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(214 Ala. 593, 108 So. 536.)

consider as evidence the matter copied in the transcript following said quoted words.

Bradley v. Andress, 30 Ala. 80; Truett v. Woodham, 98 Ala. 604, 13 So. 519.

For the purpose of the settlement of guardianship accounts, the probate court is a court of general jurisdiction, and every reasonable presumption must be indulged in favor of the correctness of its rulings.

Truett v. Woodham, supra.

A husband's estate by the curtesy attaches to the vested remainder interest of the wife in lands, the want of seizure in the wife during coverture notwithstanding.

Jenkins v. Woodward Iron Co. 194 Ala. 371, 69 So. 646.

A husband is entitled to curtesy in money received from the sale of the entire or whole interest in the lands belonging to his deceased wife, though he receive and receipt for same as guardian of his minor children.

Re Camp, 126 N. Y. 377, 27 N. E. 799. Although life tenant has no right to sell timber from lands without the consent of remainderman, yet, having done so, he is entitled to the fund during his life.

Cecil v. Cecil, 161 Ky. 419, 170 S. W. 973.

Bouldin, J., delivered the opinion of the court:

The appeal is from a decree on final settlement of a guardianship in the probate court, made by the executor of a deceased guardian, and on the arrival of the ward at full age. Code, § 8207. The errors presented relate to failure of the court below to charge the deceased guardian, or his estate, with interest on certain funds received by him as guardian. H. D. Westmoreland, Sr., was guardian of his minor children, Marie Westmoreland and Hawkins D. Westmoreland, Jr.

The wards owned the remainder or reversion in residence property in the city of Selma, subject to the life estate of the father and guardian; title being derived through their deceased mother. The guardian, by regular proceedings through the probate court, sold the remainder interest of his wards in this

property for reinvestment. In the petition for sale it was recited that the wards were deriving no income from the property; that it was not apt to enhance in value, and the improvements were likely to depreciate in value; that it would be greatly to the interest of the wards to sell the property and reinvest the proceeds for the benefit of the wards.

The decree of sale recited that it appeared from the deposition of Samuel A. Fowlkes it would be to the interest of said minors to sell the property for reinvestment of the proceeds in bonds, notes, or bills of exchange at interest on mortgage security. The property was bought by Samuel A. Fowlkes at and for the sum of $8,000 cash. Throughout the proceedings the remainder interest of the wards was the property sold and purchased at the price stated. In the account filed by the executor for final settlement, $8,000, the purchase price of this land, was entered among the receipts, with the following: "Note:-Mrs. Lucile Westmoreland, wife of H. D. Westmoreland, Sr., owned at the date of her death, a vested remainder in the above realty. Dr. H. D. Westmoreland survived his wife, and at the date of the sale of said realty had an estate by the curtesy in the same, and was, therefore, entitled to the use of the proceeds of said sale for his life, and is not chargeable with interest on said fund."

On the hearing an agreed statement of facts signed by counsel was filed and submitted, the eleventh paragraph of which reads: "Eleventh. That said $8,000 received for the house and lot in Selma, Alabama, represents the entire value of the fee in said premises, and that said $8,000 was paid for the entire interest in said premises, and that said $8,000 and the said $321.43, and the sums mentioned as having been received from the sale of timber, are all moneys received by the said H. D. Westmoreland, Sr., as guardian for the said Marie West

moreland and the said Hawkins D. Westmoreland, Jr."

By the fourteenth paragraph it was stipulated that either party could introduce the record of proceedings and the record of any deed affecting title to the property. On the same date was filed the record of a deed from Hawkins D. Westmoreland, the surviving husband, to Samuel A. Fowlkes, conveying his life estate in the same property on a recited consideration of $1. This deed bears date a few days prior to filing the petition to sell the lands. It seems clear enough from the record, including agreement of counsel, that Fowlkes purchased the absolute title to the property, acquiring the life estate by deed from the surviving husband and father of the wards, and the remainder interest of the wards from him as guardian through the judicial sale. this end the entire purchase price of $8,000 was paid for the remainder interest, and the deed made on a nominal consideration. Did this entitle the guardian to have the use of the proceeds of sale for life in lieu of his life estate, and relieve his estate from liability for interest?

Interest-life tenant-liability for interest on proceeds of property.

To

We think not. In the first place, it does not appear the father intended any such result. The course pursued indicates a purpose to make a gift of his life interest to his children, much as if he had deeded such interest to them and then sold the entire fee as guardian. The method employed was to surrender the life estate that the full value should be bid for the remainder interest. But, whatever the in

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there was any waiver of the rights of the wards. While admitting the $8,000 represented the entire value of the lands, it further admits he received the entire fund as guardian, and reserves the right to introduce the records showing conclusively such fact. The agreement merely submits the whole facts for a ruling upon the -life tenantlegal rights of estoppel to the parties arising therefrom. It follows the guardian, or his personal representative, cannot claim a property interest in this fund, or its use for life.

claim interest.

Guardian and ward-interest

account for.

It became funds in the hands of the guardian for reinvestment at the date of its receipt, subject to the same fiduciary obligation of the guardian as other funds so held. The estate of the guardian is liable to account for the income from reinvestment, or inter- liability to est on the funds, as the justice of the case may appear, having regard to the trust relation between guardian and ward. Code, § 8149; Thompson v. Thompson, 92 Ala. 545, 9 So. 465; Owen v. Peebles, 42 Ala. 338; Bryant v. Craig, 12 Ala. 354. The same rules apply to the funds received by the guardian on account of timber sold from lands in which he had a life estate and his wards an interest in the reversion or remainder.

Life tenants

as waste.

Making merchandise of standing timber by a a life tenant is waste. He selling timber is liable to account therefor, whether committed actively or permissively. This rule is subject to certain incidents of the life estate in the matter of clearing lands for cultivation and marketing timber removed.

It is admitted the funds here were received by the guardian, as such, for timber sold. Prima facie, this rendered him liable for interest, and cast on the executor the burden of showing more than that he had a life interest in the lands.

We cannot subscribe to the doc

(214 Ala. 593, 108 So. 536.)

trine that a life tenant, notwith

-right to fund derived from waste.

standing the funds are derived from wasting the inher

itance, has the right of user for his life. Such notion rewards the wrongdoer for his wrong. It would invite waste by depleting the inheritance of valuable timbers. The fault of the argument in favor of allowing such use of funds for life is in a misconception of the incidents of the life estate with reference to growing timber.

The case may be different if the life tenant collects for a trespass by a third person, or collects the share of himself and wards on accounting by cotenants for timbers disposed of without any wrongful participation of the life tenant. These questions are not here presented. Appellee insists that in the present state of the record these questions cannot be reviewed, invoking the rule that we cannot review the conclusions of fact when the record does not show all the evidence heard by the lower court. The bill of exceptions does not in express terms recite that it contains all the evidence.

Here there is an agreed statement of facts. It sets forth all the jurisdictional facts leading to the settlements, lists the several items of funds received by the guardian, their source and date, lists articles of jewelry in the hands of the guardian, and leaves open an issue as to ownership of same. The final decree shows this issue was eliminated by later agreement of parties.

The agreed statement of facts closes by reserving to the parties the right to introduce cer

tain record evidence. The plenary scope of the agreement, naming things not agreed upon, and defining the further testimony to be offered, was intended, we think, in connection with the records mentioned, and evidence on the issues left open touching the jewelry, to constitute the evidence on which the cause was heard. Moreover, we will not presume that Appeal-preother evidence was sumption as to offered in contradiction of the facts agreed upon as shown by the record.

evidence.

The executor having claimed immunity from an interest charge on a named ground, the parties having stipulated the facts touching that claim, with nothing to indicate incompleteness therein, it would be an unwarranted stretch of the rule to presume the court had, and acted upon, wholly different evidence.

-effect.

The recital in the bill of exceptions that appellant offered the entire file in the cause, recital in bill followed by the sev- of exceptions eral proceedings identifying themselves as parts of the file, or marked filed of same date, will be treated as showing the entire file offered, nothing to the contrary appearing, and no suggestion of diminution or error in the record being made.

The recital in the decree that the findings are upon evidence adduced will, in the state of the record, be referred to the evidence shown therein, and not as indicative of other and different evidence.

Reversed and remanded.

Anderson, Ch. J., and Somerville and Thomas, JJ., concur.

ANNOTATION.

Timber rights of life tenant. [Life Tenants, § 14.]

This annotation supplements that in 21 A.L.R. 1002.

The opinion in the reported case (WESTMORELAND V. BIRMINGHAM TRUST & SAV. BANK, ante, 1201), both as re

gards its statement of the general rule against the life tenant's making merchandise of standing timber, and its implication as to his right to cut timber for the purpose of clearing land

for cultivation, is in harmony with the great weight of authority in this country as disclosed by the earlier annotation. See particularly subdivisions VII. a, and VIII. a, b.

So, in Decker v. Decker (1924) 205 Ky. 69, 265 S. W. 483, it is held that a life tenant has no right to cut growing timber except to be used in maintaining improvements on the land, and for other necessary purposes in connection therewith, but that a court of equity will not compel a life tenant, father to the remaindermen, to account to them for the money derived from the sale of the timber, where such money was used for their benefit, and they had allowed the claim to grow stale by sleeping upon their rights for more than fifteen years.

The right of the life tenant to dispose of timber for the purpose of cultivating the land was conceded by the court in Russell v. Pagan (1925) 167 Ark. 143, 267 S. W. 573; but it was held that the intention not to dispose of the timber in order to open up the land, but merely to engage in a commercial venture, was apparent from the extent of the period (twenty years) in the life tenant's grant of the right to remove the timber. That grant was in the form of an extension of a right under a deed executed by the life tenant's father, while he was the owner of the fee, which specified a period of eleven years for removal, with a provision that the time might be further extended upon the payment of an annual rental. Apparently, the original period had expired without a renewal before the life tenant's attempted extension, and the court said that the effect of the renewal contract executed by the life tenant merely constituted a new sale, and it was dependent entirely upon the right or authority of the life tenant to sell the timber, and gained no vitality from the original contract executed by the owner of the

fee. It may be observed in this connection that the court makes no allusion to the exception treated in the earlier annotation (VII. b), under the heading, "Custom of estate." A similar exception as regards the exploitation by the life tenant of the oil and gas resources of property is treated in the annotation in 43 A.L.R. 811, 813, et seq.

The life tenant of lands, limited by a settlement to trustees, without impeachment for waste, to allow the life tenant to enter in and remain in possession or receipt of the rents and profits during life, was held entitled, as against the trustees claiming them as part of the capital moneys of the estate, to the proceeds of timber which already had been severed, under a previous sale of timber by him, at the time when in the exercise of his powers as tenant for life he sold the portion of the settled lands on which the timber stood, subject to the right of the purchaser of the timber, as well as the proceeds from the timber subsequently severed under the timber grant. Spicer v. Londesborough (1923) 92 L. J. Ch. N. S. (Eng.) 423. It was so held notwithstanding that it was nowhere stated in the settlement that the life tenant, while in possession, was to be unimpeachable for waste. Romer, J., said that, as between the trustees as the legal owners of an estate for life, and the inheritance, the trustees (who were unimpeachable for waste), were entitled to the proceeds of the sale of the timber as part of the rents and profits; and if the life tenant was not entitled to the proceeds as "rents and profits" it would follow that no trust had been declared of them at all; but that in his judgment the life tenant was so entitled, as being the person who, before any forfeiture, was in equity entitled to everything accruing to the trustees as rents and profits. J. P. M.

(211 Ky. 462, 277 S. W. 816.)

H. G. BROOKS, Doing Business as H. G. Brooks & Company, Appt.,

V.

GRAY-VON ALLMEN SANITARY MILK COMPANY.

Kentucky Court of Appeals — November 27, 1925.

(211 Ky. 462, 277 S. W. 816.)

Master and servant, § 457 - liability for fraudulent acts of servant. 1. A master is not liable for the act of his servant employed to deliver goods and collect the amount due, in fraudulently inserting a fictitious bill under one presented to the receiving clerk for his signature, so as to get a carbon indorsement of it and permit collection of a raised amount from the paying clerk, where the purpose was to permit the clerk to misappropriate the additional amount so received, and he is, therefore, not bound to account to the customer for the misappropriation.

[See annotation on this question beginning on page 1212.] Master and servant, § 429 liability for wilful act of servant.

2. To render a master liable for a wilful act of his servant it must have been done not only in the course of the servant's employment, but also with a view to the furtherance of his master's business, and not for a purpose personal to himself.

[See 18 R. C. L. 799, 800; 4 R. C. L. Supp. 1207; 5 R. C. L. Supp. 1002; 6 R. C. L. Supp. 1085.]

Forgery, § 2-inserting fraudulent items in bill.

3. The act of inserting fraudulent charges for goods not contained in a bill rendered and indorsed as correct,

for the purpose of procuring money not covered by the bill, is forgery.

[See 12 R. Č. L. 147; 5 R. C. L. Supp. 634. See also annotation in 26 A.L.R. 1058.]

Negligence, § 154

principal and agent payment of fictitious bills effect.

4. A paying clerk whose duty is to honor original bills properly indorsed by a receiving clerk is negligent in paying bills carrying a carbon indorsement, so as to prevent holding the employer of the one delivering the goods and collecting the payment liable, in case the servant secures carbon indorsements on fictitious bills and thereby collects and misappropriates more than is due.

APPEAL by plaintiff from a judgment of the Common Pleas Branch, Fourth Division of the Circuit Court for Jefferson County (Krieger, J.), sustaining a demurrer to and dismissing a petition filed to recover money alleged to have been wrongfully paid to defendant's servant under a mistake of fact. Affirmed.

The facts are stated in the opinion of the court. Mr. Eugene'R. Attkisson, for appellant:

Money paid under mistake of fact may be recovered.

Germer and Gambill, 140 Ky. 469, 131 S. W. 268; McMurtry v. Kentucky C. R. Co. 84 Ky. 462, 1 S. W. 815.

The servant here perpetrated the alleged fraud or crime while actually acting for his master and carrying out his work in the scope and course of his employment, and the master is liable though it derived no benefit therefrom.

Hale, Torts, pp. 141-160; 18 R. C. L. §§ 253, 255, 256 p. 793; 26 Cyc. p. 1527; 31 Cyc. p. 1582; Hirschel, Business Law, § 76, p. 78; Bank of Batavia v. New York, L. E. & W. R. Co. 106 N. Y. 195, 60 Am. Rep. 440, 12 N. E. 433; New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30; Bank of Palo Alto v. Pacific Postal Teleg. Cable Co. (C. C.) 103 Fed. 841; Bank of California v. Western U. Teleg. Co. 52 Cal. 280; McCord v. Western U. Teleg. Co. 39 Minn. 181, 1 L.R.A. 143, 12 Am. St. Rep. 636, 39 N. W. 315; Elwood v.

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