are not entidled to the dower, the above-named hairs of Anna Seibert and Katharina Leonhard, he shall orderised to distribute the amount to Proestant charetible institutes, according to his judgment.

"In witness whereof, I have hereunto set my hand and seal this day of Ockober, in the year of our Lord one thousand eight hundred and ninthyeight. "JACOB HUMMEL."

The question is, what character of interest did Rosine Hummel take in the devised estate? By the first clause of the will the testator devised his estate in fee simple to her. In addition to the words creating the estate in her, he provides that she and her administrator may agree to sell the property. This power neither added to nor diminished the interest which she took under the first clause. In fact that part of the will which follows the devise to the wife is so unintelligible that we can not say that the testator intended to change the character of the interest which he devised to his wife. This being true, we must hold that the wife took an absolute estate in the property devised, and has the right to sell and convey it. The judgment is affirmned.

RICHARDS, &c. v. COMMONWEALTH.

(Filed April 25, 1902-Not to be reported.)

1. Criminal law-Robbery and conspiracy to rob-Evidence-Testimony of conspirator-This is an appeal from a judgment of conviction for robbery and conspiracy to rob. They complain that after the court had refused to instruct the jury that there was no evidence in the case of conspiracy, the Commonwealth was permitted to prove statements made by S., one of appellants, since the commission of the offense, which tended to implicate him in the alleged robbery, and that the refusal of the court to tell the jury that there was no evidence of a conspiracy was equivalent to a finding that such a conspiracy had been proven to the satisfaction of the court, and that neither of defendants were competent witnesses for or against each other. Held-That section 1647, Kentucky Statutes, and section 223, Criminal Code of Practice, were repealed by the act of March 23, 1894, since which time conspirators may testify for each other. The section of the statute has no application, even if it was not repealed, as it applies only to defendants jointly indicted; besides, there was no error as the court excluded this testimony as affecting R.

2. Instruction-An instruction for grand larceny was properly given, as it is a lower degree of the offense of robbery.

3. Practice-Improper remarks by the court-Remarks by the court in the presence of the jury were prejudicial to one of defendants, but the court properly directed the jury to pay no attention to them.

Thos. E. Moss for appellants.

R. J. Breckinridge and Morrison Breckinridge for appellee.

Appeal from McCracken Circuit Court.

Opinion of the court by Judge Burnam.

The appellants were indicted by the grand jury of the county of McCracken of the offense of robbery and of conspiracy to rob, and were found guilty of grand larceny, and each of them sentenced to the penitentiary for a term of three years. Upon this appeal they complain that the trial court, after re

fusing to instruct the jury that there was no evidence in the case of a conspiracy, permitted the Commonwealth to prove divers statements and admissions made by the appellant, Snow, upon his examining trial, and subsequent to his arrest, which tended to implicate him in the alleged robbery. This objection is based upon section 1647 of the Kentucky Statutes, which provided that "if two or inore persons are jointly indicted, they may testify for each other unless a conspiracy is charged in the indictment and proven to the satisfaction of the court."

The contention being that the refusal of the court to tell the jury that no conspiracy had been established was equivalent to a finding that such a conspiracy had been proven to the satisfaction of the court, and that, therefore, neither of the defendants were competent witnesses for or against each other. The section of the statute referred to and the corresponding section of the Criminal Code, 223, were repealed by the act of March 23, 1894, since which time conspirators may testify for each other. (Kidwell v. Commonwealth, 97 Ky., 538.) But this section of the statute, even if it were in force, would have no bearing upon the question of the competency of the testimony complained of, for neither of the witnesses were jointly indicted with the appellant, and the section only referred to the admission of testimony of defendants jointly indicted. The testimony was clearly competent against the appellant, Snow, and the trial court was careful to exclude all matters contained in this statement, which in any wise affected the appellant, Richards. Appellant also complains that the trial court erred in giving instructions for grand larceny instead of robbery. The testimony in the case authorized an instruction on the charge contained in the indictment. But as grand larceny is a lower degree of the same offense as that charged in the indictment, it is punishable under the Code. (Commonwealth v. Perry Prewitt, 82 Ky., 240.) Another ground of complaint is that upon the trial of the case the presiding judge, in the presence of the jury, said to the Commonwealth's attorney: "I think you have proven enough against Snow already." Upon objection being made, the judge at once instructed the jury to pay no attention to his remark to the Commonwealth's attorney. The remark was very improper, but in view of the fact that the judge immediately cautioned the jury to pay no attention to it, and the additional fact that the testimony in the case establishes the guilt of appellants beyond all peradventure, it was not such prejudicial error as would justify a reversal of the case. For reasons indicated the judgment is affirmed.

SPENCER v. LANDSAW.

(Filed April 25, 1902-Not to be reported.)

Title Assignment of title bond-Facts-The wife of the maker of a title bond claims that the land belongs to her by reason of an assignment of a title bond to her. Her claim is denied on the ground that the assignment of the title bond to her was a forgery. Held-That the finding of fact by the chancellor against the wife will not be disturbed as the circumstances shown by the evidence sustain strongly the chancellor's conclusion. The rule is that a chancellor's judgment on a question of fact will not be disturbed where the evidence is conflicting, and on the whole case the mind is left in doubt as to the truth.

Day & Son and T. C. Johnson for appellant.

Z. T. Hurst for appellee.

Appeal from Wolfe Circuit Court.

Opinion of the court by Judge Hobson.

About the year 1887 James Spencer sold to his brother, Morgan Spencer, the tract of land in controversy. Morgan sold it to another brother, Thomas, and Thomas sold it to appellee, D. D. Landsaw, in the year 1889. Up to this time there had been no written evidence of either of these sales, but on April 26, 1889, James Spencer made a title bond to Morgan, which Morgan assigned to appellee Landsaw, who afterwards brought this suit on December 20, 1889, for a deed, the purchase money having been paid. Appellant, Oletha Spencer, on her petition was made a party defendant to the action and filed an answer in which she alleged in substance that the land was hers. She is the wife of James Spencer. The land in controversy is a part of a larger boundary covered by a title bond executed on January 1, 1871, by James Kash to Isham Brewer. On July 7, 1874, Brewer sold the land and assigned the bond to James H. Combs and Alexander Trent. On February 5, 1875, Trent sold his interest in the land and assigned the bond to W. T. Tyler, who, on September 2, 1875, assigned the bond and transferred his interest to James F. Spencer, and on the 9th of September, 1875, James H. Combs sold his interest in the land and assigned the bond also to JamesSpencer, who afterwards sold the smaller boundary to Morgan Spencer, as above stated. Appellant, Oletha Spencer, the wife of James Spencer, alleged that her husband used a horse and some other personal property belonging to her to pay Combs, and that in consideration of this he assigned the Kash bond to her on September 9, 1875. Appellee denied these allegations, and plead that the assignment of the bond by James Spencer to Oletha, his wife, was a forgery. Proof was taken and on final hearing the court dismissed the petition of Oletha Spencer and adjudged Landsaw the relief prayed by him. From this judgment she appeals.

The case turns simply on a question of fact, and on all the evidence we are unwilling to disturb the conclusion of the chancellor. The rule is that the chancellor's judgment on a question of fact will not be disturbed where the evidence is conflicting, and on the whole case the mind is left in doubt as to the truth. The circumstances shown by the evidence sustain strongly the chancellor's conclusion.

Judgment affirmed.

JOHNSON v. JONES, NEXT FRIEND, &c.

(Filed April 25, 1902-Not to be reported.)

Guardian-Sureties-Appellant was surety on a guardian's bond, and for his protection and the protection of the estate he induced the guardian to pay over to him the trust funds. On his motion, afterwards, the court required the guardian to execute a new bond, which was done, and an order entered releasing appellant from further liability. Appellant paid over the fund in his hands to the guardian, who misapplied it. This action was afterwards brought to recover said funds from appellant, and this appeal is from a judgment against him. Held-That by section 4663, Kentucky

Statutes, appellant was released from liability as surety, and he can not be held liable for a subsequent default by the guardian.

Sam Hooker and Browder & Browder for appellant.

E. B. Drake and S. R. Crewdson for appellees.
Appeal from Logan Circuit Court.

Opinion of the court by Judge Paynter.

H. R. Johnson qualified as the guardian of his daughter, Maud. The appellant, C. P. Johnson, was the surety on his bond as guardian. Before he would become surety he exacted an agreement from the guardian that he was to turn over the ward's estate, which amounted to $500, to be held by him during the time he was liable on the bond. Pursuant to that agreement the money was turned over to him, and he held it until January 11, 1890, when the Logan County Court made an order as follows: "Henry R. Johnson being required to execute a new and approved bond as guardian of Maud P. Johnson, on motion of C. P. Johnson, his surety, the said H. R. Johnson appeared in open court, and together with T. J. Johnson as his surety, entered into and acknowledged themselves bound to the Commonwealth of Kentucky as guardian aforesaid, conditioned according to law, which bond is accepted and approved by the court; and said C. P. Johnson is now released from liability as surety aforesaid."

After the execution of the new bond, and the appellant's release from liability on the former one, he paid the notes which he had executed to the guardian for the money in his hands. The court below gave judgment against appellant for $500 and interest.

The order shows that the motion was made by the appellant to require the guardian to execute a new bond as such. It also shows that the guardian was present in court and executed the new bond. It likewise recites that C. P. Johnson is released from liability as surety on the bond which he had signed for the guardian. Section 4663, Kentucky Statutes, provides that if the new bond is given, it shall operate as a discharge of all the sureties making the motion from all liability for the acts of the principal thereafter done. The estate was not converted during the time the appellant was surety on the guardian's bond, for he held it with a view of preserving it for the ward and for the purpose of protecting himself from loss by reason of his suretyship. After the new bond was executed he paid the notes which he had executed to the guardian for the money in his hands. If there was a conversion of the estate, it took place after the execution of the new bond, for which acts he is not liable. (Jones, &c. v. Gallatin County, 78 Ky., 491; Pepper v. Donnelly, 87 Ky., 259.) It is suggested by the counsel for ap. pellee that the court will have to affirm the judgment for at least $200. This suggestion is based upon a report which Johnson made to the county court, that he had received only $300 of the estate of his ward, when, as a matter of fact, he had received $500. The guardian had not converted the $200 to his own use, because the appellant held the entire fund, which included the $200, and afterwards paid it. The failure to make a truthful report by the guardian did not affect the rights of the appellant and could not vol. 24-2

make him again pay this $200 which he actually accounted for and paid to the guardian after the execution of the new bond.

The judgment is reversed for proceedings consistent with this opinion.

FORWOOD v. FORWOOD, &c.

FORWOOD v. LONG, &c.

(Filed April 25, 1902-Not to be reported.)

Title-Will-Conveyances-A. by a deed conveyed a tract of land to B., to take effect on her death. At her death, about twenty years after making the deed, she made a will, devising the same land to C., and D., a creditor of C., seeks to subject the land to the payment of his debt. Held-That the deed to B. vested him with the fee-simple title, and was irrevocable, although it postponed his enjoyment of the land until the death of the grantor. E. E. McKay for appellants.

John D. Carroll and Joe Clore for appellees.

Appeal from Oldham Circuit Court.

Opinion of the court by Judge Burnam.

The facts out of which this litigation grew are as follows: Nancy Lorg on September 15, 1873, executed the following instrument, which was duly recorded in the office of the county court clerk on the same day:

"This indenture, made and entered into this the 15th day of September, 1873, between Nancy Long, of Oldham county, Kentucky, of the one part, and August Leapold Long, of the city of New Orleans, of the second part, witnesseth That for and in consideration of the love and affection which I bear towards the party of the second part, and what he has heretofore done for me, and in consideration that he is still to support and take care of me, and of the sum of one dollar to me in hand paid by the said Long, the receipt of which is hereby acknowledged, I, the said party of the first part, have this day bargained, sold and conveyed, and do by these presents bargain, sell and convey unto the said August Long, his heirs and assigns, forever, the following described tract of land in Oldham county, Kentucky, taining 58% acres, being the same land conveyed by the commissioner of the Oldham Circuit Court to Nancy Long, recorded in book O, page 472.

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It is understood, however, that this deed is to take effect at the death of said Nancy Long, at which time the party of the second part is to be entitled to the possession of said land, and the absolute title thereto, to have and to hold the above-described tract of land unto the said party of the second part, his heirs and assigns, forever, to take effect at the death of Nancy Long; and the party of the first part further covenants that she will warrant and defend said tract unto the party of the second part, his heirs and assigns, forever, free from the claims of all persons whatsoever."'

On the 12th day of May, 1898, Mrs. Long willed this tract to the appellee, W. S. Forwood, to pay a medical bill recited in the will to be due him. In January, 1899, Mrs. Long died, and in February thereafter the appelle, C. W. Forwood, instituted a suit against the appellee, W. S. Forwood, on two notes, aggregating about $1,000, on which he obtained an attachment on the grounds