misdoing of another," unless the promise to do so, is in writing and signed by the person to be charged, as, is heretofore shown, a promise to pay the debt of another, not made to the one to whom the debt is owing and founded upon a different consideration from that, upon which the debt, promised to be paid, is based, is not within that statute, and is not required to be in writing to be enforcible. In other words, it is an independent contract and based upon a different consideration. Under the statute of frauds, when one, by promising to pay the debt of another, procured the creditor to release the other, from all liability, the promise was not within the statute of frauds, although made to the creditor. Day v. Cloe, 4 Bush 563; Fain v. Turner, 96 Ky. 634; Wagner v. The Bells, 4 Mon. 8; Leiber v. Levy, 3 Met. 292; Jones v. Walker, 13 B. M. 357; Myles v. Myles, 6 Bush, 237. In these cases, the holding was upon the theory, that the promise, was to pay absolutely, and not on condition of any default or misdoing of another. But, we have held, that under section 2127, supra, a wife can not assume the debt of her husband and be made liable upon the promise, although she executes her promissory note, when there was no other consideration for her promise, than the release of her husband, from further obligation. Deposit Bank of Carlisle v. Stitt, 107 Ky. 49; Russell v. Rice, 19 K. L. R. 1613; Crumbaugh v. Postell, 20 K. L. R. 1366; 49 S. W. 334; Milburn v. Jackson, 21 K. L. R. 700; Third National Bank v. Tierney, 128 Ky. 836. The reason for this holding, is apparent. To permit such a result as would be accomplished, by the release of the husband and the binding of the wife, without other consideration, than his release, and no beneficial result to the wife, would be, to give sanction to the very thing, which it is the purpose of the statute, to prevent, and would amount to a mere evasion of the statute. It has, also, been held, that where a wife has executed her note for a loan, which the creditor knew was for the husband and was, in fact, the debt of the husband, such a transaction did not bind the wife, but was within the prohibition of the statute. Section 2127, supra, has been construed, in many other cases, and the language used in the opinions, must be read, in the light of the particular facts, in each case, but, it may be gathered from the opinions, that the rule applicable to all transactions, in which a married woman assumes the debt of another, is, that she can not do so, and will not be

personally liable, and her estate will not be liable, except to the extent, she sets it apart for that purpose by "deed of mortgage or other conveyance." Neither will an arrangement, which amounts to a mere evasion of the spirit of the statute, and where the result accomplished, is a substantial assumption, of the debt of another by a married woman, without a sufficient consideration, to make it an independent contract of her own, it will not be allowed to prevail. In the determination of whether the promise of the wife is within the statute, the court will not regard the mere form of the transaction or the sheer camouflage thrown about it, but, will look into the substance of the transaction. Tipton v. Traders Deposit Bank, 17 K. L. R. 960; New Farmers Bank, etc. v. Blythe, etc., 21 K. L. R. 1035; Hart v. Bank of Russellville, 127 Ky. 424; Hines v. Hays, 26 K. L. R. 967, 82 S. W. 1007; Black v. McCarley, 31 K. L. R. 1198; Planters Bank v. Mayor, 25 K. L. R. 702; Tompkins v. Triplett, 110 Ky. 824; Hall v. Hall, 118 Ky. 656; Deering v. Veal, 25 K. L. R. 1809; Morrison v. Morrison, 113 Ky. 507; N. Y. L. Insurance Co. v. Miller, 56 S. W. 975; Brady v. Equitable Trust Co., 178 Ky. 693. The facts, of the instant case, as presented by the pleadings, are different from any of the cases, above cited. The purpose evinced, is not the assumption of the husband's debt, or to pay it, upon the condition, that he fails to do so, as the wife would do, as a surety, but, it is a contract for the purchase of the husband's real estate, and the promise to pay, unconditionally, the husband's debt as the purchase price. It must be assumed, upon demurrer, that the consideration for the promise, was sufficient, and the inducement for the contract. The promise was not to the creditor. The consideration for the promise, was a new and different consideration from the one, upon which the execution of the note was based. Hence, the promise is not one "to answer for the debt, default or misdoing of another, within the spirit and meaning of the prohibition of the statute. It seems to be a contract, so far as concerns the wife, entirely independent and unconnected with the contract between the husband and Meadors, and founded upon a substantial consideration received by her.

The judgment is therefore reversed, and cause remanded with directions to set aside the judgment, and overrule the demurrer, and for further proceedings, not inconsistent herewith.

Irvine, et al. v. Stevenson, et al.

(Decided February 18, 1919.)

Appeal from Madison Circuit Court.

1. Guardian and Ward-Employment of Attorneys-Services.-A guardian is authorized to employ attorneys to prosecute and defend actions for his wards, and to bind their estates to pay a reasonable fee for the services of the attorneys.

2.

3.

4.

Guardian and Ward-Payment of Attorneys' Fees.-Before the estate of an infant can be subjected to the payment of counsel fees, upon a contract with the guardian, it must appear, that the services were actually rendered, and that they were reasonably necessary for the protection of the interests of the infants, and that the sums charged, are reasonable and not disproportionate to the value of the services rendered.

Guardian and Ward-Allowance of Attorneys' Fees.-The amount allowed for counsel fees, against the estate of an infant, will not be increased on account of the number of attorneys engaged, but, the court will fix a sum for payment for the necessary legal services rendered, and apportion it between the attorneys, as may be equitable.

Guardian and Ward-Payment of Attorneys' Fees.-Where attorneys defend an action for wards, by contract, with the guardian, and the guardian pays them, he will be allowed credits in his settlement by the sums paid, if the services of an attorney were reasonably necessary, and the sums paid, were reasonably proportionate to the value of the services, but, in the event the guardian fails to pay for the services, the attorneys may subject the estate of the wards to the satisfaction of their debts, by a suit in equity, in which all the parties, in interest, are made parties.

5. Attorney and Client-Compensation.-In fixing the compensation due an attorney, for legal services, the amount and character of the service rendered, the nature and importance of the litigation, the amount and value of the property, in contest, the skill necessary to properly attend to the business, and the professional standing and skill of the attorney may be looked to, together with the time, labor and trouble expended.

G. MURRAY SMITH for appellants.

J. J. GREENLEAF and JOHN NOLAND for appellees.

OPINION OF THE COURT BY JUDGE HURT-Affirming. Harry Crawford, died intestate, on the 10th day of February, 1911, leaving, surviving him, a daughter, Mollie Black, who was the wife of General E. Black, and the mother of an infant son, Harry Crawford Black.

Bettie Irvine was the mother of two illegitimate sons, William Irvine, and Marcus Irvine, whom she claimed, were the natural children of Harry Crawford. William Irvine and Marcus Irvine were then, and are now, infants. On the 27th day of October, 1908, Harry Crawford executed a deed to Mollie Black and her son, Harry Crawford Black, by which, he conveyed to them, a farm, containing three hundred acres, in Clark county. He instituted a proceeding in the Clark circuit court, for the purpose of adopting William Irvine and Marcus Irvine, as his heirs, at law. On September 23rd, 1909, he executed a deed, by which, he conveyed, to his daughter, Mollie Black, and his grandson, Harry Crawford Black, onethird of seven hundred and eighty-one acres of land, in Madison county, and on the same day, he conveyed twothirds of the seven hundred and eighty-one acres, in Madison county, to William Irvine and Marcus Irvine. He conveyed to each of them, a certain portion of the lands, but, with the condition, that in the event of the death of either, without issue, before arriving at the age of twenty-one years, the interest, conveyed to him, should pass to the other.

Following the execution of the deeds, on the 30th day of September, 1909, a judgment was rendered, in the proceeding, by Harry Crawford, to adopt the two Irvine children, as his heirs, granting the relief asked.

After the death of Crawford, the lands in Madison county, were divided between Mollie Black and her son, and the two Irvines, and deeds were made, under a judgment of the circuit court, by which the commissioner of the court, conveyed to William Irvine, 281.62 acres of the lands, and to Marcus Irvine, 221.12, acres of the lands. Bettie Irvine was appointed and qualified, as the statutory guardian of William and Marcus Irvine, and as such, had in her hands, a promissory note, for the sum of $8,619.76, of which the interest owned by one of her wards, was, $4,277.40, and the interest owned by the other, was $4,342.36, all of which they received as the heirs, by adoption, of Harry Crawford.

Thereafter, in February, 1915, one Anna Karnes, claiming to be a legitimate daughter of Harry Crawford, instituted suit, in the Clark circuit court, against Mollie Black, Harry Crawford Black, Bettie Irvine, as guardian, and her two wards, William Irvine and Marcus Irvine, and by which, she claimed, that she and Mollie

Black were the only heirs of Harry Crawford, and that as such, each was entitled to one-half of his estate; that the deeds made by Crawford, by which, he had conveyed the lands, previous to his death, were invalid, because they were made at a time, when he was mentally incapable of knowing what he did, or the force or effect of his acts; that he was unduly influenced to secure the decree of the Clark circuit court, by which William and Marcus Irvine were adopted, as his heirs, by the exercise of an undue influence upon him by Bettie Irvine, at a time, when he was decrepit in health, and mentally incapable of knowing the character or quality of his acts, and prayed, that the decree of adoption be declared void, and that the deeds executed to them, by Harry Crawford, be cancelled and declared void, and that the personal property, in the hands of their guardian, and all the real estate of which Harry Crawford died the owner, and that, which he had conveyed to Mollie Black and her son, and to William and Marcus Irvine, be divided, equally, between Mollie Black and herself.

Bettie Irvine, as the guardian for William and Marcus Irvine, contracted with two lawyers, J. M. Stevenson, and J. C. Chenault, to represent her as guardian, and to defend the action for her wards. The contract was reduced to writing and signed by the parties, and by its terms, it was agreed, that the lawyers would attend to the preparation of the defense to the case, and to take all necessary legal steps for the protection of the interests of the wards, in the circuit court, and in the event of an adverse judgment, would prosecute an appeal to the Court of Appeals. A retainer of $100.00 was to be paid, and the lawyers were, also, to be paid fees, to be agreed upon by the parties, and if an agreement could not be made, then, the fees, should be fixed by the judge of the court, or the Madison county court. The lawyers were, also, to be paid their actual expenses incurred in the preparation of the action for trial. On the 4th day of April, 1916, the action ended, by an agreed judgment of the circuit court, by which the action was dismissed and each party was adjudged to pay the costs created by him. Afterward, a motion was made, by the plaintiff, to set aside the judgment, but, this motion was defeated and overruled. Under its terms, the contract of employment of the attorneys, thus ended. Ball v. Lively, 2 J. J. M. 181. Richardson v. Talbott, 2 Bibb, 382.