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verbal subscription for stock in a corporation was expressly upheld by this court in the case of Tabler, etc., v. The Anglo-American Association, Limited, 32 S. W. 602. We quote the following from the opinion: "The testimony shows that this was a verbal subscription of stock, and no written evidence is exhibited, except a writing evidencing a subscription by others, and to which neither of the appellants' names are attached. It is plain, however, that the appellant either purchased the stock or subscribed for it, and on this issue the testimony is so conflicting as not to justify a reversal on that ground for want of evidence to support the judgment. In fact, it clearly appears that this stock at the time of purchase was in great demand, and it is scarcely to be supposed that a sale would be made so much below the market value, and by one, as he states, having no authority to dispose of the stock. The discrepancy in the testimony has arisen, no doubt, from the confidence the parties had in the success of the enterprise, and their inattention, therefore, to what actually transpired with reference to the transaction. It does appear singular that a verbal subscription involving so much should have been made, and equally so that the stock should have been purchased, and the money paid, and no certificate of stock ever issued or demanded; and this loose manner of doing business has caused this difficulty between the parties."

The trial court erred in refusing to allow appellants to show parol authority from the board of directors to the president and cashier to sell this stock to appellee, although we do not think it material in this case, as the acquiescence in the sale by the board of directors conclusively evidences their ratification of the transaction, even if there should be any doubt as to the original au

thority to make the sale. The directors are presumed to be informed of the ordinary business of the bank, and they would not be permitted, if they so desired, after receiving appellee's money in payment for his stock, to repudiate the transaction.

The contention of appellee that the stock issued to him belonged to B. G. Newell, who was one of the 10 original subscribers for all of the capital stock, and that, as no authority was shown by appellants from him for the sale and transfer, it was void, cannot be maintained. The evidence conclusively shows, as said before, that B. G. Newell did not own all the stock which stood in his name under his original subscription. As to future subscribers, he was simply a trustee, and could not refuse to transfer, if he would. A refusal on his part to permit the transfer would have been a gross breach of the original agreement under which he subscribed. There was no necessity of any special authority from him to issue the certificate to appellee. He had no certificate for the stock, and never intended to accept one, and could not have required the bank to transfer it to him if he had so desired. His subscription was only a matter of organization, and he and the bank so understood it. The issuance of the certificate to appellee was perfectly regular, and in conformity with the original resolution for the placing of the stock, There can be no doubt that appellee subscribed for it, or that he knew it was paid for out of his money on deposit in the bank; and, as said before, he regarded himself as a stockholder until long after the failure of the bank.

The court should have sustained appellants' motion for a peremptory instruction at the close of all the testimony. Wherefore the case is reversed for proceedings consistent with this opinion.

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BARKER, J. This action was instituted in the Pulaski circuit court by the appellee, Susie Brinkley, against the appellants, Christopher L. Williams, receiver of the Somerset National Banking Company, and the Somerset National Banking Company, to recover the sum of $1,000, which she placed on deposit in the Somerset National Banking Company, and which has never been repaid to her, as she alleges. All of the facts as to the organization of the appellant bank, the appointment of a receiver, and the pleadings involved in this case, are substantially the same as in the case of The Somerset National Banking Company's Receiver v. Napier Adams (heretofore decided) 72 S. W. 1125, of which it is a counterpart, and reference is now had to that. opinion for the facts necessary to illustrate this case.

Upon the trial in the circuit court, the judge, as we think, properly ruled that the burden of proof was on the defendants, who are the appellants here, and at the close of their testimony sustained the motion made by appellee for a peremptory instruction to the jury to find for her in the sum of $1,000, which they did. Appellants' motion for a new trial being overruled, they have appealed to this court. The correctness of this ruling of the circuit judge, under the principles enunciated in the Somerset National Banking Co.'s Rec'r v. Napier Adams, depends upon the question as to whether or not the appellants established the contract of purchase of the stock in question by appellee of the appellant bank.

After the organization of the Somerset National Banking Company, the appellee, Susie Brinkley, entered into negotiations with its officers, looking to the purchase of 10 shares of stock. She had on deposit in the bank $1,265. No contract for the purchase

of the stock was finally consummated by appellee, although the matter was discussed between her and the bank officers. The talk that she had concerning the stock was with R. G. Hail, the teller and cashier. Mr. Hail was introduced as a witness for appellants, and on cross-examination said there was no agreement between him and appellee as to the number of shares that she would take, and made it perfectly clear that there was no contract for the sale of the stock closed between him and appellee; but he says that, after his conversation with appellee, her brother-in-law, W. F. Tomlinson, told him that she would take 10 shares, and that he settled the matter with Mr. Tomlinson. Mr. Tomlinson was also introduced as a witness by appellants, and admitted that he told R. G. Hail that his sister-in-law would take the 10 shares of stock, but said that he had no authority from her to close the contract, and that he was not her agent in any way, and had no right to act for her; that the talk he had with her concerning the stock was just a family matter, and when he told Hail that she would take the stock he assumed that she would accept his advice in the matter. The evidence did not show that the appellee ever knew that the contract was closed, or that her money had been taken to pay for the stock in question, or that a certificate for it had been issued to her. It was never delivered, and there was a total failure to show that she ever made any contract with appellant bank for the purchase of the stock, or authorized any one so to do for her, or that she ever knew that her name was on the stockbook.

We think the court properly instructed the jury at the close of the appellants' testimony to find for the appellee. Wherefore the judgment is affirmed.

THOMAS et al. v. SCOTT et al. (Court of Appeals of Kentucky. March 18, 1903.)

WILL EXTENT OF DEVISE-CONSTRUCTION EXTRINSIC EVIDENCE-ADMISSIBILITY.

1. Testatrix devised a certain house and lot, and to T. "the lot adjoining, with two storied frame house on it." Extrinsic evidence showed that the latter lot had been purchased by testatrix together with a third tract, there being a stone fence between the two. She placed T. in the two-story house, and referred to those premises as "T.'s lot,' while referring to the third tract as "my lot." Some one desiring to use the third tract, she referred him to her agent, who gave him permission to fence three sides, which, with the stone fence, completely inclosed the tract. Held, that the devise to T. did not include the third tract.

2. Extrinsic evidence was admissible to explain the latent ambiguity in the will.

Appeal from Circuit Court, Bourbon County.

"Not to be officially reported."

Action by George Scott and another against Allen M. Thomas and others. Judg

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ment for plaintiffs, and defendants appeal. Reversed.

McMillen & Talbott and T. N. Lindsey, for appellants. H. C. Howard and Buckner Clay, for appellees.

PAYNTER, J. Louisa A. Keiningham departed this life in September, 1890, leaving a will, which, among others, contained the following provisions:

"If Eliza Baker (col.) stays with and takes care of me as long as I live, I wish my executors to give her five shares of my Northern Bank Stock for life, the dividends to be paid her by her trustee, and after her death go to pay taxes on her brick house on Pleasant Street; also on the two houses given to servants on Georgetown Hill. The house and lot on Georgetown road to be given to Ellen Hurndon's four girls, namely, Bettie, Laura, Carrie and Mary Eliza Hurdon.

"The lot adjoining, with two storied frame house on it, given to Mary Turner (col.) for her sole use and benefit, her husband, who she is separated from, to have no interest in it, and at her death, without children, to go to her sister, Eliza Baker and brother, George Scott. These were the children of my faithful servant, William Scott, who when freedom came never left me, and never did or would receive one cents of wages.

"All the rest of my estate, including home place, after payment of my debts, if any, with charges and expenses of administration, including a plain monument for my grave, I give to my dear brother, Landon A. Thomas."

At the time of her death the testatrix was the owner of the lots shown by the following

plot:

The lot designated on the plot as the "Herndon lot" was devised to the Herndon girls; a house of two stories was on the lot designated as the "Mary Turner lot." The lot designated as the "Keiningham lot" is what is known as the "vacant lot" in this record.

After the death of the testatrix, the widow and heirs of Landon A. Thomas, the residuary legatee, sold it to a party, and afterwards it was divided into lots, and upon it seven houses were built. Mary Turner died in 1891. George Scott and Eliza Baker, who took the remainder interest in the lot devised to Mary Turner, instituted this action to recover of appellants the several lots in their respective possessions. The right to recover depends upon the construction of the clause of the will devising the lot to Mary Turner. The testatrix bought the property consisting of the Mary Turner lot and the vacant lot from James O'Keefe, after doing which she placed Mary Turner in the house which was situated on what is known as the "Mary Turner lot." After this was done, Pete Mason, desiring to use the vacant lot, approached the testatrix with a view of obtaining her permission to fence and use it. She referred him to Mr. Alexander, her agent, who gave Mason permission to erect the fence around the lot, except on the back part of it, where there was a stone fence. There seems to have been an old fence between the Mary Turner lot and the vacant lot, which was either rebuilt or repaired by Mason, inclosing the vacant lot. The testimony conduces to show that the testatrix claimed the vacant lot as her own after she had placed Mary Turner in possession of the house. She often referred to it as "my lot," and to the other one as "Mary Turner's lot."

231 ET

168 FT

Mary Turner Lot.

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The evidence is conclusive that the property purchased from O'Keefe was divided by a fence as represented on the plot, and the small lot is the one that testatrix referred to as the "Mary Turner lot."

It will be observed that the testatrix gives to the Herndon girls a lot on the Georgetown road, and Mary Turner is given the lot adjoining, with a frame house, of two stories, on it. The testatrix referred to the Herndon property as a "lot," and designated the property given to Mary Turner as a "lot" adjoining the Herndon "lot."

When we consider the extrinsic facts which we have detailed, there is no escaping the conclusion that the testatrix only intended to devise to Mary Turner the lot upon which her house was situated. Where the ambiguity in a will is patent, testimony is inadmissible to aid the court in interpreting it; but where the intention of a testator is clearly expressed, and a doubt exists, not as to the intention, but as to the nature or state of facts in the country, any legitimate evidence of which the facts are susceptible is admissible from that quarter to remove the doubt. Breckenridge v. Duncan, 2 A. K. Marsh. 50, 12 Am. Dec. 359. In Haydon v. Ewing's Devisees, 1 B. Mon. 113, it was held, in case of a latent ambiguity arising from the application of the devise to the subjects described in it, it might be solved, not only by the facts both in and out of the will, but also by parol evidence of intention, for it is a question, not of power, but of intention. This court, in Allen v. Vanmeter's Devisees, 1 Metc. 264, said: "It is now well settled that evidence of extrinsic facts is admissible in aid of the exposition of wills, although they are by our statute required to be in writing, and are for that reason peculiarly within the general principle which excludes parol evidence which tends to contradict, add to, or explain the contents of written instruments. But this extrinsic evidence must always be such as, in its nature and effect, simply explains what

the testator has written, and not what he intended to have written. In other words, the question, in expounding a will, is not what the testator actually intended, as contradistinguished from what his words express, but what is the meaning of the words used." In this the evidence to which we have referred simply goes to explain what the testatrix had written, not what she intended to have written. If the language of the will had purported to convey both lots, it would not have been admissible to show that the testatrix did not intend to devise but one of them. Had that been true, the testimony of Mrs. Shackleford and others as to what the testatrix claimed with reference to the vacant lot would not have been admissible to show that she did not intend to devise both of them. Their testimony serves to explain what the testatrix had written, not what she intended to have written. The case of Allen v. Vanmeter's Devisees, cited by appellees, does not lay down a rule different from the one in the cases of Haydon v. Ewing's Devisees and Breckenridge v. Duncan. We might call attention to the fact that Mary Turner, after the death of the testatrix, recognized Keiningham estate as the owner of the vacant lot, and expressed her gratification to one of the persons who had bought a lot in the subdivision that she was going to have a neighbor. Mary Turner saw the parties engaged in dividing the lots, and persons engaged in building houses thereon, and never made a complaint to any of them that they were building houses upon her land. Neither did Eliza Baker or George Scott do so. Mary Turner lived upon the adjoining lot, and the other parties lived in the city of Paris. While this does not tend to aid the court in interpreting the will, it shows a contemporaneous construction of the will by the parties who are now asking a different construction to be placed upon it.

Judgment is reversed for proceedings consistent with this opinion.

MEMORANDUM DECISIONS.

COMMONWEALTH v. JOERGER. (Court of Appeals of Kentucky. March 19, 1903.) Appeal from Circuit Court, Mason County. "Not to be officially reported.' Information by the auditor's agent of Mason county against Lewis Joerger. Judgment for defendant sustaining a demurrer to the information, and the commonwealth appeals. Reversed. G. A. Cassidy, for the Commonwealth. L. W. Robertson, Garret S. Wall, E. L. Worthington, and W. D. Cochran, for appellee.

NUNN, J. The same question is presented in this record as in the case of Commonwealth of Kentucky, by, etc., v. Laura G. Collins (this day decided) 72 S. W. 819. Upon authority of that case, and for the reasons therein stated, the judgment is reversed, and the cause remanded for further proceedings consistent with that opinion.

COMMONWEALTH v. LONGNECKER et al. (Court of Appeals of Kentucky. March 19. 1903.) Appeal from Circuit Court, Mason County. "Not to be officially reported." Information by the auditor's agent of Mason County against Sallie Longnecker and another. Judgment for defendants sustaining a demurrer to the information, and the commonwealth appeals. Reversed. G. A. Cassidy, for the Commonwealth. L. W. Robertson, Garret S. Wall, E. L. Worthington, and W. D. Cochran, for appellees.

NUNN, J. The same question is presented in this record as in the case of Commonwealth of Kentucky, by, etc., v. Laura G. Collins (this day decided) 72 S. W. 819. Upon authority of that case, and for the reasons therein stated, the judgment is reversed, and cause remanded for further proceedings consistent with that opinion.

COMMONWEALTH V. WILLIAMS' ADM'X. (Court of Appeals of Kentucky. March 19, 1903.) Appeal from Circuit Court, Mason County. "Not to be officially reported.' Information by the auditor's agent of Mason county against Ezekiel Williams' administratrix. Judgment for defendant sustaining a demurrer to the information, and the commonwealth appeals. Reversed. G. A. Cassidy, for the Commonwealth. L. W. Robertson, Garret S. Wall, E. L. Worthington, and W. D. Cochran, for appellee.

NUNN, J. The same question is presented in this record as in the case of Commonwealth of Kentucky, by, etc., v. Laura G. Collins (this day decided) 72 S. W. 819. Upon authority of that case, and for the reasons therein stated, the judgment is reversed, and the cause remanded for further proceedings consistent with that opinion.

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for defendant sustaining a demurrer to the information, and the commonwealth appeals Reversed. G. A. Cassidy, for the Commonwealth. L. W. Robertson, Garret S. Wall, E. L. Worthington, and W. D. Cochran, for appellee.

NUNN, J. The same question is presented in this record as in the case of Commonwealth of Kentucky, by, etc., v. Laura G. Collins (this day decided) 72 S. W. 819. Upon authority of that case, and for the reasons therein stated, the judgment is reversed, and the cause remanded for further proceedings consistent with that opinion.

LENZ v. SOUTH COVINGTON & C. ST. RY. CO. (Court of Appeals of Kentucky. March 4, 1903.) Appeal from Circuit Court, Campbell County. "Not to be officially reported." Action by Martha Lenz against the South Covington & Cincinnati Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed. Geisler & Lockhart, for appellant. L. J. Crawford, for appellee.

PAYNTER, J. The facts in this case are substantially the same as in the case of Herman Dierig v. The South Covington & Cincinnati Street Railway Company (this day decided) 72 S. W. 355, and our conclusions are the same in this as in that case. Judgment is affirmed.

WRIGHT v. SHIPP. (Court of Appeals of Kentucky. March 17, 1903.) Appeal from Circuit Court, Bourbon County. "Not to be officially reported." Action of forcible entry by P. E. Shipp against C. J. Wright. Judg ment for plaintiff, and defendant appeals. Affirmed. N. C. Fisher, for appellant. C. Arnsparger and Denis Dundon, for appellee.

NUNN, J. Appellee rented 98 acres of laud belonging to appellant for the term of one year from March, 1901, to March, 1902. This land was all in grass, and was to be used for grazing purposes. Appellee afterwards sold to one Redmond the grazing privilege for a limited number of cattle on this land. Appellant served notice on Redmond to vacate the premises, claiming that appellee had sublet the premises to Redmond without his written consent, and thereby forfeited his lease. Redmond vacated, and appellant then moved on and took charge of the premises. Appellee had issued a writ of forcible entry against the appellant, and upon the trial of this writ appellant was found guilty. He then filed a trav erse thereof, and took his case to the circuit court, and was again found guilty, and is here now on appeal. The proof in the case clearly showed, and without contradiction, that the sale of the grazing privilege to Redmond by appellee was not a subletting as contemplated by the statute, and the lower court should have given a peremptory instruction to find appellant guilty of the forcible entry. For these reasons we do not deem it necessary to discuss the other questions raised by counsel for appellant in their brief. Wherefore the judgment of the lower court is affirmed.

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