a track ahead of a train that it does not devolve upon those in charge of the train to immediately stop it or even slacken its speed, the trainmen having the right to assume, under ordinary conditions, that the person would leave the track before the train reached him; but it has also held that it is a question for the jury to determine whether the trainmen exercised ordinary care to avoid the injury after discovering his presence on the track."

This is the question in the instant case. It was for the jury, under the circumstances presented by the record, to say whether the engineer exercised ordinary care to avoid the injury after he was aware of decedent's presence and demeanor on the track.

Instruction No. 1, of which chief complaint is made, is a clear statement of the law governing this case. The first part of said instruction is as follows:

"No. 1. Gentlemen of the jury: The plaintiff's intestate, Condy Taylor, was at the time of his injury a trespasser and those in charge of the train owed him no duty until his peril was actually discovered by them, and although the engineer saw the decedent in front of the engine at a point so far distant that he was not in any immediate danger, the engineer was not required to take steps to stop the train or to slacken its speed, but had the right to assume that the decedent with due regard for his own safety would leave the track in time to avoid the injury. But it was the duty of the engineer in charge of the train to slacken the speed of the train and to use all reasonable means at his command to avoid injuring the decedent when he became aware that the decedent did not intend to leave the track."

Defendant concedes the correctness of this part of the instruction, but insists the court erred in incorporating in said instruction the second literary paragraph thereof, which is as follows:

"Now if you shall believe from the evidence that after the engineer in charge of the train became aware of the fact that the decedent did not intend to leave the track and his position was dangerous or perilous, and failed to use ordinary care to avoid striking the decedent, and as a result thereof he was struck and killed at a time when he was using ordinary care for his own safety, then you ought to find for the plaintiff. Unless you so believe from the evidence then you ought to find for the defendant."

The vice of this criticism lies in the fact that defendant ignores entirely the testimony of the witness Frances Farmer.

Finding nothing in the record authorizing a reversal of the judgment same must be and is accordingly affirmed.

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Shelby v. Shelby.

(Decided June 10, 1921.)

Appeal from Lincoln Circuit Court.

Partition-Nature and Scope of Remedy.-The right of partition between joint owners of property, either real or personal, is a right favored by the law and it will not be denied except upon grounds clearly proven and apparent; hence the muniment of title of the joint owners will not be construed as forbidding partition when it is equally susceptible of a different construction. In such cases the construction favoring partition will be adopted.

Reformation of Instruments-Proceedings and Relief.-A writing will not be reformed, by the insertion of a clause which was alleged to have been left out by oversight or mistake, unless the alleged oversight or mistake as well as the matter proposed to be inserted is proven by clear and convincing evidence. Contracts-Contemporaneous Construction.-The rule of contemporaneous construction is never invoked unless the language to be construed is indefinite and ambiguous and is susceptible to more than one interpretation; but even then the conduct of the parties will not necessarily be characterized as a construction of the writing by them, if during the time there was no occasion to choose between one construction and another, and by common consent the parties acted in the manner they did without any thought of a different interpretation.

CHAS. E. RODES, GEO. E. STONE, J. B. PAXTON, NELSON D. RODES and W. S. LAWWILL for appellant.

K. I. ALCORN and P. M. McROBERTS for appellee.

OPINION OF THE COURT BY JUDGE THOMAS-Reversing. This case is another of the long list of examples demonstrating the weakness, frailties and shortcomings of human nature and it reveals a story both sad and pathetic. Plaintiff and appellant, Mary P. Shelby, and defendant and appellee, Florence M. Shelby, are maiden sisters, the one being about 58 years of age and the other

about 43 years of age. The property involved is about six hundred acres of land in Lincoln county upon which is situated the historical old mansion of Kentucky's first governor, and plaintiff and defendant are lineal descendants of Isaac Shelby. No doubt if the premises involved could speak there would be many an unwritten story told concerning the life and conduct of that sturdy pioneer. The old fertile farm and the mansion upon it are and have long been known as "Arcadia" and were owned by Mary Steele Shelby, the mother of plaintiff and defendant, who died in the early part of 1895, having executed her will in 1892, which with some codicils was probated by the Lincoln county court on April 8, 1895. By the second clause of her will testatrix devised to her executor (Isaac Shelby, Jr.) all of the above land and the mansion house in trust with the imposed duty "To permit those of my children who are unmarried at the time of my death to occupy the residence and all the buildings used in connection therewith on the farm known as "Arcadia" with so much of the adjoining land as he thinks necessary as a home and without rent or charge therefor until my youngest child shall arrive at the age of twenty-one years. Or if it dies before, until the period of time at which it would have reached that age, if it had lived, and the rest and residue of the lands to rent out in such way as he thinks best," etc. Out of the proceeds of the rental the trustee was directed to pay taxes, repairs and other necessary expenses, including a reasonable compensation for his services, and with the balance he was directed to provide, maintain and support the unmarried children of the testatrix who were given the right to occupy "Arcadia" until such time as the youngest one would arrive at twenty-one years of age (changed to twenty-five years in a codicil), and the trustee was directed to permit such occupying children to have and to use the household and kitchen furniture of every sort, and all the carriages and buggies on hand, and to have set apart for their use such number of cows and horses as the trustee, thought necessary, and he was directed to thereafter supply "such cows and horses as he thinks they (her children) need, as those set apart may die or become worthless and as the carriages and buggies wear out he will replace them with new." If such property was not on hand at the death of the testatrix the trustee was directed to supply it and he was further directed to supply an instructor or instructress to teach the younger children at the residence, and,

"He will provide said unmarried children as far as the means will allow with a comfortable and liberal support, providing not for actual necessities, but for such reasonable comforts and pleasures, including traveling expenses as they may desire and he approves." He was authorized to invest the surplus, if any, in income producing properties and if necessary to use the income from it in the maintenance and support of the occupants of "Arcadia" in the manner directed by the will. It was further provided in the same clause of the will that "upon the marriage of any of said children before the period above mentioned arrives, such child is not thereafter to be supported by the executor," and upon the arrival of the period when the youngest child would become twenty-one years of age (twenty-five by a codicil) he was directed to sell the property and divide the net proceeds of the estate of testatrix among her living children and the descendants, if any, of those that were dead.

At the time of the death of testatrix she had thirteen children, six of whom were unmarried daughters, and they jointly occupied the old Shelby home "Arcadia" under the provisions of the will of their mother until the 14th day of January, 1898, when the children, except Susan S. Mason, who were all adults, executed what is referred to in the record as a "settlement deed," in which deed the married children of testatrix, who under the terms of her will were not given the right to occupy "Arcadia" were designated as "grantors" and the six unmarried daughters, who were at that time jointly occupying the property, were styled "grantees," but the instrument was executed and acknowledged by all of the grantors and all the grantees. By its terms the grantees were extended the right to occupy the premises during their respective lives, or until they married, and when the last one married or died in spinsterhood, the property should be sold and the proceeds divided among the heirs as therein specified. It was stipulated that when any of the grantees married the others should execute their joint note to her for the sum of $2,000.00, which was to be a lien upon the land but was not to be enforced until the last daughter died or married, and when any of the grantees married she should no longer have the right to occupy the premises but that her right should thereby cease and in the language of the deed "pass and belong to the other grantees then remaining alive and unmarried."

One of the considerations for that deed is stated therein to be a "desire to carry out the spirit and extend the gracious and benevolent provisions of the will of their said mother, who in order to secure a home for her unmarried children provided in her will that they should occupy the said land free of charge until the youngest should arrive at the age of twenty-five years, and whereas the grantors and grantees, desire to preserve and keep in the family the said land, the old family homestead and above all desire to secure the grantees a comfortabe home and support as long as they remained unmarried and alive." Mrs. Mason has died since the execution of the settlement deed, but if she left any children the record does not disclose the fact, and it appears that she executed a will in which she practicaly ratified the deed. At any rate the fact of her not executing it is not involved in this controversy.

The unmarried daughters, after the execution of the .settlement deed, jointly occupied the premises as therein provided for until some time in 1917, when there were only three of them unmarried, the plaintiff, the defendant and Miss R. Tevis Shelby, at which time the latter died, leaving only plaintiff and defendant possessing the right of occupancy under the terms of the deed. It seems that for some time prior to the death of Miss Tevis Shelby there grew up an estrangement and some bitter feeling between plaintiff and defendant, who seem to possess dispositions more or less antagonistic. There is no doubt but that for some time prior to her death Miss Tevis Shelby was the the tie that held together the more or less warring sisters. Her death removed the only soothing influence which made the joint occupancy of the premises by plaintiff and defendant even tolerable, and after that time the breach widened between them until it culminated in unfortunate personal encounters, and it is shown by the record that because of their different natures and temperaments, and because of their diverging views as to the superintendency and management of the jointly occupied property it is impossible to continue such occupancy with any degree of peace or comfort to either of them, to say nothing of their personal safety. Under these circumstances plaintiff temporarily abandoned the premises from about the first of the year 1918 until the first of July following, when she returned, and on August 8, 1918, she filed this action in the Lincoln circuit