a poor quality and could not be brought into competition with other coal on the market. It could not be sold at a price that made its mining profitable. The evidence abundantly establishes this fact, and, under the terms of the lease, appellant was only required to operate the mine so long as it could dispose of the coal at the market prices prevailing from time to time. When, therefore, it became apparent that the coal could not be disposed of, even at less than the market price which good coal was bringing at that time, appellant was not bound by the terms of his lease to longer operate the mine, and no cause of complaint is afforded appellees because they ceased operating it under such circumstances. Appellant could not be compelled, under the terms of the contract, to operate this mine when the coal which was being produced was of such an inferior quality as that it could only be sold with difficulty, and then at a reduced price. No ground of complaint being afforded because appellant ceased to operate the mine, it is unnecessary to notice further at length the claim for damages which appellees alleged they sustained because they failed to realize the royalties from the sale of coal which they might have realized had the mine proven a success and been operated as it was contemplated it would be when the lease was entered into. See Givens' Extr. v. Providens Coal Co., 22 Rep., 1217.

The further claim by appellees, that at the time appellant was running the mine there was a balance due them on royalties for coal that had been mined at that time, is not supported by the evidence. On the contrary, the decided weight of the evidence shows that when appellant ceased to operate the mine, it settled with appellees in full, both for royalties and house rent. The testimony of appellee Parks upon this point is very vague and unsatisfactory, and not supported by that of any other witness. Whereas, the testimony of the bookkeeper is direct and positive, and it is accompanied by a receipt, signed by Parks in his own right and as agent for his wife, and this receipt shows that it is in full for mine and house rent to May 18, 1905. The mine was not operated after that date. Appellant had made settlements for royalty and rent in this manner from time to time while the mine was being operated, and no proof is offered by appellees tending to show that the receipt was not for what it purports to be, or that any mistake was made at that time in the estimates of the amounts

due them. Under such circumstances the statement in the receipt, that it was a settlement of royalties and rents to that date, controls, and the chancellor was not justified in allowing anything upon this claim.

The other claims attempted to be asserted are for damages to the crops of appellees growing on their five hundred acre farm, of which the leased premises were a part; for injury to their roads on this farm and the approaches to certain entries of the mine; and for damage to growing timber, and for cutting timber above the size authorized by the lease. The facts upon which these claims for damage are asserted are not well or definitely pleaded, and the evidence offered in support to these claims is not at all satisfactory. All of these acts of damage to the approaches to the mine, the timber and the crops, if committed at all, must have been done at a time before the period that Parks had charge of the mine, and as he never made any complaint at any time to the company that they were being injured, we conclude that these injuries were more imaginary than real-in fact, they appear to be the result of an afterthought; and had appellant not ceased to spend money in an effort to make the mine a success, no such claims would ever have been asserted.

The complaint that the mine was so worked, by pulling stumps, etc., as to damage appellees and render portions of the mine unsuitable or unsafe for further use as a mine, is not supported by the evidence. On the contrary, the weight of the evidence shows that the mine was properly worked, and no stumps pulled from the main entries or passageways. Such stumps as were pulled were pulled from rooms of the mine that had been worked out. The mine was at all times worked under the management of competent men, some of whom -Eldridge in particular-were tacitly recommended by appellee Parks, and the failure of the company to make it a success was, as stated, due to the fact that the coal was not of a good, merchantable quality. There were faults in the coal veins that added materially to the cost of working, and aided in making the successful operation of the mine practically an impossibility.

The chancellor failed to state the ground upon which he rested his judgment. But he evidently proceeded upon the idea that, because the company failed to continue to operate the mine after it had been demonstrated that it could not be made a success, appellees had been

damaged to the extent of his finding by their loss of royalties. He lost sight of the fact that the company was not bound to operate the mine if the output could not be sold from time to time as other coal, and that when it was thoroughly demonstrated that this could not be done, the company was absolved from further liability to work it. Aside from this, when appellees took possession of the mine themselves, their right to demand pay from the company for failure to operate it ceased,

Without elaboration, we are satisfied, after a consideration of the lease, pleadings and proof, that appellees were not entitled to recover anything, and their petition should have been dismissed. Judgment reversed and cause remanded for further proceedings consistent herewith.

Deeds-Life

Wilson, et al. v. Moore.

(Decided February 8, 1912.)

Appeal from Owsley Circuit Court.

Estate

Remainder-Construction.-Under a deed by which the property is conveyed to certain trustees "in trust for the said Easter Rose and the heirs of her body," followed by a warranty of title to the trustees "in trust for the said Easter Rose and the heirs of her body forever," subject to the condition that in the event she marries or arrives at age, "she is to have the uninterrupted possession of said property during her natural life, and then to descend to the heirs of her body forever, and should she depart this life without issue, all of the said property to revert back to her surviving brothers and sisters," Easter Rose takes only a life estate; the rule being that the court will look to the whole instrument to determine its meaning.

E. E. HOGG for appellants.

GOURLEY, REDWINE & GOURLEY for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY-COMMISSIONER-Reversing.

Appellants, America Wilson and others, who are the only children of Easter Wilson, formerly Easter Rose, and Samuel Wilson and others who are the only children of Ezekiel Wilson, a deceased son of Easter Wilson,

brought this action against appellee, H. C. Moore, to recover two tracts of land situated in Owsley county, Kentucky. It appears from the petition that their mother and father conveyed the land to appellee. Their mother, Easter Wilson, died in the spring of 1908. They base their right to recover on the fact that under the deed hereinafter set out their mother took only a life estate in the property in controversy, and that on her death it descended to them as remaindermen. A demurrer was sustained to the petition, and the petition dismissed. From that judgment this appeal is prosecuted.

The controversy depends on the proper construction of the deed, which omitting the description of a portion of the lands, is as follows:

"This indenture made and entered into this 11th day of January in the year of our Lord 1845, by and between Robert Rose and Easter Rose, his wife, of the county of Owsley and State of Kentucky, of the one part and James R. Rose, Robert W. Rose and Gideon Chambers (in trust for Easter Rose, an infant under the age of twenty-one years) of the other part:

"Witnesseth: That the said Robert Rose and wife for and in consideration of the natural love and affection they bear towards their daughter, the said Easter Rose, and for the further consideration of one dollar to them in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained and sold and by these presents doth grant, bargain and sell unto the said parties of the second part in trust for the said Easter Rose and the heirs of her body, the following tract or body of land, to-wit: (Here follows description of one tract).

Also all the and held by Robert Rose on the left hand fork of Meadow Creek, to-wit: On the Wolf pen fork and road fork of said fork. The said Robert Rose and wife also hereby convey to the said parties of the second part in trust for the said Easter Rose one hundred and thirty-five dollars worth of personal property to come out of the estate of Robert Rose, which together with the lands herein named, is hereby conveyed to said trustees in trust for the said Easter Rose as her full share and portion of the estate, both real and personal, of the said Robert Rose, and the said Robert Rose and Easter Rose, his wife, doth hereby warrant and will forever defend the title to said property to the said

James R. Rose, Robert W. Rose and Gideon Chambers in trust for the said Easter Rose and the heirs of her body forever, subject however, to the following conditions, to-wit: The said Robert Rose hereby reserves the right and possession of the said $135 worth of personal property until the said Easter Rose shall arrive at the age of twenty-one years, if he should live so long, but if he should die before that time, then the said trustees are to have the said amount of $135 worth of personal property out of said estate, until she arrives at the age of twenty-one years, or marries, and when either of the events happens, she is to have the uninterrupted possession of said property for and during her natural life, and then to descend to the heirs of her body forever, and should she depart this life without issue, all of the said property to revert back to her surviving brothers and sisters.

"In testimony whereof, the said Robert Rose and Easter, his wife, hath hereunto set their hands, affixed their seals the day and year aforesaid."

Counsel for appellee contend that the judgment below was proper under the rule laid down in Ratliffs, etc., v. Marrs, etc., 87 Ky. 26, where it was held that if there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former. While this case has never been overruled, the tendency of the more recent opinions has been to relax the strictness of the technical rule of construction therein announced, and to construe a deed according to the intention of the grantor as gathered from the whole instrument. Thus in Dinger v. Lucken, et al., 143 Ky., 850, this court said:

"The rule is that where by a deed a fee is granted, and the deed as a whole shows an intention to vest the grantee with a fee, an attempted limitation upon the fee will be disregarded. But in all cases, the effect of the deed turns on its proper construction when read as a whole; and if upon the whole instrument, it appears that the grantor's intention was to vest a less estate than a fee in the grantee, that intention will be carried into effect; for deeds, like other instruments, must be construed according to the intention of the parties where that intention is sufficiently expressed in the instrument."

And in Atkins v. Baker, 112 Ky. 877, the court held that in construing a deed, all parts of the instrument