author: CLAY, Commissioner.

text:
    GULF INTERSTATE GAS COMPANY, Appellant, v. J. C. GARVIN et al., Appellees.
    Court of Appeals of Kentucky.
    May 24, 1963.

      Thomas D. Theobald, Jr., Grayson, R. Vincent Goodlett, Frankfort, Hazelrigg & Cox, Frankfort, of counsel, for appellant.
    W. IT. Counts, Olive Hill, H. R. Wilhoit, Grayson, for appellees.
   CLAY, Commissioner.

In this proceeding appellant sought to condemn a pipeline easement through land containing a vein of fire clay. Appellees are the owners of a leasehold interest in the land. The principal controversy involves the nature of this leasehold interest and the proper measure of damages. (Agreed compensation was paid to the owners of the land and they are not parties to the suit.)

This is a second appeal. In Gulf Interstate Gas Company v. Garvin, Ky., 303 S.W.2d 260, we reversed a judgment awarding the lessees $18,000, principally on the grounds of the incompetency of certain evidence and the excessiveness of the award. Upon a retrial a jury returned a verdict for $15,000. On this appeal the condemnor contends the evidence with respect to damages on the second trial was of the same character as that held incompetent in our first opinion, which again resulted in an excessive verdict.

On the first trial the lessees sought to prove their damages by evidence that some 53,000 tons of fire clay could not be removed because of the easement, and this fire clay in the ground had a value of .75‡ per ton. The lessees claimed the basis of damages was the product reached by multiplying the estimated number of tons lost by the unit price per ton. Upon ample authority we held this to be an improper method of computing damages for the taking of. unexposed solid minerals in the ground.

On the second trial the lessees introduced testimony concerning an estimated acreage of fire clay which would be lost by virtue of the condemnation and the value, of that fire clay per acre. This constituted an attempt to prove damages by fixing the quantity of fire clay in units of acres and multiplying that figure by a fixed price per unit. (There was completely unsupported testimony the fire clay in the ground was worth $6,000 an acre.) This is the precise method of measuring damages which we condemned in the first opinion. It is unrelated to the value of the land as a whole or the value of the lease. It affords no sound basis for the award of just compensation.

Since the judgment must be reversed on the ground just discussed, it appears necessary to reappraise the nature of appellees’ leasehold interest and the proper measure of damages in a condemnation case of this character. While in our first opinion we pointed out that the measure of recovery was the diminished value of the leasehold, we perhaps were not sufficiently specific in detailing the method by which the actual damages for this diminution could be determined. In addition, certain language used in our first opinion suggested an approach to the problem which would lead to an unstable criteria of damages. We have since exhaustively re-examined the whole theory underlying the measure of damages in condemnation cases in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (involving a lease for commercial use). That opinion, with this one, will constitute a modification and extension of our first opinion in Gulf Interstate Company v. Garvin, Ky., 303 S.W.2d 260.

In our first opinion we assumed that a lease such as the one before us constituted a sale and conveyance of title to the minerals in place and a severance of the minerals from the surface. While this concept might be acceptable for some purposes, it is not a helpful hypothesis for determining damages in a condemnation case. As a matter of fact, it suggests the mineral estate may be evaluated separately from the land, of which it is a part, taken or injured. This may not be done.

In our first opinion we cited the following authorities which establish the accepted rule: where land containing minerals is condemned, the quantity and quality of the minerals may be properly considered as affecting the market value of the land but they cannot he valued separately. Nedrow v. Michigan-Wisconsin Pipeline Company, 245 Iowa 763, 61 N.W.2d 687; Hollister v. Cox, 131 Conn. 523, 41 A.2d 93, 156 A.L.R. 1412; Saulsberry v. Kentucky & West Virginia Power Co., 226 Ky. 75, 10 S.W.2d 451; 4, Nicols on Eminent Domain, section 13.22(1); 18 Am.Jur., Eminent Domain, section 242 (page 878). See also Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541; State by and through State Highway Commission v. Arnold, 218 Or. 43, 341 P.2d 1089; Georgia Kaolin Co. v. U. S., 5 Cir., 214 F.2d 284.

Elsewhere in the first opinion we suggested that the diminished value of a leasehold could be established on the basis of the reasonable worth of the fire clay in place. This would of course require evaluating it apart from the land as a whole, which cannot be done in a legally acceptable manner. The inutility of this measure of recovery is immediately apparent for this reason: It is practically impossible to obtain credible evidence of the reasonable market value of fire clay in place because it is not bought and sold as such and has no market value as such.

In addition this measurement of damages has no relationship to the value of the land as a whole and it is entirely possible that an award for this interest in the land would exceed such latter value. The condemnor cannot be required to pay as just compensation for separate interests in land a sum in excess of the market value of the whole. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Orgel on Valuation Under Eminent Domain (2d Ed.), Vol. 1, section 109 (page 461); Lewis on Eminent Domain (3d Ed.), Vol. 2, section 716 (page 1253).

There are two old Pennsylvania cases which stated the measure of damages for exposed minerals as being the reasonable market value of the minerals in place. Lehigh Coal Co. v. Wilkes-Barre & Eastern R. Co., 187 Pa. 145, 41 A. 37; and Cole v. Ellwood Power Co., 216 Pa. 283, 65 A. 678. The first case involved a culm bank of coal, which the court treated as personalty. (Compare United States v. 12.75 Acres of Land, D.C., 95 F.Supp. 998, where exposed sand was taken.)

The second case involved boulders and stone in a rock quarry. The court in stating the proper measure of damages to be “the actual value of the stone in place” was distinguishing this from the speculative value of the stone when cut and sold in the market. If the court was treating the stone as personalty, the opinion appears sound. If otherwise, that case is without authoritative support. It is contrary to the prior decision of Reading & Pottsville R. Co. v. Balthaser, 119 Pa. 472, 13 A. 294, and has in effect been completely repudiated by other Pennsylvania decisions, the last one of which is Sgarlat Estate v. Commonwealth, 398 Pa. 406, 158 A.2d 541. The Pennsylvania cases are also carefully examined in Nedrow v. Michigan-Wisconsin Pipeline Co., 245 Iowa 763, 61 N.W.2d 687, wherein it is held that solid minerals cannot be evaluated separately from the land of which they form a part.

A theory that a solid mineral underground can or may be evaluated as a separate piece of real estate apart from the surface for condemnation purposes is unsound and contrary to all of the carefully considered cases on the question. The damages in this case cannot therefore be based upon a nonexistent reasonable market value of the fire clay in place.

The condemnor contends that at most the lease may be construed as an executory sale of personalty coupled with an incidental license to remove the fire clay, citing United States v. 1,070 Acres of Land, D.C., 52 F.Supp. 378. Without expressing approval or disapproval of that opinion, it is clearly distinguishable because it involved exposed sand and gravel treated as personalty, which is different from solid minerals in the ground. See Kincaid v. McGown, 88 Ky. 91, 4 S.W. 802; State by and through State Highway Commission v. Arnold, 218 Or. 43, 341 P.2d 1089.

The condemnor also contends that the particular lease in this case did not create a sufficient interest in the land to have compensable value. It is argued the lease is nothing more than an option to purchase fire clay at a fixed (royalty) price per ton. Cases are cited to the effect that an option to purchase is not a compensable interest in land.

We are not inclined to construe this lease as an option to purchase either the fire clay or the land of which it is a part. In any event, such characterization of the lessees’ rights is not determinative of whether or not they are compensable.

In City of Ashland v. Kiddle, Ky., 347 S.W.2d 522, it was held that a lease contract, giving the lessee the right of first refusal in the event the lessor decided to sell the leased premises (no price being fixed), did not constitute such an interest in land as to be compensable. While the decision suggests that the right of first refusal was not compensable because it did not constitute an “interest” in the land, a sound rationale of the decision is that the loss of the right was not compensable because it had no value when the land was condemned. This will become apparent as we proceed.

The Kiddle opinion cited authorities to the effect that an option to purchase land at a fixed price does not constitute an “interest” in the real estate. In the light of our opinion in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, this indicates an unworkable approach to the problem. Much difficulty has been encountered in the past by first undertaking to determine if a particular right in land (other than fee ownership) constituted an interest therein, and then attempting to ascertain its value and the damages sustained. A better approach is to first ascertain whether the existence of the right affects the market value of the land if sold subject thereto. If, at the time of condemnation, any outstanding right enforceable against the owner of the fee reduces the market value of his title, it is such an interest that the owner of the right must be compensated for its taking or impairment. Thus the nature of the interest is not the controlling factor.

The basic measure of damages in condemnation proceedings must of necessity be anchored to the fair or reasonable market value of the land (that is, a particular tract) being taken. To slip this anchor means drifting on unchartered seas which leads to speculative valuation involving special uses and potential business profits. While tlx ideal of absolutely “just compensation” cannot always be reached, there must be legal rules which, insure the fairest practical result to both the condemnor and the condemnee. Market value of land, as land, has from time immemorial proven the most practical basis for the measurement of damages in condemnation cases. See United States v. 12.75 Acres of Land, D.C., 95 F.Supp. 998.

If no lease were involved, the proper measure of damages would be the difference in the fair market value of the land before and after the taking. This amount is all that the condemnor is required to pay. The fact that the interests in the land may be separately owned does not affect this basic method of determining just compensation. See Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844.

We have heretofore pointed out that the lessees may have a compensable interest in the land and our objective is to secure for them just compensation for the loss in value of that interest. If it has value, then its diminution must have a proportionate relationship to the diminution in the market value of the land as a whole. There is simply no other practical method of proving proper damages.

In order to establish a right to damages, appellees may properly introduce evidence concerning the estimated amount of fire clay in the land, the terms of its lease, and any other factors which tend to establish that the leasehold interest had value. The purpose of this proof would be to show the existence of the lease had decreased the market value of the land as a whole. As will be apparent from the instructions hereafter set out, the lessees are entitled to damages only if the outstanding leasehold interest has diminished that market value prior to the taking. This will fix the percentage of ownership interest of the lessees in the land.

The damages will be based upon the extent to which the easement diminishes the fair market value of the land as a whole, and consequently evidence (of the kind heretofore introduced) pertaining to the extent to which the lessees’ particular right to mine has been impaired is irrelevant.

Substantially adopting the instructions set forth in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, instructions of the following character should be given to the jury:

A. You will find the fair market value of the tract of land owned by the lessor, which is subject to this fire clay lease, as a whole immediately before the taking, giving consideration to the fact that it may be leased for mining purposes but evaluating it as if free and clear of the lease.

B. You will next find the fair market value of the same tract of land immediately before the taking, if sold subject to the defendant’s lease.

C. You will next find the fair market value of such tract immediately after being subjected to plaintiff’s easement, evaluating it as if free and clear of the lease.

The above instructions should be supplemented by proper instructions briefly outlining the terms of the lease and the scope of the easement. In addition, an instruction should be given which defines “fair market value”.

The findings of the jury under Instructions A, B and C above are the basis upon which damages, if any, shall be awarded the lessees. The trial court shall make the following computations:

(1) Subtract the figure found under C from the figure found under A. The remainder is the total damages for which the condemnor could be liable.

(2) If B is the same, or more than A, then no award shall be made to the lessees because these findings would be tantamount to a finding that the leasehold had no value as .an interest in this land.

(3) If B is less than A, subtract B from A and then divide the remainder by A. This figure will be the percentage of ownership interest the lessees are deemed to have had in the tract before the condemnation.

(4) Multiply the total damages found under (1) above by the percentage found under (3) above. The product will be the lessees’ share of the total damages.

This opinion shall be deemed to supersede the opinion on the first appeal of this case (Gulf Interstate Gas Company v. Garvin, Ky., 303 S.W.2d 260) to the extent of any inconsistency.

The motions of the appellant filed subsequent to the filing of a petition for rehearing on this appeal are overruled.

The judgment is reversed with directions to grant a new trial. The costs on this appeal shall be equally divided between the parties.


source: Caselaw Access Project

author: EARL T. OSBORNE, Special Commissioner.

license: Public Domain

text:
    Jack SPURLIN, Appellant, v. Odes SLOAN and Spencer Sloan, d/b/a Sloan Construction Company and Arvie Burchett, Appellees.
    Court of Appeals of Kentucky.
    May 31, 1963.
    C. Kilmer Combs, Ashland, for appellant.
    Clark Pratt, Hindman, for appellees.
   EARL T. OSBORNE, Special Commissioner.

This is an action by Jack Spurlin against Arvie Burchett in which Spurlin obtained judgment in the Floyd Circuit Court and attached money due Burchett for work performed upon a project in Lawrence County by the Department of Highways. The question is the priority of an attachment lien over a previous assignment of money due the assignor.

Prior to the execution of the attachment, Burchett had made an assignment to Spencer Sloan and Odes Sloan, d. b. a. Sloan Construction Company, of the funds due him by the Department. The assignment was for the purpose of settling partnership accounts between Burchett and the Sloans.

On November 17, 1959, Burchett and the Sloans had entered into a contract with the Commonwealth for the construction of a road in Lawrence County with the understanding that each party was to perform a specified portion of the work and to receive his share of the contract money to be apportioned in accordance with the proportion of work performed. On September 20, 1960, the Lawrence County contract had been completed and there was due to the partnership of Burchett and Sloan the sum of $6,613.40. Of this amount there was due Spencer and Odes Sloan the sum of $2,890.-76 and to Burchett the sum of $3,722.64. On September 20, 1960, Burchett, in order to settle his accounts with the Sloans for the sum of $3,743.06, which was owing them for their work on the Lawrence County job, assigned to -the Sloans his right, title and interest in the funds due under the Lawrence County contract. This assignment provided that the money was to be paid to the Bank of Hindman to pay off a loan to the Sloans in the amount of $5,047.27. The assignment directed the Commonwealth to pay the full amount due to the Bank of Hindman, and the bank was authorized to receive the funds and first apply them to the payment of the indebtedness of the Sloans and then distribute the remainder as directed in the assignment. There was not a sufficient amount due to Burchett to pay the full amount of his indebtedness to the Sloans.

A copy of the assignment was sent to the Department of Highways on October 17, 1960. The Department advised the parties that it could not be a party to the assignment but that it would comply by mailing any amount due under the contract to the Bank of Hindman. Thereafter, the Department marked its books and set up the payments to be made in this manner. However, before the check was mailed to the Bank, the plaintiff caused an attachment to be issued, which was served on April 12, 1961, upon the Department. As garnishee, the Department then paid the funds into the circuit court to await an adjudication of the rights of the parties in this action.

It is the contention of the plaintiff, Jack Spurlin, that he has a prior right to that portion of the funds which belonged to Burchett under the highway contract as a result of his attachment herein. It is the contention of the defendants herein, Odes and Spencer Sloan, that the assignment was complete and final and the attachment created no lien.

Prior to the enactment of Chapter 355 of the Kentucky Revised Statutes, which is commonly referred to as the Uniform Commercial Code, there was no doubt under the laws of this Commonwealth but what the attachment would have been ineffective against the assignee of these funds. In the case of R. C. Poage Milling Co. v. Economy Fuel Co., Ky., 128 S.W. 311, it was held where one assigned to a bank certain accounts, absolutely agreeing to collect and account for same to the bank without expense to it and to also deliver to it duplicate bills which it might collect through its own channels, if it so elected, there was an unconditional assignment of the funds, and an attaching creditor of the assignor obtained no interest in them.

- It is contended by the appellant in this case that the assignment transferred a significant part of the outstanding contract rights of the defendant, Burchett, and was not perfected because it was not filed or otherwise noted of record in the county of Burchett’s residence, and that the appellant became a lien creditor without knowledge of the assignment, which was never perfected and, therefore, has a prior right to these funds under the provisions of KRS 355.9-301 (1-b).

The above cited section of the statutes reads as follows:

“Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of (b) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected.”

We are of the opinion that appellant is in error in his contention. It will be noted that the above section only pertains to “Security interest.” Under KRS 355.1-201(37) we find “Security interest” defined as follows:

“ 'Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (KRS 355.2-401) is limited in effect .to a reservation of a ‘security interest’. The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to Article 9. The special property interest of a buyer of goods on identification of such goods to a contract for sale under KRS 355.2-401 is not a ‘security interest’, but a buyer may also acquire a ‘security interest’ by complying with Article 9. Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ but a consignment is in any event subject to the provisions on consignment sales (KRS 355.2-326), Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.”

The assignment between Burchett and the Sloans was not a security transaction as contemplated by the above statutes. This assignment was an absolute assignment of a right to collect money due and owing. It was also not an assignment of “Contract right” as contemplated by the Commercial Code. KRS 355.9-106 defines “Contract right” as follows: “ ‘Contract right’ means any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper.”

The obligation of the State Highway Department to Burchett was no longer a “Contract right” as it had already been earned by performance. We are of the opinion it was an “Account,” as defined by the above statute, and as such its absolute assignment for the payment of a past due obligation was not a security transaction.

For the above reasons we are of the opinion that no part of KRS 355, commonly referred to as the Uniform Commercial Code, applies to a written assignment of funds presently due and owing for the purpose of liquidation or satisfying a prior existing obligation. Therefore, the judgment of the trial court is affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    Faye Reynolds SALISBURY, etc., Appellant, v. Gloria Dean Salisbury VICK et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.
    As Modified on Denial of Rehearing June 28, 1963.
    C. Kilmer Combs, Ashland, W. W. Bur-chett, Prestonsburg, for appellant.
    Hollie Conley, Paul E. Hayes, Prestons-burg, Malcolm Y. Marshall, Richard F. Newell, Odgen, Brown, Robertson & Marshall, Louisville, for appellees.
   CLAY, Commissioner.

This controversy involves the right to $20,000 proceeds payable under a life insurance policy. The former wife of the insured claims as the designated beneficiary, and his present widow asserts a claim on behalf of his estate. The trial court found for the former wife.

On September 9, 1957, Orris Salisbury procured a Family Protector Policy with the Commonwealth Life Insurance Company. The principal beneficiary was his “Insured Wife”, the appellee. The face amount was $10,000, with a double indemnity provision. The premiums were paid by the husband through July 8, 1958.

On July 5, 1958 appellee was granted an absolute divorce from the insured. He thereafter married appellant, and died as a result of an accident on December 10, 1960.

Under KRS 403.060(2) and 403.065, as construed in Warren v. Spurlock’s Adm’r, 292 Ky. 668, 157 S.W.2d 858, and numerous other cases, every right appellee had in this insurance policy as a beneficiary was abrogated by the divorce.

Appellee contends there are several distinguishing features in this case which militate against the application of that rule. It is maintained appellant failed to show ap-pellee’s interest as beneficiary was obtained by reason of marriage, but KRS 403.065 creates that presumption.and it was not rebutted.

Appellee also contends her right as beneficiary could not be abrogated because the policy did not permit a change of beneficiary, because she had an irrevocable interest, because she had an insurable interest after the divorce, and because the only thing that could have been restored to her husband upon divorce was the cash surrender value of the policy. These contentions do not reach the issue in the case. Assuming appellee had a vested interest in the policy, that is exactly what the law took from her and restored to the husband upon the entry of the judgment of divorce.

There is one other feature of the case which has not heretofore been considered in our decided cases. After the divorce appel-lee paid the premiums on the policy up until the death of her former husband: In effect she argues that this somehow revived her interest as beneficiary. In Ficke v. Prudential Ins. Co. of America, 305 Ky. 171, 202 S.W.2d 429, 175 A.L.R. 1215, we overruled a number of former cases and held that where the wife procures an insurance policy and pays the insurance premiums dioring the marriage, divorce does not abrogate the contract and she is entitled to collect the proceeds as beneficiary. This rule is based on the principle that at the time of the divorce the insurance policy was the wife’s property, not the husband’s. Appellee would have us expand this legal concept to recognize that the wife may, after the divorce, reinstate her lost interest in the policy by the payment of premiums.

We know of no principle of law which would justify such a holding. After the divorce, having been compelled by law to surrender her rights in the insurance contract, the former wife is a complete stranger to it. If she may thereafter buy a new interest in the policy, complex questions of insurable interest and proper division of the proceeds arise. Every case of this sort would require the writing of new law to cover differing facts and equitable considerations. Unless our decisions are anchored to legal principles long established in Kentucky, litigation would be encouraged and confusion compounded.

Appellee lost her interest in this policy when the divorce judgment was entered and that interest was not reinstated by the subsequent payment of premiums. However, she is entitled to recover from the proceeds of the policy all premiums paid by her with six percent interest from the dates the premiums were paid.

The $20,000 proceeds of the policy are payable to the estate of the deceased. The estate is likewise entitled to the fair cash value of a $500 paid up policy on the life of appellee which the insurance company was obligated to issue. (No question is raised in this litigation with respect to another paid up $500 policy which the insurance company has already issued to the insured's child.)

The judgment is reversed with directions to enter a judgment consistent with this opinion.


text:
    Paul CASSIDY et al., Appellants, v. CITY OF BOWLING GREEN, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 31, 1963.

      E. R. Gregory, Bowling Green, for appellants.
    G. D. Milliken, Jr., Bowling Green, for appellees.
   CLAY, Commissioner.

This is a declaratory judgment action involving the constitutional validity of certain ordinances of the City of Bowling Green which established a municipally operated garbage disposal system. Particularly in question is the right of the City to require those who do not use the service to pay the regular monthly charge and the right of the City to cut off its water service to property owners or tenants whose garbage disposal bills are delinquent.

Because of a health problem in Bowling Green, arising from unregulated private garbage disposal, the City enacted a comprehensive ordinance making it unlawful to permit the accumulation of refuse in, about, or upon premises in the City, to deliver refuse to or from private property, to dispose of trash within the corporate limits, or to engage in the business of collection, removal or disposal of refuse therein.

In 1958, under statutory authority, the City created its own garbage collection and disposal system and bonds in the amount of $100,000 were issued to finance it. A service charge of $1.50 a month was established. Difficulties in connection with the collection of this service charge soon arose. Unpaid bills accumulated which threatened the financial soundness of the system. Thereupon the City enacted two more ordinances providing in substance: (1) the owners of property should be responsible for the service charge, even though premises were occupied by a tenant, and (2) city operated water and sewer services could be discontinued as a means of enforcing the payment of the garbage disposal service charge.

The plaintiffs represent two classes: (1) those who do not desire garbage disposal service, and (2) landlords who have the water meters in their names but whose premises are occupied by tenants who fail to pay the garbage disposal service charge.

The plaintiffs’ first argument is that the City cannot require the owners or occupiers of property to use the garbage disposal service and therefore cannot charge them for it if it is not used. The evidence is convincing (if any were needed) that exclusive control of garbage disposal in Bowling Green by the City is an essential health measure in the public interest. The right of regulation is clearly within the police power of the City. It was shown that the health and welfare of the City residents would be preserved and promoted by prohibiting private garbage disposal and requiring those owning or occupying real property to use the municipal system.

Garbage disposal falls within the same class as sewage disposal. It was long ago established that a city may properly forbid the use of private facilities and compel its inhabitants to use the public system. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761.

Since the City may require those owning or occupying property to accept its services, it may likewise require them to share the expenses thereof by the payment of reasonable fees. 11 Am.Jur., Constitutional Law, section 298 (page 1068). The test of course is one of reasonableness, but appellants do not contest the reasonableness of this charge or the constitutionality of the statute (KRS 94.285) which authorized it.

The contention that this service charge may not be imposed upon the property owner when the service is rendered to the tenant is without merit. This service is rendered to the property and the benefits accrue to the owner as well as the tenant. The question is again one of reasonableness and it is certainly not unreasonable to require property owners to contribute to the support of a system which benefits all property and all inhabitants within the City.

The final contention is that the City may not enforce collection of its garbage disposal charges by discontinuance of its water services. We are unable to grasp from appellants’ brief what constitutional right is being breached by this method of collecting bills. It is shown by this record that for public health and sanitation purposes the City furnishes water service, sewerage service, and garbage disposal service. They are all inter-related and the City is under no obligation to furnish any or all of these services except upon the payment of reasonable charges. This public health program, while divided into separate administrative units, is a single program. Any reasonable method of collection is justified and certainly deprives appellants of no constitutional rights.

The reasonableness of discontinuing one public service for failure to pay for a related public service was recognized in Rash v. Louisville & Jefferson County Met. Sewer Dist., 309 Ky. 442, 217 S.W.2d 232, and City of Covington v. Sanitation District No. 1, Ky., 301 S.W.2d 885. We are not inclined to say that interdependence is necessarily a controlling factor. However, the record shows that garbage disposal and water supply are closely related from a sanitation standpoint and we can find nothing arbitrary or unreasonable about this method of collecting service charges.

The trial court correctly decided that the ordinances herein questioned are valid.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    PHELPS ROOFING COMPANY, Incorporated, Appellant, v. Joseph E. JOHNSON, III, Adm’r of the Estate of Mary Elizabeth English, Deceased, Appellee.
    Court of Appeals of Kentucky.
    May 31, 1963.

      John L. Davis, Stoll, Keenon & Park, Lexington, for appellant.
    Owen S. Lee, Strother Kiser, Lexington, for appellee.
   PALMORE, Judge.

Mary Elizabeth English, a 27-year old colored girl, was killed when she fell to the basement from the second story of an apartment or tenement house wherein she was a social guest at a late-at-night drinking party with some of the tenants of the house. Ostensibly in search of a bathroom in the apartment of L. C. Sanders, one of the participants in the party, she mistakenly went out a door connecting one of Sanders’ two rooms with a rear hall and stairway that was in process of being dismantled and replaced by the landlords’ contractor. The stairs and railings had been completely removed, and the flooring had been taken up except for the joists, which extended outward a short distance from the wall separating the hall from Sanders’ apartment. Two doors had been laid flat on the protruding floor joists, but were not nailed or otherwise secured. Mary Elizabeth evidently had not visited the premises before and was not aware of the condition. Emerging from the light of Sanders’ room into the unlighted hallway, she stepped on the door or doors lying on the floor joists, lost her balance, and plummeted down the open stair well to her death a story and a half below.

The contractor appeals from a $20,000 judgment entered on a jury verdict in a wrongful death action brought by the administrator of Mary Elizabeth’s estate.

There can be little doubt from the evidence in this case that immediately prior to the commencement of repairs the rear hallway was a part of the premises not within the control of any tenant, but which the tenant Sanders and his guests were entitled to use as appurtenant to the part leased to him. If this continued to be the case while the repairs were in progress, the landlords and their contractor were liable under the principles stated in §§ 360 and 383, Restatement of Torts. Cf. Dixon v. Wootton, 307 Ky. 338, 210 S.W.2d 967 (1948). There was, however, an issue of fact as to whether, with the beginning of the repair work, there was a change in the status of the rear hallway, and a consideration of the arguments relative to the instructions must focus on the narrower question of just what was necessary, as against the lessee’s social guest without actual notice, in order to effect such a change.

Traditionally, the lessor’s duty to maintain in a safe condition those parts of the premises which he retains in his own control but intends to be used by his tenants and their invitees and licensees is said to rest on the theory of invitation, express or implied in fact. Cf. Tiffany on Landlord and Tenant, § 89a. Hence if the landlord changes his mind and tells the tenant he can no longer use a particular area outside the leased part it would follow logically that the landlord’s duty is at an end. However, it is well settled that implied invitation is not the only premise on which the lessor’s duty is founded. His responsibility arises principally from the law of negligence. Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751, 752 (1920); Nash v. Searcy, 256 Ky. 234, 75 S.W.2d 1052, 1054 (1934).

Instruction No. “X” offered by defendants submitted the proposition that if in fact the place where the decedent fell was not then intended for use as an entrance, exit or passageway there was no liability on their part. The court instead gave Instruction No. 7, absolving them on this theory only if the decedent had notice that such a use was not intended, and Instruction No. 8, likewise denying recovery if defendants had in fact barred and nailed the door (as they testified they did) in a manner sufficient to give such notice, and if the doors had been thereafter unfastened without their knowledge. Within the context of the evidence presented, the latter two instructions correctly stated the law. Proffered instruction ‘X’ was improper, because under it the duty of the landlords and their contractor would have depended entirely upon a subjective state of mind rather than the objective standard of ordinary care.

Being contiguous both to the front hall and to Sanders’ apartment, and connected to each by a door, the rear passageway was a place a reasonable man should have expected people lawfully on the premises to use unless forewarned. From a practical standpoint, defendants admitted this by testifying that they did in fact bar or nail the two doors shut. It is our opinion that when the flooring was taken up and the stairs removed, creating an extreme hazard to any person attempting a passage (particularly at night), it was incumbent on the defendants as a matter of law either to bar the doors or to put up warning signs so placed and lighted as to furnish reasonable notice of the danger. This was the substantial effect of Instruction No. 1, and we think it was correct. When certain acts and omissions constitute negligence as a matter of law the plaintiff is entitled to instructions that say so. Actually, Instruction No. 1 in this case could have been simplified almost to the point of saying that if the contractor failed to nail up or bar the doors the plaintiff was entitled to recover unless his decedent were found contributorily negligent. Limiting an instruction to the salient facts in issue, on which the conclusion of liability or non-liability necessarily depends, does not violate the rule against giving “undue prominence to certain facts and issues.” (See, for example, discussion in Barker v. Sanders, Ky.1961, 347 S.W.2d 529, 531, suggesting that in an intersection case instructions may and often should be simplified to the point of submitting the case on the precise and certain issue of whether a party had the green light.)

The police officer called to the scene very shortly after the fatal accident in this case found both doors to the back hallway unsecured and saw no indication that they had been barred or nailed shut. From the testimony of Ella Bybee and Richard Price the jury had sufficient basis to infer that the situation had been that way for a week or so beforehand and, indeed, that the doors never had been barred at all. The jury was not bound to believe the defense testimony in this respect, even though it may technically have been “un-controverted.” That the door leading from the front hall to the back hall was unsecured (as the jury was authorized to believe), plus the fact that two doors had been laid on the floor joists to provide walking space, justified the further inference that the landlords contemplated a continued use of the passageway for access to Sanders’ kitchen and apartment. Again, the jury was not obliged to believe that the doors had been laid down for the benefit of the carpenters. We find no tenable basis on which the trial court could have directed a verdict.

There was evidence that Mary Elizabeth English had been drinking, but none that she was drunk or that her faculties were impaired. We cannot say as a matter of law that she was contributorily negligent in stepping through the door into the comparative darkness of the hallway without waiting for her eyes to adjust to the difference. Pease v. Nichols, Ky., 316 S.W.2d 849 (1958), in which the plaintiff-tenant was well aware of the danger before she started down the stairs, is not analogous.

At the time of her death Mary Elizabeth was in good health and, though encumbered by four illegitimate children, did day work as a maid for different people and worked seasonally at a tobacco factory. Average wages paid for household servants in the community were $30 per week. Tobacco factory work pays $1.15 per hour, or $46 per 40-hour week. It was stipulated that Mary Elizabeth’s life expectancy was 36.41 years. The award of $20,-000 may have been liberal, but it does not strike us at first blush, or even upon further cogitation, as excessive.

Defendants objected to the reading of the deposition of Richard Price, a vital witness who was not present in person at the trial. CR 26.04(3) authorizes the use of a deposition “if the court finds” that the witness is absent from the state. It is our opinion that the trial court should be allowed a reasonable discretion in determining whether the condition has been met. A subpoena for the witness Price to appear at the'trial on December 6, 1960, had been issued on November 30, 1960, and returned “not found” on December 1, 1960. Counsel for plaintiff stated to the court that he had received a collect long distance call from Florida the night before the trial and recognized Price’s voice talking to the operator, though he did not accept the call. If counsel had put this information in the form of an affidavit, we think it would be most unreasonable to say it could not have supported a finding by the trial court that the witness was out of the state. Had counsel for appellant demanded an affidavit, no doubt it would have been provided. We do not accept the strict rule represented by some of the authorities cited on this question by appellant. We sustain the trial court’s discretion.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Ward FIELDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 24, 1963.
    As Modified on Denial of Rehearing June 28, 1963.

      Louis V. Mangrum, Mayfield, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Ward Fields, was convicted of knowingly receiving stolen property (KRS 433.290) and sentenced to two years’ confinement in the penitentiary. He states the following grounds for reversal: (1) It was error to admit evidence obtained in unreasonable search and seizure of his property. (2) The trial court erred in admitting certain evidence. (3) The competent evidence admitted was not sufficient to sustain a verdict of guilty. (4) Certain remarks made by the court during the trial were prejudicial. (5) The argument of the> Commonwealth’s attorney was improper. (6) The instructions were erroneous.

The sheriff of Graves County, a deputy and two investigators of the Alcoholic Beverage Control Department searched the premises of appellant, Ward Fields. The search warrant is not in the record, but the affidavit upon which it was issued, is. It is stated that the affiant had purchased one half pint of whiskey from Ward Fields at his residence. It is further stated that beyond a reasonable doubt appellant now has alcoholic beverages in his possession for the purpose of sale in local option territory. The Commonwealth concedes that the search warrant was issued for the purpose of searching for and seizing alcoholic beverages which were being held on the premises for resale in local option territory. The ABC men testified that they had come for the sole purpose of searching for illicit beverages. The sheriff testified that they had knowledge of recent break-ins in the community when tires and cigarettes, among other items, had been stolen. During the search the liquor was found. The officers also found two automobile tires, about a hundred and ninety-seven packages of various brands of cigarettes, several shotguns and some shotgun shells. At the trial the tires were positively identified by serial numbers by the owner of the store from which they had been stolen. The defendant, who testified on his own behalf, gave an unsatisfactory explanation of how the items had come into his possession. He stated that he had purchased the tires from a man whom he could not identify and that he bought the shotgun shells and the cigarettes from another man whom he did not know.

The question of whether the search in this case was an unreasonable one offers some perplexity because the courts are not uniform in their conclusions. In one of the leading cases on this subject, Harris v. United States, 151 F.2d 837, 169 A.L.R. 1413, it was said:

“While a search in violation of the constitution is not made lawful by what it brings to light, Byars v. United States, 273 U.S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520 neither is a search which is valid in its inception made unlawful merely because it uncovers evidence of a crime not contemplated by such search. Gouled v. United States, 255 U.S. 298, 311, 312, 41 S.Ct. 261, 65 L.Ed. 647; Matthews v. Correa, supra [2 Cir., 135 F.2d 534]; Shelton v. United States, 7 Cir, 50 F.2d 405; United States v. Kirschenblatt, supra [2 Cir., 16 F.2d 202, 51 A.L.R. 416]; United States v. Charles, D.C., 8 F.2d 302; Milam v. United States, 4 Cir, 296 F. 629. ‘The important thing is that the search which turns up the offense must itself have been legal.’ ”

It appears that in most cases, before un-described property may be seized, the article itself must be in the nature of contraband, such as burglary tools, devices which may be used only for illegal gambling, counterfeiting equipment, et cetera. In Cofer v. State, 152 Miss. 761, 118 So. 613, where a search warrant was issued commanding the search of a person’s dwelling for contraband liquor and the officers also seized shotgun shells found on the premises, the court held that such seizure was unreasonable because the possession of such shells was not illegal per se. The same court, however, in a later case (Williams v. State, 216 Miss. 158, 61 So.2d 793) said:

“In the instant case, the officers were lawfully upon the premises. They found the stolen property, the possession of which was illegal and the equivalent of ‘contraband’ or of a contraband nature. They seized the property unlawfully in appellant’s possession. The seizure was an incident of a lawful search, during which the officers found the stolen property. See 9 Words and Phrases, p. 206, and Pocket Parts, p. 66, and 17 C.J.S., pp. 288-289 (defining ‘contraband’). Where entry upon the premises is lawful, as was the one here, contraband open to observation may be seized. 79 C.J.S., Searches and Seizures, § 17, states that ‘Among those articles the possession of which has been declared to be illegal per se, and the seizure of which is not within the constitutional guaranty, are * * * stolen property * * *.’ State v. Hawkins, Mo.Sup.1951, 240 S.W.2d 688; Patterson v. Commonwealth, 1933, 252 Ky. 285, 66 S.W.2d 513.”

In Pigg v. Commonwealth, Ky., 284 S.W.2d 670, where appellant had appealed from a judgment convicting him of possessing liquor for sale in dry territory, the facts were, as follows: The liquor was discovered by an income tax investigator of the Kentucky Department of Revenue while he was in the process of searching Pigg’s home, with his consent, for evidence of income tax evasion, such as concealed assets. It was contended that there was no consent given to search for intoxicating liquors and therefore the search was illegal and the evidence obtained by the search was inadmissible. It was concluded that the search was legal and the evidence was admissible. The court overruled the case, Veal v. Commonwealth, 199 Ky. 637, 251 S.W. 648, where a contrary view, under similar facts, was expressed.

While in the foregoing case the officer did not enter the residence under a search warrant, it was permissive and therefore legal and the contraband which was found was admitted in evidence. We believe the same theory applies to the instant case and the evidence obtained was admissible. The possession of stolen goods in itself presents a prima facie case of guilt. KRS 433.290.

On the trial of the case, Mr. Dublin from whom the tires found at appellant’s residence were alleged to have been stolen identified the tires by serial numbers and was permitted to testify that he obtained the numbers from the invoices of the company in Tennessee which had sold them to him. Appellant contends that the original invoices should have been produced. This same question was raised in Bower v. Commonwealth, Ky., 357 S.W.2d 333 and it was decided that upon a collateral issue, such as we have here, the best evidence rule does not require that the record be produced. The question is fully discussed in that opinion and will not be repeated here.

Appellant’s argument that the evidence was not sufficient to sustain the verdict of guilty is largely based upon the supposition that the evidence as to the serial numbers should have been excluded. However, we have examined the transcript of evidence carefully and are convinced that the evidence introduced was sufficient to sustain the conviction.

During the opening statement in behalf of the Commonwealth, this occurred:

“The Sheriff, as I said, accompanied them. When they made the search they found a large quantity of whiskey.
“BY MR. MANGRUM: Your Hon- or, we object to this; it’s irrelevant to this case.
“BY THE COURT: Do what?
“BY MR. MANGRUM: We object because that’s irrelevant to this case.
“BY THE COURT: Irrelevant?
“BY MR. MANGRUM: That’s right.
“BY THE COURT: I don’t think so.
“BY MR. MANGRUM: This case doesn’t involve whiskey in any way.
“BY THE COURT: You ought to he Circuit Judge; you know all these things. Overruled. Go ahead.”

Although we believe the personal observation about counsel made by the court was inappropriate and unnecessary, we are of opinion that, under the circumstances, it was not prejudicial.

Appellant also contends that the Commonwealth’s attorney’s closing argument was improper because in three respects it was not based upon the evidence in the case, and expressed a personal opinion of guilt. We have carefully examined these remarks and find the first was proper argument, the second was meaningless, and the third (expressing personal conviction) could not have been prejudicial to appellant’s substantial rights.

Appellant finally complains that the instructions were erroneous, but has pointed out to us no specific instance where they were incorrect and we have discovered none.

The judgment is affirmed.


author: .-MOREMEN, 'Judge.

text:
    Oran Ray DAVENPORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 3, 1963.
    Rehearing Denied June 28, 1963.

      Joseph C. Healy, Covington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   .-MOREMEN, 'Judge.

On April 18, 1962, a Justice of Peace of Fayette County issued a warrant charging Oran Davenport with having committed the offense of grand larceny. Davenport was arrested under the warrant and tried in the Lexington Police Court on April 23, 1962. He was found guilty on the amended charge of violation of a City Ordinance Section 14 — 11.1. We do not have a copy of the Ordinance, but it was designated in the judgment as dealing with the offense of “Tampering with coin equipment.” Davenport was found guilty and sentenced to confinement in the county jail for 90 days. On the same day he appealed the case to the Fayette Circuit Court.

The record before us does not disclose that any step was taken in the case from the 23rd day of April 1962, when the appeal and supersedeas bond were executed in the circuit court, until July 2, 1962, when a judgment was entered which recited in substance that appellant did not appear, a jury was impaneled, a trial had and verdict returned finding the appellant guilty and fixing his punishment at twelve months in the county jail and a fine of $100.

On July 9, 1962, defendant filed a motion to vacate and set aside the verdict of the jury on the ground that appellant was tried in his absence without notice to him, his counsel or the surety on the appeal bond. Later counsel filed two amended motions and affidavits in which he alleged the additional grounds (1) that the appeal should have been prosecuted by the city prosecutor instead of by the commonwealth’s attorney as provided by KRS 69.460; (2) that Sec. 184 of the Criminal Code of Practice provides that one “may be tried in his absence, provided that the defendant is under indictment for misdemeanor” and since defendant was never under indictment, it was error to try him in his absence.

The Hon. Paul H. Mansfield, commonwealth’s attorney, filed a counter-affidavit which reads in part as follows:

“Affiant further states that the appeal was taken by the defendant in this case from a judgment in Police Court on April 24th, 1962, and that the docket for the trial of criminal cases was set for some three (3) weeks prior to June 18th, 1962, on which date the term began, and at the time the said docket was set this case was assigned for trial on July 2nd, 1962; that at the time the docket was set all cases were published in the newspaper and since the defendant took the appeal to the Circuit Court himself it was incumbent upon him to find out when his case would be tried as there is no duty imposed upon the Court, the Clerk, or the Commonwealth’s Attorney to advise the defendant when his case would be tried.”

The foregoing statement of fact in the affidavit was not denied.

On September 12, 1962, appellant’s motion for a new trial was overruled and appellant has prosecuted this appeal from that order. In addition to the grounds set forth in his amended motion, on this appeal appellant further contends that he was denied due process of law in contravention of the 6th and 14th amendments of the United States Constitution and Section 11 of the Kentucky Constitution.

KRS 69.460 reads in part:

“In cities of the second class, except those operating under the commission or city manager form of government, the mayor shall appoint a city solicitor, who shall be a regular practicing attorney. The city solicitor shall, in person or by his assistant, or by the city attorney, appear for the city and attend to all cases in the circuit court and Court of Appeals wherein the city is a party in interest. * * * ”

We note at the outset that the city of Lexington operates under the commission, city manager form of government. In any event, prejudicial error is not apparent when the commonwealth’s attorney prosecutes a case involving an offense against the commonwealth. He too is charged with the duty to prosecute all violations of criminal and penal laws within his district. KRS 69.010.

The prosecuting attorney of a city of the third or fourth class (KRS 69.520 and KRS 69.570) is required to prosecute an appeal where there has been a violation of a city ordinance, but we find no.such provision in a city of the second class. The defendant is not in a position to allege error in the proceeding when either one of two officers charged with the duty of prosecuting a criminal action does in fact perform the work.

Section 184 of the Criminal Code of Practice reads:

“If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; or, if present, he may remain on bail during the trial.”

Appellant argues that since appellant was arrested under a warrant and the trial was had on an appeal from a conviction in the police court and he was never indicted by a grand jury of the circuit court, the court erred in trying him in his absence.

In Williams v. Commonwealth, 307 Ky. 37, 209 S.W.2d 477, the court said:

“Therefore, when appellant prosecuted his appeal to the Casey circuit court his case occupied the same status as if the charge against him had been preferred by an indictment returned in that court, all of which is discussed in the case of Kidd v. Commonwealth of Kentucky, 255 Ky. 498, 74 S.W.2d 944.” See also Threlkeld v. Commonwealth, 167 Ky. 615, 181 S.W. 175.

The final argument made by appellant — - that his constitutional rights have been violated — offers more difficulty in solution. Section 11 of the Kentucky Constitution reads in part:

“In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.”

It will be noted that the above section does not limit the rights given to prosecutions in felony cases. It is Section 184 of the Criminal Code which denies those rights to one who is being tried for misdemeanor. This differentiation in the application of the constitutional section between felonies and misdemeanors has many times been upheld by opinions of this court. The reasons assigned are well stated in Yates v. Commonwealth, 215 Ky. 725, 286 S.W. 1046, where it is said:

“Construing the Constitution and the Code together, it has been held uniformly in misdemeanor cases that the Constitution does not make it necessary for the accused to be present and hear the witnesses testify. All that it does is to guarantee his right to be present, if he so desires. Hence, if he be afforded an opportunity to be present and fails to appear, or voluntarily absents himself after the trial has begun, he waives his right to meet the witnesses face to face, and the trial may proceed in his absence. Truitt v. Commonwealth, 177 Ky. 397, 197 S.W. 797. Long v. Commonwealth, 177 Ky. 391, 197 S.W. 843; Talbott v. Commonwealth, 207 Ky. 749, 270 S.W. 32.”

In other words, the constitutional requirements may be waived in misdemeanor cases by absence from trial, but not in felony cases. The reason for this distinction is difficult to ascertain because the line of distinction between a felony and a misdemeanor in this state depends upon the amount of punishment that is prescribed for a public offense. KRS 431.060 states that offenses are either felonies or misdemeanors. Offenses punishable with death or by confinement in the penitentiary are felonies. The other offenses, whether at common law or made so by statute, are misdemeanors. The wording of Section 5, 6 and 7 of the Criminal Code is almost identical to that employed by the statute.

In the case at bar appellant was sentenced to a year in jail which is just as severe, or perhaps more severe, than a short sentence in the penitentiary. Nevertheless, the rule is so firmly imbedded in law that it has been carried over in Rule 8.28, subsection (3) of the new rules of criminal procedure where it is stated: “In prosecutions for misdemeanors, the court may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence.” This section is purportedly an adaptation of Federal Criminal Rule 43, which reads in part: “In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence.” It will be noted that there, the defendant must consent before he is tried in his absence.

Nevertheless, appellant and his counsel had no right to rely upon the chance that some officer of the court or of the circuit clerk’s office would notify them that the case was set for trial. It was their duty to examine the docket and determine the day of trial. Scott v. Commonwealth, 219 Ky. 55, 292 S.W. 482.

It was emphasized in Threlkeld v. Commonwealth, 167 Ky. 615, 181 S.W. 175, and Veal v. Commonwealth, 162 Ky. 250, 172 S.W. 501, that a defendant in a misdemeanor case may be tried in his absence where his failure to appear is his own voluntary act and does not arise from a denial of that right. In the case at bar, appellant was unrestrained by any outside influence. He voluntarily refrained from any attempt to learn when his case was set for trial. He was not denied the right to appear, nor was he misled or coerced into absence. His dereliction in his duty to examine the docket was voluntary.

The circuit court properly overruled the motion to set aside the verdict and judgment.

Judgment affirmed.


text:
    William McINTOSH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 24, 1963.

      Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    John B. Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, William McIntosh, was convicted by the Madison Circuit Court in 1958 as a habitual criminal and was sentenced to life imprisonment. KRS 431.190 (third felony). In 1962 he moved that court to set aside the judgment pursuant to CR 60.02. After a hearing at which he was represented by counsel the court entered findings of fact, conclusions of law and a judgment overruling the motion. This appeal followed.

The alleged grounds for relief, in the order in which we shall discuss them, were that (1) the indictment was invalid, (2) appellant was tried without benefit of the psychiatric report required by KRS 203.340, (3) sentence was pronounced and the judgment of conviction was entered out of term, (4) appellant was deprived of the assistance of counsel at the time of sentencing, and (5) appellant, an indigent, was deprived of the assistance of counsel to take an appeal. It is contended that each of these claimed irregularities was such as to render the judgment void upon one or more theories of state and federal constitutional infringement.

1. The grand jurors impaneled at the May term (1958) of the Madison Circuit Court had served and been paid for one day prior to May 26, 1958, on which date an order was entered directing them to reconvene on May 27, 1958, for the handling of further business. The clerk’s recollection was that they had been excused after completion in one day of all the business before the grand jury, but there was no record of a formal discharge from further service. On May 27, 1958, the grand jury reconvened and, two of its number being unable to serve, two replacement jurors were impaneled as permitted by KRS 29.215. Later in the same day several indictments, including the one now in question, were returned and the grand jury was discharged by an order duly entered of record.

KRS 29.245(1) provides that the grand jury may remain in session six days at any term of court and that its session may be extended up to nine additional days. As a court must speak through its records, it is our view that the grand jury for the May, 1958 term of the Madison Circuit Court had not been discharged prior to May 27, But even if it had, as it had not held sessions in excess of the time authorized by KRS 29.245(1) the court was authorized to call it back at any time before expiration of the term. There is no good reason to construe the statute as meaning that there can be no extension after a discharge. In this respect the discharge of a grand jury before the end of the term is merely tentative. So, the indictment was proper.

2. Appellant was tried before a jury on October 13, 1958, the court having overruled a motion for continuance on the ground that the psychiatric examination required by KRS 203.340 had not been made. On October 16, 1958, Dr. R. H. Hayes, district psychiatrist for the Department of Mental Health, visited him at the Madison County jail, and on the basis of this interview sent to the trial judge a letter under date of October 31, 1958, reporting as follows:

“I examined Mr. William McIntosh on October 16, 1958, and at that time found no evidence of insanity in him. At that time he knew right from wrong, and was considered by me at that time to be capable of acting upon this information.

“In view of the fact that he was discharged from the Armed Services on 4 July 1944 with a certificate of disability discharge, Paragraph 11, I would feel that more information was needed before I could give you a complete report on this man, as there is no question of medical disability. I have written on October 24, 1958 to the Veterans Administration for information regarding this man’s discharge and have not received any information from them as of this date. Whether or not their report would influence my decision as to his present condition I am not sure. However, I do consider him capable of being responsible for his present conduct and actions.”

Following the trial and verdict of guilty appellant filed motion and grounds for new trial. The record shows that the trial court, knowing of the psychiatrist’s visit, delayed ruling on this motion until receipt of the psychiatrist’s report on or about November 4, 1958, on which date the motion was overruled, a judgment of conviction was entered, and appellant was sentenced accordingly.

Despite the mandatory terminology of KRS 203.340, this court has held that non-compliance does not void the judgment. Mercer v. Commonwealth, Ky.1961, 346 S.W.2d 761. Nevertheless, if the defendant is indigent, as he was in this case, and KRS 203.340 affords the only real avenue by which he can have the benefit of a psychiatric examination, we recognize that a denial of it might well raise a question under the Equal Protection Clause of the 14th Amendment. But when the defendant does receive the examination before final judgment is entered, and it reveals nothing that could have been of any consequence to his trial or defense, we think there has been a substantial compliance with the statute. Cf. Harrod v. Commonwealth, 1950, 311 Ky. 810, 226 S.W.2d 4.

In deferring action on the motion for new trial the court tacitly recognized that if the report should suggest any basis for an insanity defense, or indicate that the appellant had been mentally incapable of standing trial, the motion would have to be sustained. As it happened, however, the report made it abundantly clear that its availability prior to or at the time of the trial would have been of no benefit whatever in appellant’s defense. Hence there has been no violation of his rights.

3. At the time the psychiatrist’s report was received the October 1958 term of the Madison Circuit Court had expired. November 4, 1958, the day on which the order overruling the motion for new trial and the judgment were entered, was out of term. However, KRS 23.150 specifically authorized the court “to make or direct in vacation or term time at his chambers, at the circuit clerk’s office or at any other place in any county in the district, any order, rule, or judgment in any proceeding on the criminal docket, upon reasonable notice to the parties, except where trial by jury is called for or ordered by the court.” We find no error in this respect.

4. Sections 285 and 286 of the Code of Criminal Practice, which were in force in 1958, required that a defendant found guilty of a felony be brought into court, informed of the nature of the indictment, his plea and the verdict thereon, and asked if he had any legal cause to show why judgment should not be rendered against him; and that judgment be rendered in his presence. In this case it appears that all of these things were done, albeit since court was not in session the ceremony took place in the office of the circuit court clerk, which we do not consider to have been improper. However, neither of appellant’s assigned counsel, who had represented him ably in the preparation and conduct of his trial and the preservation of his rights by motion and grounds for new trial, was present on this occasion. Whether their presence was requested by appellant is not disclosed by the record.

The right to counsel in criminal prosecutions in this state is secured by Const. § 11. It is guaranteed also by the Due Process Clause of the 14th Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The defendant must not be denied a reasonable opportunity to have counsel “at every step in the progress of the trial.” Temple v. Commonwealth, 1879, 77 Ky. (14 Bush) 769, 29 Am.Rep. 442; Wilcher v. Commonwealth, 1944, 297 Ky. 36, 178 S.W.2d 949; Carver v. Commonwealth, Ky.1953, 256 S.W.2d 375, 49 A.L.R.2d 616; Powell v. Commonwealth, Ky.1961, 346 S.W.2d 731. In Wilcher, Carver and Powell it was held directly that the return of the verdict by the jury is a vital step at which the defendant is constitutionally entitled to have counsel present. Whether the same right exists at the pronouncement of judgment by the court seems not to have been determined in this state, though it has been variously decided in other jurisdictions.

Kentucky is one of the few states in which the degree of punishment is required to be fixed (within statutory limits) by the jury rather than the court, and this, we think, is the most significant single circumstance bearing on the question of what fundamental fairness demands at the stage of formal sentencing. When the court has no discretion with respect to assessing punishment, the allocution and pronouncement of sentence are more ceremony than substance. In this state “it is a common practice to enter the judgment on the order book and later to have the defendant brought into court and sentenced formally.” Lovelace v. Commonwealth, 1941, 285 Ky. 326, 147 S.W.2d 1029, 1033. The substance is what goes in the book. It is not necessary even that the defendant himself be present for that. If there are any reasons why judgment should not be rendered in accordance with the verdict, other than mental incapacity that has intervened in the interim, the defendant has had ample opportunity to present them by motion for new trial or for probation. We hold that the allocution and formal pronouncement of sentence in the defendant’s presence were not constitutional rights, but statutory procedures only. From a constitutional standpoint, it was sufficient that he had due and timely notice of the entry and import of the judgment and a reasonable opportunity to question it by appropriate motion.

The conclusion to be drawn from what we have said in this respect is that if the appellant was prejudiced by the manner in which the sentence was adjudged and pronounced, the judgment at most was erroneous, and a motion under CR 60.02, supported by a showing of substantial grounds for relief, was the proper remedial approach. If, therefore, appellant had a good and sufficient cause (for example, that there was reasonable ground for believing that he was then insane, cf. Criminal Code of Practice, § 287) to forestall the judgment in 1958 and was unable to present it because he did not have the assistance of counsel, it was incumbent on him to show it in this proceeding. He has not done so.

5. We come now to the final and most nettlesome problem in the case. Appellate review, as such, in criminal cases is not a constitutional right. Rutherford v. Commonwealth, 1880, 78 Ky. 639, 1 K.L.R. 410; Miller v. Commonwealth, 1907, 127 Ky. 387, 105 S.W. 899, 32 K.L.R. 249. But when a statute authorizes an original appeal as a matter of right, the Equal Protection Clause of the 14th Amendment guarantees an indigent defendant the assistance of counsel in prosecuting it. Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

Though a motion to vacate or set aside certainly could not be an appropriate remedy for an unconstitutional denial of the right of appeal from the judgment, since the question is of first impression in our jurisdiction we shall nevertheless treat this appeal as tantamount to an application under Const. § 110 for appropriate relief.

As heretofore mentioned, appellant had able assistance by court-appointed counsel in the preparation and trial of his case. They followed through with a motion for new trial, and we are given no reason to believe from this record that they would not have prosecuted his appeal had he requested them to do so. At no time did he suggest to the trial court, which had provided their services to him, that they had withdrawn. Though it was held in Gholson v. Commonwealth, 1948, 308 Ky. 82, 212 S.W.2d 537, that the mere failure of the defendant to ask for counsel could not be regarded as a waiver of the right, that was at the trial stage, where the defendant had no attorney in the first place. Here the appellant had capable counsel. It was not incumbent on the trial court to wait on him at the county jail lest some need arise that might not otherwise be called to its attention.

The trial court accorded to appellant the right to come to Richmond and to be present and testify in support of the application for relief which is the subject of this discussion. Both of the attorneys who represented him in 1958 reside and practice law in that community, and their testimony was readily available had he desired it. The order overruling his motion for new trial on November 4, 1958, shows that appellant, at his request, was given to and including February 20, 1959, in which to prepare and file a bill of exceptions and transcript of evidence and was directed to be kept in the Madison County jail unless and until failure to perfect an appeal. His testimony in support of the motion now before us contains no suggestion that during the time he remained in the jail at Richmond he made any attempt to send word to the trial judge apprising him of a need for counsel.

The right of counsel on appeal stands on a different footing, not only constitutionally but as a practical matter, from the right to counsel during earlier stages of a criminal proceeding. An appeal is not a prerequisite to the execution of a sentence, whereas the proceedings leading up to and including a judgment are. The right to a fair trial is primary and fundamental. A right of review is secondary, and exists only as an added safeguard against denial of the primary right. The obligation of the state to see that the defendant receives a fair trial is absolute; to provide him an appellate review is optional. That due process compels the court affirmatively to advise a defendant of his right to counsel at the trial stage does not lead to a conclusion that he must also be thus advised at the appellate stage. “Equal protection” gives to the indigent defendant a right to counsel and to a transcript of the record on appeal if he requests it. In the absence of such a request it does not, in our opinion, oblige the court either to initiate an inquiry or to extend an invitation to appeal.

As the record shows no proof to sustain a finding that appellant was denied the right of counsel to assist him in prosecuting an appeal from the judgment entered on November 4, 1958, he is not entitled to relief in this proceeding.

The judgment from which this appeal was taken is affirmed.

      . They are now superseded by RCr 11.02.

      . See Annotation, Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief, 20 A.L.R.2d 1240.

      . Criminal Code of Practice, § 258, now RCr 9.84. With various exceptions, Arkansas, Indiana, Missouri, Montana, Oklahoma, Tennessee, Texas and Virginia also provide that where the case is tried by a jury, the jury may or must assess the punishment, though in Indiana and Tennessee most verdicts apparently are subject to the provisions of indeterminate sentence statutes. See §§ 43-2145, 43-2306, Arkansas Statutes; §§ 9-1819, 9-1820, 9-1821, Annotated Indiana Statutes; §§ 546.410, 546.430, Missouri Revised Statutes; §§ 94-7411, 94-7412, Revised Code of Montana; Title 22, §§ 926, 927, Oklahoma Statutes; § 40-2707, Tennessee Code Annotated; Art. 693, Vernon’s Texas Code of Criminal Procedure; and § 19.1-291, Code of Virginia.

      . The latter would not have been applicable in this instance, since a life sentence cannot be probated. KRS 439.260.

      . Parsley v. Commonwealth, Ky.1954, 272 S.W.2d 326, is distinguishable because it involved a plea of guilty and the quantum of punishment lay in the discretion of the court, per Criminal Code of Practice, § 258.

      . Cf. Harris v. Commonwealth, Ky.1956, 296 S.W.2d 700.

      . As Criminal Code of Practice § 334 did in this case. See present KRS 21.-140(1).

      . The denial of counsel would, of course, amount to a frustration of the right of appeal itself.

      . Since appellant now has counsel, there is no occasion for mandamus to compel the appointment of an attorney. His time for appeal having expired, the inherent power of this court under Const. § 110 probably represents the only authority by which he might now secure the equivalent of an original review on the merits.

      . As we have no statute covering appointment of counsel, there are no definite lines of demarcation establishing at what stage the indigent defendant’s entitlement arises and at what point assigned counsel’s duties pursuant to the appointment end.

      . Equal protection vis-a-vis due process.


text:
    Elizabeth WHITEHEAD, Appellant, v. Helen Garvin DONNELLY et al., Appellees.
    Court of Appeals of Kentucky.
    May 3, 1963.
    Rehearing Denied June 28, 1963.
    Duncan & Allender, Bowling Green, for appellant.
    Coleman, Harlin & Orendorf, Marshall Funk, Bowling Green, for appellees.
   CLAY, Commissioner.

The construction of a provision of a holographic will is sought in this declaratory judgment action. The controversy is between the named residuary legatees and the heirs of the testatrix. The Chancellor adjudged the legatees «took the property in fee simple.

The will of the testatrix, after disposing of a tract of real estate and certain corporate stocks, provided:

“3. The residue of my estate, real, personal & mixed to Louise Sledge and Helen Garvin Donnelly to distribute as I have directed. No bond required. Louise Hackney Executor.” (Our emphasis)

In addition to the will the testatrix had written a codicil disposing of seven items of personal jewelry and her papers included various memoranda pertaining to many items of her property. The Chancellor correctly decided that the memoranda could not be properly considered as a part of the will or as binding instructions governing the disposition of the testatrix’s estate. The court held the above italicized language was to be given effect only with respect to the distribution of items specifically referred to in the will and codicil and that the legatees took the rest of the testatrix’s property in fee simple.

The interpretation by the trial court of the words “to distribute as directed" is strained indeed. The residue left to Louise Sledge and Helen Garvin Donnelly consists of the testatrix’s property remaining after the specific bequests have been distributed. Since the executor has the obligation to attend to this distribution, there could be no possible reason to impose that duty on the two legatees. This construction of the words is not permissible.

The legatees contend those words relate to items of property referred to in the various memoranda. This argument is not tenable for two reasons: (1) the Chancellor properly decided the memoranda could not be considered as instructions relating to the disposition of the estate, and (2) since the testatrix apparently assumed she had disposed of the items mentioned in the memoranda, she could not have contemplated those items as part of the “residue”.

The only difficulty in this case is encountered when a court, under the guise of construing language which fails to create an estate, undertakes to write a will for the testatrix. The court is asked to distribute her property in an equitable manner because she failed to make clear her intent. The proof introduced, to the effect that the testatrix would be more inclined to give her property to the two legatees than to her heirs, was obviously directed to this end. If the testamentary distribution of property is to be determined by what the testatrix may possibly have hoped to do or what we think in fairness she should have done, then the requirement that a will be in writing is an unnecessary formality.

The law gives a person a right to dispose of his property by will. Unless that writing expresses the testator’s intent with sufficient clarity to enable the court to find the intent therein and to enforce its provisions, he has simply failed to dispose of his property by will. Futrell v. Futrell’s Executor, 224 Ky. 814, 7 S.W.2d 232; Winn v. William, 292 Ky. 44, 165 S.W.2d 961; Johnson v. Johnson, 312 Ky. 773, 229 S.W.2d 743.

Let us again note the provision of the will in controversy:

“3. The residue of my estate, real, personal & mixed to Louise Sledge and Helen Garvin Donnelly to distribute as I have directed. * *

In the preceding parts of her will the testatrix had made outright devises and bequests to other persons. In the codicil she made outright bequests to these two named beneficiaries. It is thus apparent she knew perfectly well how to make an absolute devise or bequest to a named beneficiary.

Item 3 is in an entirely different category. On its face it is a conditional bequest. An integral restriction is attached. The residue was left to the legatees for the purpose of carrying out some plan the testatrix had in mind. The language diametrically opposes the vesting of a fee simple title in them.

The wording purports to create a trust. Appellees contend the testatrix did not know what a trust was and did not intend one because she did not use the word “trust”. In Arnold v. Clay, 262 Ky. 336, 90 S.W.2d 55, the testatrix left property to her brother “to do with as we have privately agreed”. It was held the testatrix (though not using the word “trust”) had restricted the beneficiary’s use and distribution of the property, and had thereby created a trust. The trust failed because no beneficiaries were designated but the devisee did not take a fee. See also Reynolds v. Reynolds, 224 N.Y. 429, 121 N.E. 61, wherein the language was quite similar to that before us, and the same decision was reached.

The construction of this language is not controlled by the label we may place on the estate the testatrix attempted to create. The ultimate question is whether the testatrix bequeathed the residue of her estate to the named persons absolutely. As pointed out in the Arnold case above cited, the language she used positively excludes this interpretation. The property was to pass through them, not to them. Since the testatrix failed to use language by which we could give legal effect to her plan, she simply failed to make a testamentary disposition. The bequest fails for indefiniteness and uncertainty, and under those circumstances the named legatees do not take the fee. McKee v. Hedges, Ky., 297 S.W.2d 45. The residue of the property must pass to the heirs at law of the testatrix as in cases of intestacy.

The judgment is reversed, with directions to enter a judgment consistent with this opinion.


author: K. S. ALCORN, Special Commissioner.

text:
    Raymond C. BARTH et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST COMPANY, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Rehearing Denied June 28, 1963.

      William S. Kammerer, Louisville, for appellants.
    Bullitt, Dawson & Tarrant, M. Brooks Senn, Burwell K. Marshall, Anthony R. Hellmann, Allen P. Dodd, Jr., E. Skiles Jones, John A. Fulton, Louisville, and Joseph McDaniels, New Albany, Ind., for ap-pellees.
   K. S. ALCORN, Special Commissioner.

Citizens Fidelity Bank & Trust Company, individually and as co-trustee under the will of Louise E. Meyer, brought this suit for construction of Item III of that will, with reference to the nature of the estate devised George F. Barth. That Item disposes of the residuary estate, and is as follows:

“ITEM III. All the remainder of my property, of every nature, kind or description, wherever located or situated, I give, devise and bequeath in Fee-Simple to my beloved nephews and nieces; namely, DOROTHY M. BARTH, LOUISE M. BARTH, ANNA A. BARTH, WILLIAM E. BARTH, JR, HERBERT E. BARTH, GEORGE F. BARTH, and RAYMOND C. BARTH, share and share alike; provided, however, should any one or more of them predecease me, leaving children, said child or children shall inherit their parents share, and provided further, the part devised to my nephew, GEORGE F. BARTH, I give, devise and bequeath to the Fidelity and Columbia Trust Company, Louisville, Kentucky, and to William E. Barth, Jr., to be jointly held in trust by them for the exclusive use and benefit of the said George F. Barth, they to pay to him when and as collected, the income therefrom, with the right in said trustees to encroach upon the principal thereof to the extent that his needs in their judgment, makes it necessary. Said trustees, or their successors, shall have full power and authority to sell all or any part of his said estate, including real estate for reinvestment purposes, or said trustees may use such part of the proceeds of said sale or sales for his maintenance and support as the exigencies of the case may demand, the purchaser in no event having to look to the application of the purchase price. The co-trustee, William E. Barth, Jr., shall have the right to name his successor in his will.”

Testatrix died in 1944. George F. Barth, one of the residuary devisees, died in 1959, testate, and his will was duly probated in the Jefferson County Court in February, 1959. He made disposition of all of his property, specifically including that devised him by Louise Meyer. He left to his brother, Raymond C. Barth, one of the other residuary devisees under the will of Louise Meyer, $100.00. Citizens Fidelity Bank and Trust Company, as executor of the George F. Barth will joins in this suit, asking for its construction, alleging that Raymond C. Barth was claiming George F. Barth had no right to dispose of the estate devised him by Louise Meyer. All the residuary beneficiaries of the Louise Meyer will, with the exception of Raymond C. Barth, joined with the trustee in seeking the construction of Item III.

The answer of Raymond alleges that George Barth was always mentally incompetent, that Louise Meyer knew that was his condition, and incapable of making a will, and that she intended and provided by her will that at George’s death, the trust estate would pass absolutely to his heir at law, and thus to Raymond, as sole heir of George. And it denies the probate of the George Barth will, for the reason, as alleged, its probate was contested by Raymond in the county court “and the contest will continue by appeal to the Jefferson Circuit Court.”

The court having ruled that parol evidence was not admissible, the case was submitted upon the record for summary judgment, and it was adjudged that George F. Barth took under the Louise Meyer will the fee simple title to the estate held in trust under Item III by the trustees during his life time, subject only to the limitations as to trust contained in the will, and nothing in that will serves to prevent his devising the fee simple title therein. From that judgment Raymond Barth and wife appeal. The court adjudged the costs of the action to be proper charges against the corpus of the trust estate, and from that part of the judgment plaintiffs cross-appeal.

The opening sentence of this devise, in Item III, is expressly a devise in fee to each of the devisees, share and share alike. Thus is declared the purpose to give to each of them not only an equal part, so far as quantity of estate is concerned, but also the same quality of estate. Testatrix was at pains to make provision as to what disposition should be made should any of the devisees die before her own death, leaving children. In this and other respects the will bears evidence of thoughtful preparation on her part, and affords no justification for concluding that in creating the trust she overlooked making provision for the disposition of this trust estate upon the death of George Barth. Having emphatically stated that the devise to him was in fee simple, there was no reason for her to make any such provision. And in construing this devise it must be kept in mind that the law favors a construction that will dispose of the entire estate, and that it is presumed that a testator did not intend to die intestate as to part of his estate. Shaver v. Weddington, 247 Ky. 248, 56 S.W.2d 980; Thomas’ Adm’r. v. Thomas, 220 Ky. 101, 294 S.W. 776; Powers v. Burke, 194 Ky. 796, 241 S.W. 53.

That the estate devised George F. Barth was subj ect to the trust, is not inconsistent with its being devised to him in fee simple. Radford v. Fidelity & Columbia Trust Co., 185 Ky. 453, 215 S.W. 285; Drye v. Cunningham, Medley & Co., 24 Ky.Law Rep. 2500, 74 S.W. 272; Webster’s Trustee v. Webster, 93 Ky. 632, 21 S.W. 332, all cited and relied upon in the brief for appellees. In each of these it was adjudged that, there being no limitation upon the estate devised, and no devise over the fact it was placed in the hands of a trustee did not change the character of the devise as being in fee. As tersely stated in Drye v. Cunningham, “The creation of the trust did not change the character of the estate devised Mrs. Tucker. It was her property held in trust for her.” Another case in point is Muir’s Ex’rs. v. Howard, 178 Ky. 51, 198 S.W. 551. The devise was as follows :

“ ‘ My farm conveyed to me by my brother, John Muir, near Stringtown, Nelson county, I give to my son, Charles W. Muir. He is to be charged therewith in the settlement of my estate with $10,000.’ ‘Now, the landed estate I give to Charles is to be held in trust by my executors for himself and family with power to sell and convey, should it be thought best by the acting executors. But he is not to sell nor to encumber said land in any way.’ ”

The court construed the devise as being in fee simple, saying:

“Since there was no limitation upon the estate devised to Charles W. Muir and no devise over, it cannot be construed as a life estate simply because the right of alienation was, during the life of Charles W. Muir, placed in trustees, for the very evident and sole purpose of protecting the fee against the improvident and wasteful habits of the devisee, * *

And in the course of the opinion, the court said:

“That the testator did not intend to limit Charles W. Muir’s interest in the land devised to a life estate is, to our minds, satisfactorily proved by the fact that no attempt was made to dispose of the remainder interest in the land.”

The brief for appellants complains of the ruling of the circuit court refusing to permit parol evidence with respect to the intention of testatrix as to the disposition of the estate after the death of George F. Barth, and, also, as to his “mental condition from birth.” It seems to us that the ruling of the court was right. In construing a will, the court must do so from what the testator said in the will. The test in that respect is what he meant by what he said, not what was it his intention to say. Futrell v. Futrell’s Ex’r., 224 Ky. 814, 7 S.W.2d 232; Fidelity & Columbia Trust Co. v. Harkleroad, 224 Ky. 5, 5 S.W.2d 477. Not only so, but here the appellants wished, as we understand their brief, to use parol evidence to show that it was the intention of testatrix to limit his estate to a life estate and to devise the remainder to his heirs at law. The appellant Raymond Barth being his next of kin, therefore, the argument runs, it was her intention that the fee upon the death of George should pass to Raymond. And such evidence would further offend the parol rule, for it is not permissible to use it for the purpose of cutting down or enlarging a devise. Simons v. Bowers, 258 Ky. 755, 81 S.W.2d 604; 95 C.J.S. Wills § 642.

The brief for appellants also complains of the ruling of the chancellor overruling their motions to strike that part of the petition seeking construction of the will of George Barth and, also, the allegations with respect to his dying testate and the disposition he made therein. The court sustained the motion so far as construction of the will of George Barth was concerned, but overruled it otherwise. The motion to strike the allegations that George Barth had died testate, etc., as expressly stated in the motion, is based upon the contention that appellants had contested the probate of the will in the county court and the will would “continue to be contested on appeal to the Jefferson Circuit Court.” The order of the county court probating the will is conclusive as to its testamentary character until determined to the contrary on appeal to the circuit court. Midlow v. Ray’s Adm’x., 302 Ky. 471, 194 S.W.2d 847. George F. Barth’s will was admitted to probate by the Jefferson County Court February 11, 1959. The present suit was filed August 8, 1960. At the time it was filed, no appeal had been prosecuted from the order probating the will. For that matter, so far as disclosed, no appeal had been taken at the time the judgment here was rendered. By KRS 394.250, unless taken within one year from the time the order probating the will was entered, an appeal to the circuit court shall not prevent the appointment of the executor by the county court, or the settlement or distribution of the estate as provided in the will. Therefore, until the order of probate is reversed by the circuit court, the document probated as the will of George F. Barth is his will and must be so considered here, and any motion contending to the contrary is irrelevant, and may properly be disregarded or stricken.

On the cross-appeal appellees complain of the judgment for the costs of this action to be paid out of the corpus of the trust estate. KRS 453.040 provides that generally the successful party shall recover his costs; but by (2) of that section it is provided that in certain actions, including settling the distribution of estates of deceased persons, the court shall exercise a judicial discretion regarding costs. And on appeal the decision of the circuit court in the matter of costs will not be controlled unless the chancellor has abused his discretion. Johnson v. Johnson, Ky., 273 S.W.2d 558. It seems to this panel, in this instance, that the present law suit is one where the judgment as to costs should be revised, in the interest of fairness. If the costs, as adjudged, are payable entirely from the corpus of the trust, that means the estate of George Barth will have to pay the entire costs, and that Raymond Barth, a specific legatee in the amount of $100, will pay no part of it. It is our opinion that Raymond, as unsuccessful party, should bear part of the costs, and that in this instance one-half of the costs should be assessed against him, and the remainder against the corpus of the trust.

For these reasons, it is the opinion of the panel that judgment on the appeal should be affirmed, and reversed on the cross-appeal.

The opinion is approved by the Court and the judgment is affirmed on direct appeal and reversed on cross-appeal.