To

663; Horn v. Broyles [Tenn. Ch. App.], 62 S. W. 297.) overcome this presumption of delivery, appellants urge the fact that the deeds and notes are found in the possession of J. H. Bunnell. It has already been stated that the parties occupied the same house, and as one family. William E. Bunnell died there, and his widow and babe were absent thereafter from the place. Charles R. appears as in sympathy with his father. Thus the fact of actual custody of the papers at the institution of the original suits loses much of its natural weight, and might be easily explained in full accord with the presumption of previous delivery.

So far we have considered this question as if an actual manual delivery of the deeds was necessary. But such is not the law. No particular form of procedure is required to effect a delivery. It is not essential that the paper be actually transferred. If the grantor, when executing it, intends it as a delivery, and this is known to and understood by the grantee, and they treat the estate as having actually passed thereby, it will have that effect, though the instrument be left in the possession of the bargainor. (Washb. Real Prop. 261; Cecil v. Beaver, 28 Iowa, 241, 4 Am. Rep. 174; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; Ward v. Small, 90 Ky. 198, 13 S. W. 1070; Gould v. Day, 94 U. S. 405, 24 L. Ed. 232.) Delivery may be shown by acts without words, or words without acts, or by both combined. (Hughes v. Easten, 4 J. J. Marsh. 573, 20 Am. Dec. 230; Shoptaw v. Ridgway [Ky.], 60 S. W. 723; Martin v. Bates [Ky.], 50 S. W. 38; Ward v. Small, supra.) In addition to the circumstances. related above, the following were shown by the evidence: The grantor, J. H. Bunnell, after the execution of the deeds, appears to have told as many as ten different persons, and at numerous times, both during the lifetime of his son and since his death, that he had given the land (and all his other property) to his boys; that he was not worth one dollar. Some of these conversations were in the presence of his son William E., and one of them on the day the last deed was executed, and after it had been left for record. By six witnesses it is shown that the grantee, William E. Bunnell, after the execution of these deeds. and assignments, claimed the property, and by some of them that he asserted acts of ownership over it. By some of the wit

nesses it was shown that this claim and authority by William E. was in the presence of his father, the latter acquiescing without protest or other negative sign. It was shown by Mrs. Price's deposition that William E. had the actual possession of the notes, and by the deposition of J. M. Leach that when he applied to J. H. Bunnell for a loan he was referred to William E., and that he borrowed the money from William E., executing the note to him. Further, some of the notes inventoried at the arbitration were, on their face, payable to William E. and C. R. Bunnell. There was no relevant evidence to offset the foregoing. Charles R. Bunnell, the other grantee in the deeds and assignments, and a defendant to these actions, failed to testify. In the light of the authorities cited and reviewed, and upon the facts stated, we find, that there was both a delivery and an acceptance of the conveyances and assignments, and that the title had passed to William E. Bunnell for the land described in the deeds as conveyed to him, and for one-half of the other personal property during his lifetime. This being established, there would appear nothing to arbitrate when the agreement was signed. Nor was there in fact an arbitration. At the outset the only matter that could possibly have been in issue, viz., had there been a passing of this title, was surrendered in the agreement by the infant's representatives, and the so-called "arbitrators were empowered to divide her property among a number of persons, many of whom had no semblance of claim upon it, and were not parties to the suits. It possessed none of the features of an arbitration save the name.

2. Nor was it binding upon the infant as a compromise of a doubtful claim, or family settlement. "Agree with thine adversary quickly whiles thou art in the way with him," is a course favored by the courts. So compromises are encouraged. But there must be in reality a controversy, and a basis for it, before it can form the consideration of such a settlement. Necessarily, at last, the right, and, therefore, the law, must be on one side or the other of the controversy, and it would not do to say that the doubtful case must be one concerning which no judicial interpretation has been applied. But, it must be one about which well-informed lawyers and judges may easily differ, and about which the parties themselves do differ. Under the facts

shown in this case, it may be doubted whether there was a basis for such a controversy in fact as would satisfy the rule. are relieved, however, from pursuing that investigation further by the fact that in this State the subject of compromises of infants' property interests has been brought under legislative direction. Article 2, chapter 80, General Statutes (then in force), provided: "If a guardian of an infant, or a committee of an idiot or lunatic, shall believe that he can save the estate or advance the interest of the ward, idiot, or lunatic, by a settlement, in whole or in part, of a controversy concerning the lands of such infant, idiot, or lunatic, by compromise of the matter in suit, he shall have power to do so with the approbation of the court; and all bonds, agreements, sales, and conveyances, by him executed with approbation of the court, in furtherance or execution of such compromise, shall bind the infant, idiot, or lunatic, and their estate; and the conveyances so made shall pass the estate of the idiot, lunatic, or infant." It cannot be said that the permission of the court was obtained before this agreement was entered into on behalf of the infant by her guardian, nor that its terms were ever submitted to the court for its approval, or that it did approve them. The foregoing statute has not been heretofore construed by this court, so far as we are able to find. In Manion v. Railway Co. (99 Ky. 504, 36 S. W. 530), in which the statute was invoked to defeat a compromise out of court by a guardian of his ward's cause of action for personal injury, the court considered that it was not then necessary to construe the statute further than to determine that it did not embrace claims for damages for personal injuries of the infant. The statute, however, in express terms prohibits the compromise by the guardian of controversies concerning the ward's lands, except under the approving inspection of the court. Whatever may have been the common-law right of a guardian in such premises, it is superseded by the legislative act, which must be assumed now to embrace all the law of this State on that particular subject. (Broaddus v. Broaddus, 10 Bush, 299; Hayes v. Insurance Co. [Ill. Supp.], 18 N. E. 322, I L. R. A. 307.) Not having the approbation of the court, the attempted compromise by the guardian was void.

3. The plea of res adjudicata cannot avail appellant, for this suit is brought for the express purpose of setting aside those

judgments and procuring a new trial of those actions. Had appellee ignored the judgments, and sought a recovery independent of the original actions in which they were rendered, the plea would probably have been good. But here is an infant seeking to open up a judgment, and for a new trial under section 518, subsection 8, Civil Code Practice, allowing a new trial of an action "for errors in a judgment, shown by an infant within twelve months after the arriving at full age." The error in the judgment not appearing on the face of the record, it could be presented only in the manner done in this case. Were the plea of res adjudicata applicable in bar, it would defeat the very purpose of the provision of the Code supra.

4. This suit was brought in equity, and, considering its nature and scope, properly so. It showed the chancellor where, whatever may have been the intention of the responsible actors in the various proceedings, an injustice was done to the infant in reference to her legal rights in her property. It invoked the aid of the chancellor in righting that wrong, and to that end appealed to his conscience. Were the plaintiff an adult, the chancellor could withhold all relief till the plaintiff offered to do complete equity to his adversary, without reference to the rules of law, or agree to take the relief sought subject to such equitable condition as the court might impose. Here the plaintiff is an infant, incapable alike of disposing of her property as well as making any valid agreement with reference thereto. However the tender years of this litigant may move the courts to a protecting care of her property rights, they will not be allowed to prevail at the expense of the equities of the other parties; and what would have been required of an adult litigant as his own act, the court will impose on the infant as a condition of its action in her behalf. "They who seek equity must do equity" applies to all litigants alike. Whatever may have been the legal rights of J. H. Bunnell and his wife, and their sons, William E. and C. R., with reference to this property, for the boys to have held it, and denied a home to these old people in the days of their infirmity, would have shocked the conscience as a most unnatural act. We have no reason to suppose that the sons would have done otherwise than to provide the old folks with a home, as was done so long as William E. lived.

The old people were there all the time. We find the widowed mother there. We will not compel them to remove. On the contrary, we adjudge that in good conscience they are entitled to a reasonable, competent support upon and out of the proceeds of that property, so long as they live. Therefore no rents should be charged during the lifetime of J. H. Bunnell. And, so long as his widow survives, her comfortable support must. be a charge upon the land, to be borne equally by Charles R. Bunnell's part and Lillian Bunnell's part. Any permanent improvements made upon William E. Bunnell's portion by Charles R. or J. H. since William E. Bunnell's death should, to the extent its value has been enhanced thereby, be ascertained, and set off against rents accruing since J. H. Bunnell's death. The judgment is reversed to the extent only that it is necessary to conform it to this opinion, and the cause is remanded for such necessary proceedings, not inconsistent herewith, as will carry into effect the foregoing directions.

CHAPMAN VS. CHENEY.

[Supreme Court of Illinois, Oct. 24, 1901; 191 Ill. 574, 61 N. E. 363.]

1. Where testator devised realty to unbegotten grandchildren only in case they should live to the age of thirty, but provided in the same paragraph that in case any such grandchild should die under thirty, leaving issue, such issue should take the parent's share, the devise to grandchildren was not rendered invalid by reason of the fact that the limitation over to great-grandchildren was void as violating the rule against perpetuities.

2. A clause in a will devising the fee of all testator's estate to unborn children of his son, but providing that no such grandchild should acquire an interest or any estate of inheritance unless he should live to the age of thirty, and in case of death before that age no interest in the estate should be thereby vested in any person, does not make the vesting of any interest whatever in the grandchildren