(234 S.W.)

Ky. 86, 172 S. W. 101; Wilson v. Common- | visit and see his child once a week, an order wealth, 181 Ky. 370, 205 S. W. 391. In such of the trial court that the father might take the cases, however, the facts and circumstances child to his home each Sunday is correct, since relied on are not sufficient, unless they point in case of ill health of the child, the court with some degree of certainty to the guilt the order, and permitting the father to visit would not insist upon a strict compliance with

of the accused.

Here it was necessary for the commonwealth to show, 'first, that appellant had intoxicating liquor in his possession; and, second, that he had it for the purpose of sale. The only evidence on the question is the fact that, when the officers entered, appellant's father had a half pint of liquor in his possession and attempted to pour it out. It was not shown that appellant had other intoxicating liquor in the house, or that he was in the habit of selling intoxicating liquor. It was not shown that the liquor in question was on the shelf, or under or behind the counter, or anywhere else on appellant's premises, except in the possession of his father. It was not shown that the father was the agent or employee of appellant, or that appellant owned or had any interest in the liquor. The only evidence on these questions is to the contrary. Furthermore, the quantity of the liquor, there being about one gill in the half-pint bottle, was hardly sufficient, in the absence of other circumstances, to justify the inference that it was possessed for the purpose of sale. We are therefore constrained to the conclusion that the verdict is flagrantly against the evidence. Judgment reversed, and cause remanded for new trial consistent with this opinion.

RIGGINS v. RIGGINS.

(Court of Appeals of Kentucky. Oct. 14, 1921.)

1. Divorce 182-Temporary allowance of alimony during appeal continues until mandate to lower court issues.

Where an allowance of temporary alimony was made by the appellate court pending appeal, it continued until the issuing of the mandate to the lower court.

2. Divorce 312-Where Supreme Court has jurisdiction for one purpose it may review all questions raised on appeal.

Where the Supreme Court had jurisdiction to review part of a judgment appealed from fixing defendant's right to visit and see his child at least once a week, it may review all questions raised on the appeal, although some of them standing alone would not be sufficient to confer jurisdiction.

3. Divorce 312-Judgment that a father might have his child visit him each Sunday held correct interpretation of order of Supreme Court.

Where on prior appeal the court made an order that the father should have the right to

the child at the residence of his wife with whom he was not living would not be satisfactory.

4. Divorce 227 (2)-Allowance of fee of $100 to attorney of wife for filing brief on appeal and making motion for temporary alimony pending appeal is sufficient.

An allowance of an attorney's fee of $100 for filing brief on appeal and making motion for temporary alimony pending appeal held sufficient.

Appeal from Circuit Court, Logan County. Action for divorce by Edith Riggins against Jesse Riggins. From portion of decree relating to alimony and support of child and father's right of visitation, plaintiff appeals. Reversed in part, affirmed in part.

I. G. Mason, of Adairville, for appellant. S. Y. Trimble, of Hopkinsville, and S. R. Crewdson and R. W. Davis, both of Russellville, for appellee.

THOMAS, J. This is the second appeal of this case; the opinion disposing of the first one is found in 191 Ky. 22, 228 S. W. 1030. The action was brought by appellant, Edith Riggins, against her husband the appellee, Jesse Riggins, to obtain a divorce from him upon the grounds of cruel and inhuman treatment. The defendant answered, denying the alleged grounds, and by a counterclaim he sought the single relief of obtaining for himself the custody of the infant child born as the result of the marriage. Upon a submission and hearing of the action the trial court dismissed the petition as well as the counterclaim, from which judgment the wife prosecuted an appeal to this court (which is the opinion referred to above), and the judgment was affirmed on both the original and cross-appeals.

[1] When the case was tried below, and also when the judgment was affirmed by this court, the wife had the custody of the child, and, since the judgment made no provision for its father to visit it or have it in his custody any of the time, this court in the opinion referred to said:

"The circuit court will retain this case on its docket and enter an order requiring the defendant to pay to the plaintiff each month $25 for the support and maintenance of the infant, the allowance to begin at such time as the pendente allowance now being paid to the mother shall cease; and in addition will enter such order as will permit the father to visit and see the infant at least once a week. The appellee will pay all the costs in this court, in

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cluding a reasonable fee for her attorneys to be fixed by the circuit court."

There is serious objection made to this part of the judgment because (a) it makes no provision for excusing plaintiff from complying with it by delivering the child each Sunday to the defendant regardless of its physical health or the condition of the weather, and because (b) the court, in the former opinion, did not contemplate the taking of the child away from its mother, but only that defendant should visit it at the place of the mother's residence at least once each week.

The opinion of this court was rendered on March 18, 1921, but on February 4, prior thereto, a motion for temporary alimony to the wife pending the appeal was sustained and the husband was directed to pay her $40 per month during the pendency of the appeal, beginning from January 17, 1921, and that order was the only alimony allowance existing in the case. The mandate from this court did not issue until April 23, 1921, which was 30 days after the rendition of the opinion, excluding Sundays, and intentions. strict compliance with section 760 of the Civil Code. After the filing of the mandate and the opinion of this court in the court below there was a judgment entered, directing defendant to pay plaintiff for the support of the child $25 per month beginning on March 18, 1921, which was the day the opinion on the first appeal was rendered, and which we suppose was upon the theory entertained by the court that the temporary allowance made here by the order of February 4, 1921, ceased on that day. In so holding we think the court was in error, since the case was pending in this court until the mandate issued, and the temporary allowance made to plaintiff by that order did not cease till that date. Defendant should be required by the last judgment, from which this appeal was prosecuted, to pay plaintiff at the rate of $40 per month as temporary allowance up to the date of the issuance of the mandate, and the payment of the $25 for the support of the infant child should begin at that time.

[2] We would, perhaps, not have jurisdiction to make this correction (under the doctrine announced in the case of Hoffman v. Hoffman, 190 Ky. 13, 226 S. W. 119, and cases referred to therein), were it not for the fact that we have jurisdiction to review that part of the judgment appealed from fixing defendant's right "to visit and see the infant at least once a week," as directed in the former opinion, and where this court has jurisdiction for one purpose it may review all the questions raised on the appeal, though some of them, standing alone, would not be sufficient to confer jurisdiction.

[3] In the judgment appealed from, rendered, as we have seen, pursuant to the directions of this court on the former appeal, the court directed that the defendant might . take the infant child to his home each Sunday, calling for it after breakfast and returning it to its mother before sundown on the same day, in whose custody it should be "throughout the remainder of each week," and further ordered that

"This method and plan shall be followed by the parties until the further orders of the

We find no merit in either of these conIf there should be a rule for contempt issued against plaintiff for failing to comply with the terms of the order, the court upon the trial thereof would give a practical construction to its judgment, and would not allow a literal construction of it to affect the manifest welfare of the child, or to imperil its health and possibly its life. So that, if during any particular Sunday the circumstances are such that a literal compliance with the order would manifestly result disastrously to the child, the mother would be excused from complying with the order on that particular occasion; but it might be said in passing that no subterfuge on her part should be allowed to interfere with defendant's right as given him by the order.

The position taken in contention (b) would not carry out the spirit and intent of the rule allowing, in all divorce cases, the right of the parent who does not have the custody of infant children reasonable opportunities to see them and to enjoy their society and association, for in the great majority of cases, as appears to be true in this one, the feeling existing between the parents is such as that a mere visit to the home of the custodian of the children would amount practically to a denial of the right given in such cases. It is our conclusion, therefore, that the judgment in this respect did not depart from anything contained in the former opinion and was proper.

[4] Further carrying out the directions of this court, the attorney for plaintiff, upon a return of the case, was allowed in the judgment appealed from a fee of $100 for his services rendered in this court, and plaintiff complains on this appeal that the allowance was insufficient. No payment for services rendered in the preparation and trial of the cause is or was intended to be included in the allowance now called in question. Payment for those services was made by an allowed fee to plaintiff's attorney upon the first trial of the case below, and of which no complaint was made on the first appeal. The only services rendered on that appeal, and for which the questioned allowance was made, was the filing of a

(234 S. W.)

for her temporary alimony pending the appeal. The original record is before us, and we have examined the brief filed by appellant's counsel therein and the motion he made for temporary allowance, and we have no trouble in concluding from them (which is the only evidence before us) that the allowance of $100 in payment therefor was amply sufficient, and that there exists no cause for complaining of the judgment in this respect.

Wherefore the judgment is reversed with reference to the time when the monthly payments for the support of the child should begin and when the temporary alimony allowed by this court should cease, with directions for the court to modify the judgment as herein indicated, but in all other respects it is affirmed.

SHIELDS et al. v. SHIELDS et al.

(Court of Appeals of Kentucky. Oct. 18, 1921.) Executors and administrators

111(9)—Executor held not entitled to attorney's fees, as

excessive.

Where the greater part of services of attorney were rendered to an executor in his individual capacity, as a partner and devisee under the will, and the value of the entire services were only $4,000, an allowance of attorney's fees of $3,000 against the estate was excessive.

"While it is true that the suit involved primarily, a construction of the will made necessary by reason of the diverse contentions of plaintiff on the one side and the other heirs and devisees of the decedent on the other, it is also true that the executor and his attorneys took the side of and represented only M. T. Shields as an individual in his effort to procure a favorable and unwarranted construction of the will and settlement of the estate. The duty of the executor and the claim of the individual M. T. Shields were so entirely antagonistic that no attorney could possibly represent both at the same time and in the same litigation. A disinterested executor necessarily would have brought suit for a construction of the will against all of the heirs and devisees, calling upon them unaided by him or his counsel to fight out among themselves their adverse contentions.

Under such circumstances an executor would have been entitled to an allowance for his attorneys, but in so far as this litigation is concerned, in which most of the services are alleged to have been performed, no such question is presented. The services of counsel for plaintiff were worth $5,000, as is conclusively proved, but nearly all of them were tendered to M. T. Shields individually and not as executor. That some part of these services would have been required by a disinterested executor is wholly beside the question, since there was no such executor in this litigation. Should then defendants, who to protect their interests under the will were required to employ and pay their own counsel by reason of the hostile and unwarranted atti tude of the executor, be required to pay any part of his attorney's fee in this action? A mere statement of the proposition sufficiently exposes its injustice and inequity. Under somewhat analogous circumstances, this court has

Appeal from Circuit Court, Nelson refused to make litigants pay any part of an County.

Action by M. T. Shields, executor, and others against Ed. T. Shields and others. From an adverse judgment, defendants appeal. Reversed, with directions.

attorney's fee of which they might have been, but were not, beneficiaries. See Whitehead v. Fulton, 187 Ky. 718, and cases there cited."

The exact question left for determination was the value of the services of counsel engaged by the executor, which were rendered

Nat W. Halstead, of Bardstown, for ap to him in his individual capacity as partpellants.

Kelley & Kelley, John S. Kelley, John A. Fulton, E. N. Fulton, and Victor Kelley, all of Bardstown, for appellees.

SAMPSON, J. This litigation originally arose over the construction of the will of M. T. Shields. After a trial in the Nelson circuit court, the case was brought to this court on appeal-the opinion rendered may be found in 185 Ky. 249, 214 S. W. 907. The judgment was reversed, and the case remanded to the trial court for further consideration. The executor asked an allowance of $5,000, for his attorneys, but the court allowed them $4,000, and from this judgment the executor appealed, and Ed. T. Shields and others prosecuted a crossappeal. The opinion delivered (190 Ky. 109, 226 S. W. 392) is in part as follows:

ner, and devisee under the will. In the opinion above referred to, we said:

"The executor performed some necessary services for the estate in which attorney's services were required and had, aside from this litigation, such as probating the will, payment of inheritance taxes, etc., for which he is entitled to allowance for attorney's fee expended, but it does not appear what such services were reasonably worth, as the evidence as to value was of the entire service performed by his attorneys, including this litigation."

The case was again returned to the trial court for the purpose of hearing evidence upon the value of service performed by counsel to the executor independent of the present litigation, and especially relating to such services as were so rendered on the probation of the will, payment of inheritance taxes, and the preparation of the case

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in so far as it related to the particular farm | tee the burden of showing, not only the fairwhich the testator directed to be sold, and ness of the transaction, but that it was a free to advice and professional assistance which and voluntary act of a capable mind. counsel rendered to the executor in the proper administration of the affairs of his office. Appellees introduced evidence of witnesses which tends to show that the services thus rendered were reasonably worth $3,500. The court fixed the fee at $3,000 and Ed. T. Shields and others prosecute this appeal from that judgment.

The trial court will enter a judgment in George N. Power died intestate, unmarried, conformity to this opinion.

(234 S.W.)

and W. P. Power have paid the annual tax on, testified that during the last few years of his said land for several years last past, and have life Sanford R. Power was not only feeble in aided and assisted both by labor and money body, but did not have sufficient mental cain running the farm for first parties for sev-pacity to transact business or to understand eral years last past, and the further consideration of $86.68 paid by the said W. P. Power for doctor bills, burial expenses, and money furnished for G. N. Power, and other true and valuable considerations, the receipt of which is hereby acknowledged."

Some of the nature and effect of a deed. these witnesses detailed certain circumstances which, if true, would tend to sustain their opinion. There was also testimony to the effect that Cynthia Power and Will Press Power were the dominant characters in the household, and exercised great influence over Sanford R. Power.

On August 31, 1916, J. Frank Power and others, the children and heirs of Sanford R. Power, brought suit against Will Press Power [1, 2] There was no substantial evidence of to cancel the deed executed to him by his father and mother on December 30, 1914. The Power when the deed of 1907 was executed. mental incapacity on the part of Sanford R. grounds relied on were mental incapacity and undue influence. Some time later, the same It appears that the deeds then made by the grantor to his two sons were made for the parties instituted another action against their brother, Will Press Power, to set aside purpose of dividing his land among his chilthe deed executed to him by Sanford R. Pow-ced in by the children. Furthermore the land dren, and that this arrangement was acquieser and wife on April 6, 1907. The two cases were consolidated, and on final hearing the deed of December 30, 1914, was set aside, while the petition seeking to cancel the deed of April 6, 1907, was dismissed. Will Press Power appeals, and the plaintiffs prosecute a cross-appeal.

At the time Sanford R. Power executed the

deeds to his two sons, Will Press Power and George N. Power, in the years 1907 and 1908, he had ten children. The $300 consideration mentioned in each deed was not paid at the time the conveyance was made, but the eight other children of the grantor were to receive $75 each; each of the grantees paying these

sums to four of the children.

Defendant

further claimed that it was a part of the consideration that he and George should support their father and mother, and that they performed this obligation by either working on the farm themselves, or paying others to do the work, and by paying grocery bills amounting to $300 or $400. The defendant had paid the sums due by him, but George had not discharged all of his obligations at the time of his death. His father, defendant says, asked defendant if he would not take the land and discharge George's obligations, and this he consented to do. The proposition was made by his father without any solicitation on his part. The deed was drawn and explained to his father, and was then signed and acknowledged. His mother testified that she never suggested the making of the deed of 1914 to her husband, but that her husband proposed to make the deed be cause Will Press had borne the burden of their support, and because the other children had agreed to accept $75 apiece as a proper division of the land. The notary public and others who were present when the deed of 1914 was executed say that Sanford Power's mind was all right, and that he knew and understood exactly what he was doing. Many other witnesses say that his mental capacity was good, even up to the time of his death. On the other hand, about 40 witnesses

at that time was of little value, and, considering the evidence as a whole, we perceive no reason why the judgment of the chancellor refusing to set aside the deed of 1907 should

not be sustained.

When we come to the deed of 1914 a different situation is presented. Will Press Power had already received his half of the four of his brothers and sisters $75 each and land in consideration of his promise to pay to support his father and mother, and there ceive the other half of the land for making was no particular reason why he should rethe payments and performing the services which he had already made and performed. and half of it was worth much more than the Furthermore, the land had increased in value future obligations which Will Press Power assumed by the deed. No doubt any one of the other children would have been glad to take the land and discharge those obligations. The case is one where a confidential relation existed between the parties, and, clearly, where an aged and infirm man conveys all of his property to his son, who is the dominant character in the household, to the exclusion of his other children, for a past consideration for which the son had received other property, and for a future consideration much less than the value of the land conveyed, the law looks with suspicion on the transaction, and places on the grantee the burden of showing, not only the fairness of the transaction, but that it was a free and voluntary act of a capable mind. Davidson v. Davidson, 180 Ky. 190, 202 S. W. 493.

Here the grantor was

78 or 79 years of age. By the death of his son George he inherited the land in question. George's death took place on December 25th. Only five days later the father made the conveyance to Will Press Power. There is substantial evidence of mental incapacity at the time. While there is some evidence to the contrary, as well as to the effect that the execution of the deed was the free and voluntary act of the grantor, we are not pre