the child's clothing, furnished by the father, generally belongs to the father, yet, if the child should purchase clothing with his own money, the clothing would belong to the child.

Error from Doniphan county.

W. D. Webb, for plaintiff in error.

John Doniphan, for defendant in error.

VALENTINE, J. This was a proceeding instituted originally in the probate court of Doniphan county, Kansas, by the St. Joseph & Western Railroad Company, to procure the revocation of the letters of administration granted by said court on December 27, 1881, to De Witt C. Wheeler, on the estate of Frank Wheeler, deceased. final hearing of the case in the probate court that court overruled the application of the railroad company, and the railroad company then appealed to the district court of Doniphan county. In the district court the case was tried before the court and a jury, upon the evidence introduced and submitted by the respective parties, and upon such evidence special findings were made, as hereafter stated. By the consent of parties no instructions were given to the jury, and no general verdict was found, but the jury simply gave answers to certain special questions of fact submitted to them by the court and the parties. The special questions of fact, with the answers given, are as follows:

"Question 1. Did Frank Wheeler have any money in his own possession at the time of his death? Answer. No. Q. 2. If question 1 is answered in the affirmative, how and from which did he obtain the money? A. Q.3. Did said Frank Wheeler have on deposit with his mother any money at the time of his death? If so, how much? A. Yes; $3.50. Q.4. If question 3 is answered in the affirmative, how and from whom did Frank Wheeler obtain said money? A. For work for his father at Mrs. Aberlie's, $2.50; and for working for Hazenbaugh, $1. Q. 5. Aside from the foregoing, did any person owe said Frank Wheeler anything at the time of his death? A. Yes. Q. 6. If question 5 is answered in the affirmative, who was indebted to said Frank Wheeler, and what was the indebtedness for? A. Moore and Hazenbaugh, for weeding onions and hanging paper. Q. 7. Had said Frank Wheeler, at the time of his death, any wearing apparel that he had paid for himself? A. Yes. Q. 8. If question 7 is answered in the affirmative, what was the value of said clothing? A. $5. Q. 9. If question 7 is answered in the affirmative, how and from whom did said Frank Wheeler obtain the money that he paid for such clothing? A. For playing in the band. Q. 10. Did said Frank Wheeler, at the time of his death, have any other wearing apparel than that heretofore mentioned? A. Yes. Q. 11. If question 10 is answered in the affirmative, what was the value of such clothing? A. Don't know. Q. 12. If question 10 is answered in the affirmative, how and from whom did he obtain such clothing, or the money to pay for the same? Don't know. Q. 13. Had said Frank Wheeler, at the time of his death, an interest in the Troy band? A. Yes. Q. 14. If question 13 is answered in the affirmative, how and from whom did said Frank Wheeler obtain said interest? A. From his father and Frank Berry. Q. 15. If question 13 is answered in

A.

the affirmative, what was the cash value of said interest? A. $50. Q. 16. If question 13 is answered in the affirmative, did said Frank Wheeler have an exclusive interest in any particular instrument, or an interest in common with several others in all the instruments and the business of the band? A. Interest in common. Q. 17. Did said Frank Wheeler, at the time of his death, have any other property, interest, or money or credits than heretofore mentioned? A. No. Q. 18. If question 17 is answered in the affirmative, what were said interests or money or credits? Q. 19. If question 17

A.

is answered in the affirmative, how and from whom were such interests or money or credits obtained? A. Q. 20. Did the father of said Frank Wheeler ever release his time, or relinquish his rights to the time and service, of said Frank Wheeler while a minor? A. Yes. Q. 21. If question 20 is answered in the affirmative, state when and how? 4. When weeding onions."

No exception was taken to any of these findings of the jury, and no motion was made for a new trial, but both parties moved for judgment upon the findings, and the court overruled the motion of Wheeler, and sustained the motion of the railroad company, and rendered judgment in favor of the railroad company and against Wheeler, revoking Wheeler's letters of administration; and Wheeler, as plaintiff in error, now brings the case to this court and asks for a reversal of said judgment.

If we pass over the questions whether this case was rightfully and regularly brought in the probate court, and was rightfully and regularly appealed to the district court, then the only other question involved in the case is whether the facts as found by the jury will authorize a judgment in favor of the railroad company and against the plaintiff in error, De Witt C. Wheeler, revoking his letters of administration. No facts were admitted by the pleadings; no agreed statement of facts was made or filed; no exception was taken to any of the findings made by the jury; no request was made for other or additional findings; and no motion was made for a new trial; hence, we cannot take into consideration any facts other than those found by the jury, nor can we review the evidence. Really, however, the evidence supports the findings of the jury. Presumptively, the letters of administration were properly issued; presumptively, they were valid in their inception; and, presumptively, they are valid still, unless the facts found by the jury clearly and affirmatively show the contrary; and they cannot be revoked unless the facts found by the jury clearly and affirmatively show that they ought to be revoked, and that they ought to be revoked at the instance of the railroad company. Now, under the facts of the case as found by the jury, what authority has the railroad company to ask that Wheeler's letters of administration should be revoked? We suppose that Wheeler, as administrator, was about to sue the railroad company for wrongfully causing the death of his son, Frank Wheeler, the intestate; but the record does not show any such thing. But even if this were shown by the record, there would still be a question whether the railroad company had any right to interfere or not. Possibly it would. But, passing over this question, do the facts of the case as found by the.

jury show that the letters of administration ought to be revoked at the instance of any person or corporation? Now, taking the facts of the case as they were found by the jury, there is no ground upon which to revoke the letters of administration, unless it be upon the ground that the deceased, Frank Wheeler, did not at his death leave any estate upon which letters of administration could be granted. Everything else necessary for the purpose of issuing the letters of administration existed as a fact, and nothing has transpired since that would authorize their revocation. It is true, as a fact, that Frank Wheeler, at the time of his death, was a minor, thirteen years and five months old, residing with his father, the present plaintiff in error, in Doniphan county, Kansas; but these facts, of themselves, do not prevent the issuance of letters of administration, nor render their issuance void, nor authorize their revocation if issued. Letters of administration may be granted upon the estate of a minor as well as upon the estate of any other person. But it is claimed in this case that Frank Wheeler left no estate, and that the estate supposed to have been left by him really belonged to his father; but the jury found otherwise; and, under the circumstances of the case, we cannot say that the findings of the jury are erroneous. As a matter of law a minor may own property the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in the way of support, such as clothing, for instance, would still belong to the father and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would, undoubtedly, become the property of the child. Hillebrant v. Brewer, 6 Tex. 45; Grangiac v. Arden, 10 Johns. (N. Y.) 293. Also, while the child's clothing, furnished by the father. generally belongs to the father, yet, if the child should purchase clothing with his own money, the clothing would evidently belong to the child. Dickinson v. Winchester, 58 Mass. (4 Cush.) 114, 118, 119.

We cannot say, from the facts as found by the jury, that the letters of administration issued to the plaintiff in error, Wheeler, ought tc be revoked. On the contrary, it would seem to us from such facts that Frank Wheeler, at his death, left a sufficient estate to legally uphold such letters of administration. The judgment of the district court will therefore be reversed, and cause remanded for further proceedings.

(All the justices concurring.)

(31 Kan. 645)

ATCHISON, T. & S. F. R. Co. v. DAVIS.

Filed March 6, 1884.

Where the owner of a colt confines it in an inclosure surrounded by a sufficient and safe fence, and in the night-time, without any fault or negligence on his part, a gate is opened and left open through the misconduct or negligence of some unknown party, and through this open gate the colt escapes onto the track of a railroad company, held, that the company is bound to use ordinary care to prevent any injury to such colt from its trains. U. P. R. Co. v. Rollins, 5 Kan. 167, distir guished.

Error from Lyon county.

Geo. R. Peck, A. A. Hurd, W. C. Campbell, and C. N. Sterry, for plaintiff in error.

Scott & Lynn, for defendant in error.

BREWER, J. This was an action brought by defendant in error (plaintiff below) to recover the value of a colt killed by being struck by a passing train on defendant's railroad. The action was commenced before a justice of the peace, and, after judgment, appealed to the district court, where the case was tried before a jury. The case was tried on the bill of particulars filed before the justice, and without any new or additional pleadings. The verdict and the judgment were in favor of the plaintiff, and defendant brings the case to this court.

The bill of particulars alleged that the colt was killed through the negligence of defendant, and also that the road was not fenced at the place of killing. The latter charge was not supported by the testimony, and was disregarded by the jury. The case was therefore disposed of upon the theory that the defendant was guilty of actual negligence in the killing of the colt. Among the undisputed facts are these: The colt was kept in the fair grounds just west of Emporia, in Lyon county. Between the fair grounds and the railroad track was a fence, in which, about midway, was a gate used principally during fair-time by persons passing backwards and forwards from trains to the fair grounds. At times when the fair was not being held, the gate was occasionally left open by tramps passing up and down the railroad track, and other persons. During the night prior to the injury complained of, in some undiscovered way, the gate was opened and left open. Early in the morning the colt, with three or four others which were running loose in the fair grounds, passed through this open gate onto the defendant's right of way. While on the right of way an emigrant train came from the west. The other colts kept off the track, but this one got onto it and ran eastward towards the city of Emporia, followed by the train until near

the east line of the fair grounds, when, its course being stopped by an open bridge, it was struck by the train and killed.

No negligence can be imputed to the defendant in the manner in which the colt escaped from the fair-grounds and got onto the right of way, and the question, therefore, was whether there was negligence in the management of the train. The jury answered this question in the affirmative, and, while the testimony was not absolutely conclusive, there was ample to warrant the answer. It seems probable that a little effort and care on the part of the persons in charge of the train might have avoided the accident, so that really the only substantial question arises on the rulings of the court in respect to the instructions. The court refused an instruction to the effect that the defendant was not liable unless it killed the colt willfully, wantonly, or through gross negligence, and instructed the jury, substantially, that it was liable for ordinary negligence. While some other criticisms are placed upon the instruction, this is the pivotal question. If the ruling was right in this respect, the other matters referred to must be regarded as immaterial, and the judgment must stand; if not, the judgment must be reversed.

Counsel for the company rely largely on the case of U. P. R. Co. v. Rollins, 5 Kan. 167, in which the company was held liable only for gross negligence. They insist that the principles there laid down have been since frequently affirmed by this court, and are controlling and decisive in the case at bar. We think not. Without intending any departure from those principles, we think that case is not in point. There, the plaintiff living in the vicinity of the railroad track turned his cattle loose on uninclosed fields, from which they strayed onto the railroad track and were killed by a passing train. In so doing he was chargeable with some blame. He knew the unfenced condition of the road, knew of the passing trains, and knew that his cattle turned loose might very naturally wander in the direction of the track. Hence, it could not be said that he was entirely without fault. But in the case at bar the plaintiff was without any fault. He took all reasonable precautions to confine his colt; placed it in a field inclosed by a secure and safe fence. Without any fault on his part, and through the misconduct or negligence of some unknown person, in the night-time the gate was left open, and through it the animal wandered onto defendant's track. While, technically, the animal was a trespasser, yet he was so trespassing after reasonable precautions had been taken by the plaintiff, and without any fault on his part. Under those circumstances the company was bound to use ordinary care to prevent injury.

The case of Railroad Co. v. Brown, 14 Kan. 469, is in its facts very much in point. There the plaintiff's stock had been by him shut up in his barn, and without any fault on his part, in the night-time, got out therefrom, and strayed onto the railroad track and were killed. In that case the company was held liable. It is true, this particular