited from his sister is free from all restrictions, and was devised to him in fee under the third item; and that, therefore, upon Gresham's death, the estate passed by inheritance to his mother. It is difficult to escape this conclusion. When Kenneth died, the sister got one-half of his share, to be held by her (item 4) on the same terms and conditions as she held the share directly. devised to her. She probably held a life estate only. But this is not material, because upon her death without issue her entire share of the estate was to be divided, under item 3 of the will, between the surviving children. As Gresham alone survived, he took this half in fee, as there is no attempt in item 3 to name the conditions on which the sister's share was to go to and be held by the survivor or survivors. The last survivor, therefore, took the fee to the sister's share of the estate, and this passed by descent to his mother. We agree with the chancellor's construction of the will as it affects the other half of the estate. The surviving son held his orig. inal share, as well as the share derived from his brother, on contingencies which prevented the vesting of the estate, and there is failure to dispose of the remainder. The brother and sister therefore take one-half the estate as heirs of the testator. Wherefore the judgment is reversed for proceedings consistent with this opinion. L., H. & St. L. R. R. Co. v. Beauchamp. CASE 8-ACTION TO RECOVER DAMAGES FOR THE KILLING OF A COLT BY L., H. & St. L. Railway Co. v. Beauchamp. APPEAL FROM THE HANCOCK CIRCUIT COURT. PLEADING AMENDMENTS-DEPARTURE-ADMISSIONS OF AGENT AS EVI DENCE-CATTLE-GUARDS. Held: 1. In an action to recover damages for the killing of a colt by the negligent act of the defendant in running its train of cars over the colt, it was not error to permit the filing of amended petitions alleging additional acts of negligence as that defendant maintained its cattle guard in a negligent manner, and that, after the colt was crippled, defendant wrongfully killed it, though it was not fatally injured. 2. The declaration of a section foreman, charged merely with the duty of keeping a cattle guard in repair, that the original construction of the cattle guard was improper, was not admissible against the principal, not being a part of the res gestae. 3. The term "cattle guard," as employed in Kentucky Statutes, section 1793, means such an appliance as will prevent animals from escaping from inclosures in which they are confined over the railroad track, and going upon lands of others, adjoining the right of way; and the mere fact that a cattle guard was not so constructed that cattle could pass over it with safety did not authorize the submission to the jury of the question of improper construction. 4. It is negligence to permit a cattle guard to be overgrown with weeds, grass, and other vegetation, so as to prevent its being seen by live stock. DAVID R. MURRAY FOR APPELLANT. 1. Admissions or statements made by appellant's section boss the day after the injury was done are not competent evidence against the appellant, neither as to the killing of the colt, nor as to the construction of the cattle guard. Lexington, &c., Mining Co. v. Webb, 35 S. W., 1117; Tarr v. Kimbrough, 34 S. W., 528; L. & N. R. R. Co. v. Ellis, 30 S. W., 979. 2. The original petition alleged that the colt was killed by being negligently run over by the train. An amended petition was filed alleging that the colt was killed either by the train running over it, or by falling into the cattle guard, but plaintiff did not know which, and another amendment was filed alleging that the |