aggregate. That he managed her affairs well and profitably for her is evidenced by the fact that in November, 1894, when the will was written, he held notes, contracts, and accounts belonging to his wife of the face value of $13,000. He had taken notes for her, which were then in her possession, amounting to $1,199.80, and during this time he had bought for her, and taken the title to her, bank stock at a cost of $1,800, a cottage costing nearly $700, and she had expended, for horses, taxes, and other items during the 14 years from their marriage to the date of the will, more than $3,000. This recitation from the record as to how the business affairs of appellee were managed by her husband before the will was written is given for the purpose of throwing what light it may upon the transactions that have occurred since that time. queath." Though the word "devise" is more | years, from the sale of her land and from frequently used in passing or disposing of dividends upon the stock, $12,899.80 in the real estate by will, it is sometimes used by testators in disposing of personal property. None of these words are used in item 1, nor is there any word or phrase therein that would tend, in the slightest degree, to show that in this clause of his will the testator was proposing to make his wife a gift or bequest. On the contrary, he says, in language so plain that it leaves no room for doubt, that he holds of his wife (not his own) money and notes to the amount of $13,000, and he charges himself with the same, and pledges his entire estate to pay it, with interest from the date of the will. If there could be any doubt as to what the testator meant by the language used in item 1, it would be made plain by a consideration of item 2. In this item we find the testator making disposition of his entire estate, after the payment of his debts, and he again speaks of item 1 as one of the debts which he directs paid, and, having directed the payment of his debts in item 2, he proceeds to make a bequest to his wife, in which it will be noted there is a radical difference in the language used. In the first clause he says, "I have in my hands, belonging to my wife, $13,000.00," etc., while in item 2 he says "I give to my beloved wife," etc. The testator understood his obligation as a debtor and his duty as a husband, and knew well how to express each. Considering the entire will, we must conclude that item 1 is not a bequest, or the creation of a legacy, but was intended by the testator to be the evidence of an indebtedness on his part to his wife. The will under consideration furnishes an admirable insight into the character of the testator. At the time he married, all of his wife's personal property, which he reduced to possession, became his absolutely. He and appellee were married in 1879, and from that time until the date of the will he had the management and control of his wife's property. She had sold a farm for $7,500. This money had been turned over to him to be managed by him. She also owned certain bank stocks, and the dividends declared upon this stock were regularly turned over to him for investment for his wife. All of this money had been reduced to his possession. Just shortly before the execution of the will the Legislature had passed an act radically changing the rights of married women in regard to their property. The testator was evidently uncertain as to just what the rights of his wife under the law would be, and hence he so worded his will that there could be no uncertainty as to the capacity in which he held her money; and also made such provision as would prevent his wife from having any trouble in securing her property in the event of his death. The record shows that he had managed his wife's business, loaned her money; collected and reloaned it from the date of the marriage to the date Appellee's bank book shows that upon the date when the will was written she had in bank to her credit $23.80, and so far as the record shows this, together with the indebtedness and notes mentioned in the will, constituted all of her personal property, except her bank stock. Her husband continued to manage her business affairs after the will was written just as he had theretofore done, and during the years between November 27, 1894, and his death in 1903, he collected, on notes, accounts, contracts, interest and dividends on bank stock, and deposited in bank to the credit of his wife, $11,761.45. A part of this sum was necessarily represented by notes and contracts which formed a part of the $13,000 he held. During the same period he drew out of bank all of the money which was standing to his wife's credit, excepting $16, and reinvested it in other notes and property for his wife, as the checks show upon their face the purposes to which the money was applied; and, while all of these notes have not been accounted for and traced with accuracy, appellee admits in her answer that she had at that time in her possession notes, which her husband so took for her, of the face value of $6,803.36. The testator's aim seems to have been to keep all of his wife's money at interest, and the record shows that he would reinvest in new notes as fast as collections were made. As all of these transactions were made through the bank, some confusion has arisen in attempting to determine how much of the original debt enters into the new transactions evidenced by the bank deposits, during the 8 years after the will was written. Necessarily many of the debts that were then in existence have been paid off, and the money collected and reloaned again, and it is next to impossible to tell how much of these deposits represent original debts, and how much reloans of the same money. For instance, A. at the date of the will, owed $100, and this $100 was a part $100 was deposited in bank by testator to the credit of his wife. B. desired to borrow $100, and this money was checked out to B. At the end of a year he pays his debt, $106. and this money is deposited in bank by testator to the credit of his wife. Immediately $100 is loaned to C. for one year. He pays his debt at maturity, $106, and this is deposited in bank. Now we have in this transaction but $100 of the original debt paid, and yet the bank book and the checks show that $312 have been deposited and $300 paid out. From this illustration it is plain to be seen that the notes and contracts taken since the date of the will cannot be accepted as credits upon the debt in existence at that time, unless it is shown that they went into the fund and formed a part of it. The bank deposits made since the date of the will are made up of three items: Collections on debts existing when the will was written, interest on notes, and dividends on bank stock. Now appellee has in her hands, according to the court's finding, notes of the value of $6,803.36. If any of these were paid with new money— that is, money which did not represent a part of the old debt-then to this extent they should not be allowed as a credit on the old debt. These bank dividends, covering the period under consideration, amounted to $3,063, and this entire sum went into the business transactions which testator had for his wife. In other words, he loaned it out, and of course, as she furnished this money, this sum must be excluded from consideration in determining what credits the $13,000 is entitled to. constituted evidence of debt against testator. When it is remembered that these acts of testator in regard to these checks were all conducted in his representative capacity as agent for his wife, it is readily seen how little merit there is in this claim, based upon these checks. The record shows that several, but not all, of the notes which the will referred to as being in appellee's possession were collected by testator; but, as he was acting in the general capacity as agent for his wife, it is fair to presume, from the lapse of time and the further fact that none of these notes are now shown to be in existence, that he collected all of them, and his estate is therefore chargeable with the full amount thereof, with interest from the date of the will. Appellee in her answer asked that the estate of her husband be charged with the notes which he had turned over to her because he had indorsed them guaranteeing their payment. This should be done, not only for the reason assigned in the answer, but for the further reason that these notes are a part of the debt referred to in the will, and especial provision is made therein, which makes the entire estate responsible for the payment of this debt. The evidence in this case took a wide scope, and there was some proof taken showing that the land which appellee owned was used by her husband between the date of the execution of the will and his death, also that its reasonable rental value was so much per year during that time; the aggregate value of this rental, as fixed by the witnesses, being $1,000. Appellee had made no claim for this rental in her answer, nor did she present any such claim to the commissioner to whom the case was referred. Indeed it is not now clear that she really wants to assert this claim. Her husband certainly did not in any way, during the 8 years covered was to pay rent for it. He made no record of it in any way, although we find that he was very particular and careful in dealing with his wife's property. As he did not charge himself with this rent, nor indicate, so far as the record shows, that he was expecting to pay same, we are led to believe that he was not contemplating paying rent, nor does the evidence justify the conclusion that his wife was expecting him to pay. Appellee urges that she should be allowed credit for the checks to which we have referred as being drawn on her account by her husband since 1894, and amounting in the aggregate to $10,470.54. The checks themselves show what they were for, and appellee has been given the benefit of the purchasing pow-by the proof of this claim, indicate that he er of each check by having the notes or contracts transferred to her, where the checks were for that purpose, or by receiving credit for taxes paid, etc. These checks are not evidence of indebtedness, but merely the evidence of various business transactions which appellee's husband conducted for her as her agent. The testimony of appellee's brother abundantly establishes this fact, if any proof was wanted or needed to support the evidence furnished by the checks themselves. Appellee has had the benefit of every transaction represented by these checks. Her husband collected and received her money for her, put it into the bank to her credit, and, when he found a suitable place to loan it again, or needed it to pay her taxes, or any other debt for her, he checked it out. In all of these transactions he acted as her agent, and had she conducted this business in person, she would have had to check out the money just as her husband did for her. Of course, if the latter plan had been pursued, It appears that at some time during this period the turnpike roads in Boyle county were purchased by the county. Appellee owned some stock in one of them, and in the settlement of the transaction there was paid to her the sum of $90.21. Some claim is made that her husband's estate should be chargeable with this sum, but an examination of the checks shows that they were all made payable to her, and were indorsed by her. Presumably she received the money on them; and certainly the evidence does not justify the claim that her husband's estate The claim that appellee is entitled to credit for the proceeds of a note amounting to $500, which was paid by her brother, John, cannot be allowed, for the reason that the money for which this note was executed was a part of the original debt, or of the proceeds of some of the notes referred to in the will; and, having been charged in that item, his estate cannot be made answerable for it again. On the question of the claim for taxes personally paid by the testator on his wife's property during his lifetime, and for which the administrator seeks credit, we are of opinion that, as testator had the management of his wife's business and control of her money, if he had intended that these claims should be a charge against her, he would have paid them out of her money. This claim, like the claim for land rent and pike proceeds, is stale and has no merit in it. Having considered all of the claims made by the pleadings and the proof before the master, and all evidence of indebtedness brought out by the testimony and exhibits filed, we find that appellee is entitled to her claim of $13,000, with interest from the date of the will, to wit, November 27, 1894, amounting to $22,230, calculating the interest to September 27, 1906. Also to the further claim of $1,199.80, with interest from the same date, and calculating this to September 27, 1906, amounting to $2,051.57. She is also entitled to the further sum of $3,063, this being the dividends accruing on her bank stock, during the years between 1894 and the death of her husband. We are aware that appellee's counsel admits that the claim for $2,051.57 should have a credit which would reduce it to $1,422.65, but this admission is made on the mistaken idea and belief that appellee was entitled to be allowed her claim for the amount of the checks which we have rejected. Her claim is to be credited by the notes which she admits she had on hand, and which, according to the commissioner's report and the judgment of the court, on September 27, 1906, to which date all interest calculations are made, amounted to $6.803.36. Deducting this from her total claim of $27,344.57, there was due her a balance of $20,541.21, as of date September 27, 1906. Her husband had guaranteed the payment of the notes which she held, and which, on September 27, 1906, amounted to $6,803.36. The chancellor recognized the validity of this guaranty, and gave appellee the option of returning the notes and receiving from the estate cash in lieu thereof. She is entitled to have her claim increased by the face value of such notes as she returned within the time limit, calculating the interest at 6 per cent. from the time when interest began to run on each note to September 27, 1906; and, if any payment of interest or principal was made to her on any of the notes returned between September 27, 1906, and the date upon which she surrendered them, this sum Complaint is made that the allowance to the commissioner is excessive. Both appellant and appellee unite in this complaint. Appellee further contends that the allowances to the administrator and his attorney are excessive, while appellant and his counsel complain that they are not large enough. The allowances to the commissioner and the administrator are governed by statute, and the allowance to the attorney for his services, while not regulated by statute, is required to be reasonable. Section 1740 of the Kentucky Statutes of 1909 provides that a master commissioner shall, in the absence of any special agreement with the parties, receive $3 per day for the time he is actually employed or engaged in the discharge of his duties. This provision is mandatory, and the court is without authority to exceed this limit. It is further provided in this section that the per centum which a commissioner shall receive for collecting and disbursing money under order of court shall be as follows: "Where the amount is more than one thousand, but does not exceed two thousand dollars, two per cent. on the first thousand, and one and one-half per cent. on the excess. Where the amount is more than two thousand, but does not exceed five thousand dollars, two per cent. on the first thousand, and one and one-half per cent. on the second one thousand, and one per cent. on the excess. Where the amount is over five thousand dollars he shall receive fees on the first five thousand dollars, as above provided, and onehalf of one per cent. on the remainder." The right of the commissioner to compensation is further regulated and controlled by section 396 of the Kentucky Statutes of 1909, which is as follows: "No allowance in any case shall be made to a commissioner or receiver until he has filed in court a written statement under oath of the number of days he has acted; and in all cases evidence may be heard for and against an allowance." section is mandatory, and its provisions must be complied with. We fail to find in the record a statement from the commissioner showing a compliance with this provision of the statute. His report on claims shows that he was actually engaged for more than 200 days during the two years that the case was before him. Under this statement, if it be accepted as a compliance with section 396, he is entitled to pay for but 200 days' service at $3 per day, or $600, on account of this item. His per centum must be based upon the money which he actually receives and pays out. The entire estate, based upon the actual amounts reported by the administrator upon his first and second settlements, and the estimate which the commissioner made to be the value of the remainder of the estate at the time the second settlement was made, is, in round numbers, $109,000; but of this sum the administrator reported in his first and second settlements that he had paid out $32, This could possibly handle would be $76,600. Tak- | date; but there is a large part of the estate ing this as the basis, and allowing him his yet to be disposed of, notes are to be collected, full commissions as fixed by the statute, he and the business of the estate in the hands of would only be entitled to receive $423 on this the administrator closed up. This will reaccount, making his total claim $1,023, and quire time, and impose upon the administrathis contemplates that he should receive and tor a responsibility for which he is entitled to pay out all of the money that has so far compensation. Taking into consideration the not been disposed of. allowance heretofore made to the administrator, we are of opinion that an additional allowance of $1,000 should be made him to cover in full the services rendered since the rendition of the judgment, and yet to be rendered by him in collecting any moneys due the estate, and in attending to all and several the duties pertaining to his office in closing up the business of the estate in his hands. The compensation of the administrator is fixed by statute (section 3883) which is as follows: "The allowance to executors, administrators and curators shall not exceed five per cent. on all the amounts received and distributed: Provided, that upon proof heard in open court, upon proper notice to the parties in interest, the court may make an allowance when the executor, administrator or curator has, in the proper discharge of his duties in attending to, administering and settling the estate in his hands, been required to perform extraordinary services; but such allowance shall not exceed in amount a fair compensation for the time occupied, and expenses incurred in protecting, attending to and settling such estate, and five per cent. on all amounts received and distributed." The court was familiar with the character and extent of the services rendered by the administrator, but nevertheless he heard proof on the value of the services of the administrator to the estate, and, upon the proof so heard, fixed $3,500 as a fair compensation for the same, although the witnesses fixed a higher value. The record shows that the testator at the time of his death left his business, which was that of operating a planing mill and building houses, in a very tangled and unsettled condition. Appellant was called upon to operate the mill for some three or four months, and finish nine houses which were under way at the time of the testator's death. From 600 to 800 persons were indebted to the testator, and these had to be settled with. Many of them lived in adjoining counties, which necessarily required much of appellant's time and the expenditure of some money in looking after same. Appellant was required, in the interests of the estate, to be present during the taking of the proof before the commissioner, which, according to the commissioner's report, lasted for more than 200 days. He conducted the sales of real and personal estate, amounting in the aggregate to about $50,000. He had collected, at the date of the judgment, over $70,000, and out of this sum paid claims amounting to more than $30,000, and, under the direction of the court paid the balance to the commissionIt is estimated that the estate, administered and yet to be administered, will amount to something like $109,000. We are of opinion that as the court allowed the administrator about 5 per cent., which was the maximum that he could have allowed him under the law, upon the money which he had handled at the time the allowance was made, It was a reasonable and fair allowance for er. The court heard proof on the claim of ap pellant for a reasonable allowance to his attorney, as a fee for services in the settlement of the estate. No witness fixed the value of these services at less than $5,000. The court allowed him $4,000. Appellant is complaining that it is too little, while appellee says it is excessive. It should be reasonable. This is a large estate; and, while an attorney should have a more liberal allowance made him for his services in advising the personal representative in the settlement of a large estate than he should where less money is involved, his fee should, in the main, be regulated by the character of the services he renders the estate. If this service is valuable, his compensation should be liberal. If it is not valuable, and yet competent and good, his compensation should be fair. No fixed rule can be adopted by which a scale of fees for attorneys can be laid down. All that can be said is that they must be reasonable, taking into consideration the character of services rendered, the time employed, the size of the estate, and the extent of the liti gation. In this case we have a large estate, consisting of real and personal property. Under the advice of his attorney the administrator sold and converted all of this property into cash. He has advised the administrator, from the time he qualified in 1903 to the present time, in the conduct and management of the estate. He filed this suit for settlement, and has, with diligence and ability at all stages of the litigation, sought to protect the estate against the imposition of spurious and improper claims. The litigation has been spirited, and at times acrimonious. Three branches of this litigation have reached this court, and the attorney for plaintiff has looked after the appeals here. The character of the services which he has rendered the estate in the circuit court and this court is best illustrated by the results achieved. The first appeal involved the right of the administrator with the will annexed to sell the real estate, and this court in Harding's Administrator v. Weisiger (Ky.) 109 S. W. 891, upheld the contention of plaintiff's counsel that the administrator had such right, ous errors of the court in regard to the formation of the grand jury which found the indictment and of the petit jury which tried his case. All of these were disposed of adversely to his contention in the case of George Ehrlich v. Commonwealth (opinion rendered January 29, 1909) 115 S. W. 797. We think the evidence warranted the submission of the case to the jury, and, under our ruling, we will not review their conclusion on the facts if there be evidence sufficient to authorize the submission of the case to their consideration. The second appeal was from the judgment of | fendant upon this appeal relies upon numerthe lower court, rejecting practically the entire claim presented by John Weisiger for $6.000. The judgment of the lower court was affirmed. The third and last appeal is now before us, and involves the validity of appellee's claim for more than $40,000. Through his efforts he has successfully represented the estate in defeating the collection of something like $35,000 in claims which were presented against the estate, and which neither the administrator nor his attorney believed to be valid and just claims. He attended the sittings of the commissioner during the 200 days he was engaged in taking proof, and gave to the litigation at all times careful and painstaking attention. Many of these duties which he was called upon to discharge were necessarily more or less embarrassing. They involved him in a family quarrel, and no doubt engendered against him a bitter state of feeling, if not animosity, on the part of his brother's widow and her people, yet this did not deter him; for throughout the litigation he discharged his | (Court of Appeals of Kentucky. Feb. 16, 1909.) whole duty to the estate, whose interest he was employed to protect, with that degree of fidelity and ability which marks him as the good lawyer which he is. This service was well worth $5,000 to the estate, and on the proof heard the judge should have allowed this sum. The judgment is reversed and remanded, with instructions to the lower court to enter a judgment in conformity with the directions set out in this opinion. BERNERO v. COMMONWEALTH. -CONFLICTING EVIDENCE. Where the evidence in a criminal prosecution warrants the submission of the case to the jury, the court on appeal, will not review the verdict. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1159.*] Appeal from Circuit Court, Campbell County. "Not to be officially reported." Anthony Bernero was convicted of maintaining a public nuisance by operating a poolroom, and appeals. Affirmed. C. L. Raison, Jr., and John B. O'Neil, for appellant. Jas. Breathitt, Atty. Gen., and W. A. Burkamp, for the Commonwealth. Upon the whole case we are satisfied that no injury was done to the substantial rights of the appellant, either in the rulings of the court or the conclusion of the jury as to his guilt. The judgment is therefore affirmed. BERNERO v. COMMONWEALTH. 1. CRIMINAL LAW (§ 292*)-PLEA OF FORMER CONVICTION-SUFFICIENCY. A plea of former conviction which follows the form prescribed in Crim. Code Prac. § 164, subsec. 4, is sufficient, and cannot be attacked by demurrer. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 668; Dec. Dig. § 292.*] 2. GAMING (8 94*)-INDICTMENT-VARIANCE— PLACE. the court should limit the conviction of accused In a prosecution for operating a poolroom, to the operation of a poolroom at the place mentioned in the indictment. [Ed. Note. For other cases, see Gaming, Cent. Dig. § 277; Dec. Dig. § 94.*] Appeal from Circuit Court, Campbell County. "Not to be officially reported." Anthony Bernero was convicted of maintaining a public nuisance by operating a poolroom, and he appeals. Reversed. C. L. Raison, Jr., and John B. O'Neil, for appellant. Jas. Breathitt, Atty. Gen., and W. A. Burkamp, for the Commonwealth. BARKER, J. The appellant was indicted by the grand jury of Campbell county, charged with the offense of operating a poolroom, and thereby creating and maintaining a public nuisance. He was tried and found guilty, and his punishment fixed at a fine of $500. Upon this appeal several questions of law are raised by the appellant concerning the proper formation of the grand jury which found the indictment and of the petit jury by which he was tried. All of these questions were decided adversely to his contention in the case of George Ehrlich v. Commonwealth (opinion rendered January 29, 1909) 115 S. W. 797. But we are of opinion that the court erred in sustaining the com BARKER, J. The appellant was indicted by the grand jury of Campbell county, charged with the offense of maintaining a public nuisance by operating a poolroom. He pleaded not guilty to the indictment, but upon a trial the jury found him guilty, and fixed his punishment by a fine of $500. The de |