of her estate, or any expressed desire upon her part to relieve him as far as possible of it. His marital obligations required him to support her in "sickness and in health." Besides that, in consideration that she relinquish her potential right to dower in a tract of land which the appellant had inherited from his father, he agreed to build a house upon the land in question, costing $1,200, but the wife died shortly afterwards, and he never incurred that expense.

We are of the opinion that the court below properly refused to set aside the deed which the master commissioner made to Mrs. Clay for the two-fifteenths of the land. This deed vested her with fee to it, and, of course, the husband takes an interest in that fractional part of the land, but it is unnecessary to state here what his interest is. Judgment is affirmed.

ROBERTSON et al. v. ROBERTSON et al. (Court of Appeals of Kentucky.

CLAIM AGAINST

1903.)

March 18.

ESTATE-ESTOPPEL-VALIDI

TY-RES JUDICATA-CONTRACT BY
MARRIED WOMAN.

1. Testator devised all his property to his daughter, to be invested in real estate and to be deeded to her for her separate use, and to her children. The daughter invested such trust fund, together with funds of her own and of her husband, in a farm, and took the deed to herself in fee simple. Subsequently, in an action brought by the children, the daughter's accounts as executrix were settled, and the part of the farm bought with the trust fund was allotted to her, with remainder over to the children. A debt owed by the estate to the widow was credited to the daughter's account as executrix, and charged to her personally. Held, that the widow was not estopped from setting up her claim against her daughter's estate because she allowed the daughter in the former proceeding to prove that she had paid it off.

2. The validity of such claim as against her husband's estate cannot now be questioned, it having been settled in the former proceeding.

3. A contract by a married woman concerning her separate estate is valid.

Appeal from Circuit Court, Shelby County. "Not to be officially reported."

Proceeding by J. W. Robertson to settle his accounts as administrator of Martha L. Robertson, deceased. From a judgment overruling the exceptions of H. M. Robertson and others to the allowance of a certain claim, they appeal. Affirmed.

Gilbert. Peak & Gilbert, for appellants. Willis & Willis, for appellees.

BARKER, J. In 1887, H. B. Morton died testate, domiciled in Shelby county, Ky., leaving a widow, Sarah F. Morton, and an only child, Martha L. Robertson, wife of John W. Robertson. So much of his last will and testament as is pertinent to the issues involved in this case is as follows:

3. See Husband and Wife, vol. 26, Cent. Dig. §§ 317, 597.

"First. I will and desire that all my honorable debts be paid with all convenient speed. "I will and desire that all money and cash notes in my possession, or belonging to me at my death, shall be invested in real estate, such investment to be made within twelve months after my decease, for the benefit of my beloved wife and only child, Martha L. Robertson (wife of J. W. Robertson), to be deeded to her for her separate use and benefit, and to her children.

"And I also will and desire the money due to my estate from life insurance to be invested in the same way and for the same purposes; save and except the sum of two hundred and fifty dollars of said insurance, which I hereby give and bequeath to my wife, Sarah F. Morton; and I further will and decree that my wife, Sarah, shall be supported out of such real estate as shall be purchased under the provisions of this will for my daughter, and such support, meaning proper food, clothing, shelter and medical attention; and I further will and decree that upon failure of my daughter and her husband to furnish my wife with the support above named, that she shall have a lien, during her life, upon such part of the real estate to be purchased, as above indicated, as shall insure her a comfortable maintenance."

By the terms of the will, Martha L. Robertson was named as sole executrix, without bond or security. This will was duly and legally probated by order of the Shelby county court, and Martha L. Robertson was appointed and qualified as sole executrix. After the payment of all her father's debts, the executrix invested all of his estate, together with funds of her own and of her husband, in the purchase and improvement of a farm of 190 acres, situated in Shelby county, Ky. The conveyance of this farm was made to Martha L. Robertson alone, in fee simple, and it constituted the home of herself, her husband, and their children, and Sarah F. Morton. Afterwards, in 1895, her son H. M. Robertson, who had become of age, for himself, and as next friend of his infant brothers and sisters, instituted an equitable action in the Shelby circuit court against his mother, Martha L. Robertson, his father, John W. Robertson, and his grandmother, Sarah F. Morton, In his petition he recites the provisions of the will of his grandfather, H. M. Morton, and charges that his mother wrongfully invested the money which came to her hands, as executrix and devisee, in a farm of 190 acres, which she had caused to be conveyed to herself in fee simple, to the exclusion of the rights of himself and his infant brothers and sisters.

It is not necessary to set forth with minute particularity the proceedings which were had in this case. It is sufficient to state that Martha L. Robertson settled her accounts, as executrix, in this action, and that in this settlement it appears that, after the payment of all the debts of her father, there remained in

her hands, of the trust fund devised to herself and her children, the sum of $3,750, which had been invested in the purchase of the farm of 190 acres, and that afterwards, the cause having been submitted, the court rendered the following judgment: "This cause being submitted on pleadings, proof, and exhibits, and the court being sufficiently advised, it is the judgment of the court that the sum of $3,750 of that fund came to the hands of defendant, Martha L. Robertson, from the estate of Hiram Morton, which was invested in the lands now held by defendant, Martha L. Robertson; that Martha L. Robertson owns to the amount of $3,750 for her life, with remainder to her children. All the remainder of said lands belong absolutely to the defendant, Martha L. Robertson. And Simeon Cook and E. J. Doss are appointed commissioners, who will go on said lands, on a day to be fixed by them, of which they will give the adult parties hereto notice, and will divide said lands described in the petition thus: They will allot to Mrs. Martha L. Robertson for her life, with remainder to her children, land of the value of $3,750, and the remainder they will allot to Mrs. Martha L. Robertson absolutely. Before making said survey and division, said commissioners will be sworn to fairly and impartially discharge the duties by this order imposed." In pursuance of this order, the commissioners allotted 76 acres of the farm to Martha L. Robertson for life, with remainder over to her children. The balance of the farm they allotted to her absolutely, and reported their acts to the court. No exceptions having been filed to this report, it was confirmed, and the case went off the docket, and the judgment has never been appealed from or in any way vacated.

On the 18th day of April, 1901, Martha L. Robertson died, a resident of Shelby county, Ky., leaving a husband, John W. Robertson, and four children, H. M. Robertson, Mary R. Martin (wife of Shelby Martin), Charles A. Robertson, and Meredith C. Robertson, who is yet under age. Her husband, John W. Robertson, having been appointed and qualified as administrator of her estate, instituted this action in the Shelby circuit court. In his petition he states, in substance, that his wife left little or no personalty, but that she died seised in fee simple of the 114 acres of land, which had been conveyed to her by the commissioners appointed by the court in the case of H. M. Robertson, &c., v. Martha L. Robertson, &c., heretofore mentioned; that, in order to pay these debts, it was necessary that the farm should be sold. In this action, all the parties in interest were properly brought before the court, the land was sold under judgment, and the case referred to the commissioner for the purpose of reporting the indebtedness of the estate. Among the claims which were asserted was that of appellee Sarah F. Morton for the sum of $1.976.48, and the validity of this

claim is the only question involved on this appeal.

It appears that Mrs. Sarah F. Morton turned over to her stepdaughter, Martha L. Robertson, the sum of $250, which she received out of the insurance on her husband's life, and surrendered to her six notes, aggregating $1,724.48, which she held against her husband's estate, and took from her stepdaughter the following instrument of writing: "Whereas, at the death of my father, H. B. Morton, he was indebted to Sarah F. Morton in the sum of $1,726.48, evidenced by six notes; and whereas, the said Sarah F. Morton turned over to me $250.00 of the insurance money on life of said H. B. Morton going to her, and whereas, it was agreed between myself and Sarah F. Morton that the amount of said notes, with interest to death of H. B. Morton, and the $250.00 aforesaid, making in all $1,976.48, should be placed in the farm on which I now reside, the said Sarah F. Morton to make her home with me and have a maintenance and support out of the said farm. Said money was so invested, and Sarah F. Morton has so lived since said farm was purchased. Now, I acknowledge by this writing that the aforesaid sum was so invested, and that I am bound and liable to Mrs. Morton to furnish her a home and comfortable support and maintenance as long as she lives, and at her death to pay same to her legal representatives. This Dec. 25, 1895. Mattie L. Robertson. W. A. Bohannon, L. C. Willis." tion and delivery by Martha L. Robertson of this paper to her stepmother, Sarah F. Morton, is abundantly shown by the evidence. But it is strenuously urged by counsel for appellants that Mrs. Morton is now estopped from setting up this claim, because, it is said, she permitted her stepdaughter, Martha L. Robertson, in the case of H. M. Robertson v. Martha L. Robertson, to prove, before the commissioners, that she, as executrix of the estate of her father, H. B. Morton, had paid off the indebtedness due from the estate to Sarah F. Morton, and thereby lessened the trust fund, to the injury of appellants.

Witnesses: The execu

It seems that Martha L. Robertson and her husband, John W. Robertson, and Sarah F. Morton entered into a family arrangement to put all their money together, for the purpose of purchasing a good farm, and so improving it that it would comfortably support and maintain the whole family, including appellants. This was manifestly to the interest of all, and certainly in no way injured, or could have injured, the appellants. Sarah F. Morton was entitled to receive her debt of $1,976.48 in money, and she was entitled, in addition thereto, to be supported and maintained out of whatever was left of her husband's estate after the payment of his debts. Had she been a selfish woman, undoubtedly she would have adopted this course; but, evidently desiring to further the family interest, she did not take the debt in cash, but loaned it

to her stepdaughter to be invested in a home for all the family. This arrangement worked out with great satisfaction to all concerned; until H. M. Robertson arrived at mature age, when he instituted an action against his mother in order to have his and his brothers' and sisters' rights in the farm determined; and in that action his mother settled her accounts, as executrix of her father's estate, in order that it might definitely appear what sum she held in trust for herself and children. In this settlement she was credited by the sum of $1,976.48 paid by her, as executrix, to her stepmother, Sarah F. Morton. This payment was effected by crediting her account as executrix with the sum of $1,976.48 which was due from the estate to Sarah F. Morton, and charging herself personally, as evidenced by the writing above set forth, with the sum of $1,976.48. This was a perfectly simple transaction, and in no wise injured appellants, or diminished the trust fund in which they were interested; it resulted precisely as if the executrix had handed over to Sarah F. Morton the sum due her from her husband's estate, and afterwards she had loaned that same sum to her stepdaughter, Martha L. Robertson. The arrangement in no wise injured appellants or their estate, but, on the contrary, was greatly beneficial to them, as it enabled them to enjoy the comforts of a home, purchased in part, at least, by money of their stepgrandmother.

The validity of Mrs. Morton's original claim against her husband's estate cannot be called in question here by suggesting the I want of consideration for the writing executed and delivered by Martha L. Robertson; that question was settled in the case of H. M. Robertson v. Martha L. Robertson, and is now res adjudicata.

Nor can the contention of appellants, that the contract between Martha L. Robertson and Sarah F. Morton is void because Mrs. Morton was a married woman, be maintained. The contract concerned her separate estate, and she had the power to contract with reference thereto, and, even if this were not so, we think that, under the arrangement made between them with regard to the purchase of the farm, Mrs. Morton was entitled to receive back her money which she had invested in the purchase.

The learned judge of the circuit court properly overruled the exceptions of appellants to the allowance by the commissioner of this claim of Sarah F. Morton. Wherefore the judgment is affirmed.

so held, cannot be made for the first time on appeal, the answer having traversed its allegations and denied that the way had been used adversely for the time specified therein or any other length of time, and proof on the issue having been heard without objection.

2. An adverse possession which will defeat a right of way acquired by adverse user must be such as would defeat a right of entry on real estate.

Appeal from Circuit Court, Nicholas County.

"Not to be officially reported."

Suit by J. W. Kennedy and another against William Clay. Judgment for plaintiffs. Defendant appeals. Affirmed.

John I. Williamson and Harry Kennedy, for appellant. J. F. Morgan and Leslie S. Hughes, for appellees.

HOBSON, J. Appellant, Clay, owns a tract of land in Nicholas county, on the Carlisle & Sharpsburg Pike. Appellees own land back of him. As far back as 1839 there was a road leading across Clay's land along the ridge back to the land now owned by appellees, and it seems to have been the main, if not the only, way at that time of reaching it. About the year 1860, Walter Roberts, who lived where appellee Tapp now lives, kept a store there, and the road referred to was After used to get from the pike to the store. Roberts' death a man named Bradshaw lived there, and during this time Clay bought the farm in front. There seems to have been no trouble about the right of way between Bradshaw and Clay, but after Bradshaw's death Clay closed up the road when Wyatt was living there, some time previous to the year 1889. Tapp got the place in the year 1900. He and Kennedy, in August, 1901, filed this suit, alleging that they and those under whom they claimed had for over 30 years claimed and held adversely the passway over Clay's land, and prayed that he be enjoined from obstructing them in the use of it. The defendant filed answer denying the allegations of the petition, and on final hearing the court granted the plaintiffs the relief sought.

The petition of the plaintiffs is certainly good after answer on the merits and judgment. There was no demurrer filed to it. The answer not only traversed the allegations of the petition, but denied that the passway had been used for the time specified therein, or any other length of time, adversely to the owners of the land. Proof was taken on the issues thus raised, and heard in the trial court, without objection. The question cannot be made for the first time in this court that the petition did not allege that the adverse holding of the passway was open and notorious, or that the exact time when it was so held was not stated in the petition. On the questions of fact the proof is very conflicting, and, giving some weight to the chancellor's conclusion, we do not think we

2. See Easements, vol. 17, Cent. Dig. § 84.

ought to disturb the judgment. The long use of the road from 1839 until after the death of Bradshaw is sufficient, considering the manner of the use, to raise a presumption in favor of the right, and we are by no means clear, from the evidence, that there has been any such adverse holding by Clay for 15 years prior to the bringing of this suit as to bar the plaintiffs. Their prima facie case, from the long use of the road, its location on the ridge, its being the only practical means of access, and the general use made of it for something like half a century, can only be defeated by such adverse possession as would defeat a right of entry on real estate. This is not shown. At least, the evidence on this subject is not such as to warrant us in disturbing the chancellor's judgment.

Judgment affirmed.

MONTGOMERY v. CONSOLIDATED BOAT STORE CO.

(Court of Appeals of Kentucky. March 18, 1903.)

FOREIGN JUDGMENT-ACTION - JURISDICTION OF FOREIGN COURT-SUFFICIENCY OF AL

LEGATIONS-TRANSCRIPT-COMPLETENESS.

1. In an action on the judgment of a sister state, it is sufficient to allege, as showing jurisdiction in the former court, that defendant appeared, and that the court was one of general equity or law jurisdiction, without pleading the statute of the sister state, or setting out further facts showing the jurisdiction of its court.

2. A transcript of the judgment of a sister state on which execution has been issued and certified, as required by U. S. St. §§ 905-909 [U. S. Comp. St. 1901, pp. 677-679], so as to entitle the judgment to full faith and credit, will be deemed to contain a complete copy of the judgment, though it differs in form from the form of judgment used in Kentucky.

Appeal from Circuit Court, Kenton County. "To be officially reported."

Action by the Consolidated Boat Store Company against Alexander Montgomery. Judgment for plaintiff, and defendant appeals. Affirmed.

M. M. Durrett, for appellant. Myers & Howard, for appelice.

HOBSON, J. Appellee filed this suit to recover the amount of a judgment rendered in its favor against appellant in the superior court of Cincinnati, Hamilton county, Ohio, and, judgment having been rendered in favor of appellee, a reversal is sought on two grounds.

1. It is urged that the petition is not sufficient, in that it fails to state facts showing that the Ohio court had jurisdiction of the subject-matter and of the person of the defendant when it rendered the judgment. Gebhard v. Garnier, 75 Ky. 321, 23 Am. Rep. 721, and Laidley v. Cummins, 83 Ky. 606, are relied on. The last case seems to have

1. See Judgment, vol. 30, Cent. Dig. § 1773.

no application, as that involved a judgment of a district court of the United States, and it was held that this court would take ju dicial notice of acts of Congress defining the powers of the district court. In the other case, suit was filed on a judgment of the circuit court of Dearborn county, Ind., but no facts were alleged showing what the jurisdiction of that court was. It was not alleged that it was a court of general equity or common-law jurisdiction. But in this case it is alleged that appellant appeared personally in the court and filed answer. It is also alleged that the court was one of general equity and common-law jurisdiction. The general averment of a fact of this character is sufficient. It would be needless prolixity to require the statute of Ohio to be set out in hæc verba. It may be pleaded according to its effect. As the foreign law must be proved as any other fact, it may also be pleaded as any other fact.

2. It is also insisted that the transcript of the judgment is not of the entire decree. We do not see anything in the record to sustain this idea. No such defense was made in the trial court. The forms of procedure vary in the different states in matters of detail, and, while the form of this judgment is not that in use in Kentucky, we think it is the entire judgment in the matter, and was properly treated as such by the circuit court. We cannot understand why the execution issued upon it if it was not intended as a judgment. It is certified according to the acts of Congress, by which the courts of this state are required to give such faith and credit to the judgment as it would have at the place whence the records come. U. S. St. §§ 905, 909 [U. S. Comp. St. 1901, pp. 677, 679].

Judgment affirmed.

GILBERT v. CITY OF PADUCAH et al. CROW v. SAME.

(Court of Appeals of Kentucky. March 18, 1903.)

CITIES-CHANGE FROM THIRD CLASS TO SECOND-STATUTES-RIGHTS OF OFFICERS.

1. Though so much of Ky. St. § 3264, relative to transfer of cities of the third class to another class, as provides for transfer by the circuit courts, is void, as violating Const. § 156, giving the power of transfer to the Legislature alone, yet not only the part providing means for taking the census is valid, so that when the population is ascertained, pursuaut thereto, the Legislature may thereon make a transfer, as "in pursuance of a law previously enacted and providing therefor," as required by said section 156, but the part providing for the future government of the transferred city and the rights of existing officers is also valid.

2. The provision of Const. § 161, that the compensation of no municipal officer shall be changed after his election or during his term of office, is to be read with section 156, giving the power to transfer a city from one class to another, and does not impair the power to abolish the municipality or the office.

3. The provision of Ky. St. § 3264, that the transfer of a city of the third class to another class shall not in any wise affect the rights and duties of any officer thereof, is to be read in connection with section 3172, being part of the act for government of cities of the second class; so the officers of a city coming into the second class, like those of a city originally in the class, are entitled to hold their offices and receive the same compensation as before till the induction into the office of the officers elected at the next regular election for cities of the second class.

4. The marshal of a city of the third class coming into the second class will be treated as chief of police till the next election, the offices including the same duties.

Appeal from circuit court, McCracken county.

"To be officially reported."

Two suits-one by J. M. Gilbert, and the other by James F. Crow-against the city of Paducah and others. Judgment for defendants. Plaintiffs appeal Reversed.

Bloomfield & Crice, Reed & Berry, and W. S. Pryor, for appellants. J. M. Worten, for appellees.

HOBSON, J. By the act of September 30, 1892 (see Ky. St. § 2740), Paducah was assigned to cities of the third class. At the regular election in November, 1901, it elected various city officers, as provided by the laws governing third class cities. At this election appellant Gilbert was elected prosecuting attorney of the police court, and ap pellant Crow was elected marshal, each for a term of four years. Ky St. §§ 3369, 3338. Each of them qualified and entered upon the discharge of his duties. By section 3373, Ky. St., the prosecuting attorney of the police court receives as his compensation 30 per cent. of all fines and forfeitures recovered in the court. By section 3349, the marshal receives such compensation in the way of salary, commissions, and fees as are prescribed in the statute or by ordinance, which shall not be changed during his term of office. While they were discharging their duties, the General Assembly, by an act approved March 21, 1902, struck out Paducah from the list of cities of the third class, and added it to the list of cities of the second class; but the act is silent as to how the transfer is to take effect, or what shall become of the officers of the city elected and holding under the charter as a third-class city, nothing further being provided than that the city shall be transferred from the third class to the second class. Acts 1902, p. 115. By the charter of the second-class cities, the office of city attorney is created, corresponding to the office of prosecuting attorney of the police court, and he is paid such a salary as the general council shall deem proper. Ky. St. §§ 3165, 3167. After the transfer of the city to the second class, the general council passed an ordinance fixing appellant Gilbert's salary at $100 a month. This he declined to receive. There is no such office as marshal in second-class cities. The duties of mar72 S.W.-52

shal in the third-class cities are imposed upon the chief of police in second-class cities. Ky. St. § 3168. A chief of police was appointed, and appellant Crow was dropped. Ky. St. § 3138. Appellants, Gilbert and Crow, filed these suits to restrain the city from interfering with them in the discharge of their official duties, or depriving them of the compensation attached thereto, during the term for which they were elected. Their petitions were dismissed, and they have appealed.

Section 156 of the Constitution, among other things, provides: "The General Assembly shall assign the cities and towns of the commonwealth to the classes to which they respectively belong and change assignments made as the population of said cities and towns may increase or decrease, and in the absence of other satisfactory information as to their population, shall be governed by the last preceding federal census in so doing; but no city or town shall be transferred from one class to another, except in pursuance of a law previously enacted and providing therefor." It is insisted that the act of March 21, 1902, is invalid, under this provision, for the reason that no law had been previously enacted providing for the transfer of cities from one class to another. The General Assembly in the act of June 14, 1893, made a general law providing for the transfer of cities of the third class. Ky. St. § 3264. It is in these words: "When the population of any city of this class, as ascertained by the last federal census, or by a census taken pursuant to an ordinance of said city, authorizing it to be placed in a class other than that in which it is, the council of such city may enact an ordinance, setting forth the population of the city, and how ascertained, the class it is then in, and the class which it is entitled to be in, and may file a petition in the circuit clerk's office of the county, declaring the facts with reference to its population and the class it desires to become a member of and such other facts as may be thought proper and shall file with such petition a copy of the ordinance, and shall cause notice of the filing of such petition, and the object thereof, to be published in at least six issues of a daily or two issues of a weekly paper, of general circulation, published in the city, or in the county, if none be published in the city; or if no paper be published in the city or county, by notices posted up for at least ten days, at four public places in said city. On the second day of the next regular term of the court, the court shall, if the proper notice has been given, or publication made, and no defense is interposed enter a judgment assigning such city to the class to which it belongs, as appears from the petition and exhibits, and thereafter such city shall be gov erned by and under the general laws relating to the class to which it has been assigned, but the transfer from one class to another, shall not in any wise impair or affect any or