and the Milling Company was liable in damages to Vaughn. He had a right in his an came due, Vaughn declined to pay it, and suit was brought thereon by the company, but before a trial could be had the other note be-swer to set up his counterclaim for such damcame due, and another suit was brought on it against Vaughn. To the first suit he filed an answer and counterclaim, in which he traversed certain material averments of the petition, and averred that in making the sale of the mill to him the plaintiffs represented and warranted that said mill was in first-class shape and condition, and that it would do everything a new Midget mill would do, and that it would make the same grade of flour, and as much flour to the bushel of wheat as the new Midget mill would make; that all the repairs it would need were replacement of the bolting cloths, and that all of the said representations and warranties were false; but he, not knowing of this falsity, relied upon the representations. The two actions were consolidated and heard together. A trial resulted in a verdict on both notes in favor of the company, to which was added: "We find for defendant [Vaughn] the sum of $200, the cost of equipping said mill to make it come up to the contract." ages. We think, however, that the measure of damages to which he was entitled did not include the loss which he incidentally suffered by reason of the mill making too much bran, nor can he have a recovery for the cost of the middling machine, or the sums expended by him in employing expert millwrights to correct the defects in the mill. The correct measure of damages is the difference between the flour mill in the condition in which it was delivered to him and its value in the condition in which it was warranted to be. He chose by his conduct as well as his counterclaim to retain the mill and to sue for damages for breach of warranty. The defect in the mill which he charges to be a breach of the warranty is its failure to produce as many pounds of highclass flour per bushel of wheat as a new Midget mill would produce under like conditions and circumstances. It therefore became a question of fact for the determination of the jury whether the mill as sold and delivered to appellant, Judgment being entered in accordance with Vaughn, was of less efficiency than it was the verdict, Vaughn appeals, and asks a re- warranted to be by the sellers, and, if so, of versal of the judgment on the ground that how much less value was the mill in the conthe evidence offered by him as to the extent dition in which it was sold and delivered by of his damages was uncontradicted, that the the company to Vaughn than it would have court's instructions were equivalent to a di- been, had it been in the condition which it was rection to the jury to find for him the full represented and warranted to be by the sellamount thereof, and that the jury disregard-ers. The jury heard all the facts with refered both the evidence and the instructions.ence to its defective condition, the kind of The evidence shows that the mill which flour it made, and the amount of bran that the Shady Grove Milling Company sold to ap-resulted, and found that the warranty had pellant, Vaughn, had been in use about two years, and that after he purchased it he took it down and moved it to a new location and reset it; that the mill made fine, high quality flour, but that for some reason unknown to Vaughn, and apparently undiscoverable by experts whom Vaughn employed to examine the mill and make repairs, would not properly separate the flour from the bran, but left a large a quantity of the heart of the wheat in the bran; that bran was selling at about $3 per hundred, while flour was selling at $6 per hundred, and as a consequence Vaughn lost several hundred dollars. He also expended about $300 in employing expert millwrights to examine and repair the mill. Failing in this, he bought and installed a mid-gether with the cash value of the defective dling machine, which not only brought the Midget mill up to standard on production of high-class flour, but made it even better than the warranty on which he relies for recovery of damages in this action. He operated the mill several months before he installed the middling machine. been breached; that the mill was not as represented and warranted by the sellers, but that it was defective, and was in fact worth $200 less than a mill of the kind and character this one was warranted to be. "A warranty on the sale of a chattel is, in legal effect, a promise that the subject of sale corresponds with the warranty, in soundness or other quality to which it relates, and is always so stated in the declaration when this is technically framed. It naturally follows that, if the subject proves defective within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good. That cannot be done, except by paying to the buyer such sum as, to article, shall amount to what it would have been worth if the defect had not existed." 24 R. C. L. p. 254; Hauss v. Surran, 168 Ky. 686, 182 S. W. 927, L. R. A. 1916D, 997 [3] Appellant was not entitled to a rescission of the contract, for he did not offer to return the mill for many weeks after he dis[1, 2] If the mill was defective, and would covered its defective condition, if, indeed, he not produce as many pounds of high-grade ever offered to return it. Church v. Wright flour from a bushel of wheat as a new Mid-Machine Co., 190 Ky. 561, 227 S. W. 1003. get mill produced, the warranty, if made as [4] The trial court erred in its instructions contended by appellant, Vaughn, was broken, to the jury, but this error was on the side (239 S.W.) Frank E. Daugherty and John A. Fulton, both of Bardstown, for appellants. Roberts & Pendergrass, of Beattyville, for appellees. of appellant, Vaughn, and of this he cannot | From a judgment that certain money was complain. The jury should not have been corpus of a trust estate, defendants appeal. told that appellant, Vaughn, was entitled to Affirmed. recover for the loss which he says he sustained by reason of the excessive production of bran by the mill, or for expenses incurred in employing expert millwrights to repair the mill, nor for the cost of the middling machine, for all these things were incidental and too remote; but he was entitled to recover damages in a lump sum for the difference in the value of the machine which was sold and delivered to him, and the machine which they represented and warranted it to be, and no more. Carson-Muse Lumber Co. v. Fairbanks, Morse & Co., 151 Ky. 404, 152 S. W. 256; Fairbanks, Morse & Co. v. Hooper, 147 Ky. 154, 143 S. W. 1025. The evidence submitted to the jury was sufficient to warrant and sustain the verdict. The judgment is therefore affirmed. EAGER'S GUARDIAN et al. v. POL LARD et al. CLARKE, J. [1] This is an action to construe the will of T. T. Roberts, deceased, and the only question raised upon this appeal is whether certain funds in the hands of O. H. Pollard, trustee under the will, are distributable as income, or constitute a part of the corpus of the trust estate. The trust estate at the beginning consisted of about 800 acres of land in Lee county, and probably other lands with which we are not now concerned; and the will in explicit terms gives the trustee power to sell and convey same whenever in his judgment it is expedient to do so. The amount and source of the funds involved are not otherwise explained than as set forth in the petition, to wit: "Plaintiff says that by virtue of the authority, and acting under the authority and powers (Court of Appeals of Kentucky. March 24, granted him in said will, he has sold and con 1922.) 1. Trusts 272(1)—Proceeds of sale of oil in place under land held part of the corpus of trust estate. Where a trustee under a will in pursuance of power to sell and convey sold oil in place under the land, in view of a clause in the will that money from sale of the estate should be invested, and only the income paid to the cestui que trust, the proceeds, regardless of the fact that the purchase price was to be partly paid in oil, were a part of the corpus of the estate. 2. Trusts 272(1)-Royalties from oil wells on trust property are a part of the corpus of the trust estate. Royalties derived from oil wells opened up on land after the death of the owner, and not in pursuance of a contract executed by him, usually are considered as part of the corpus of the estate, and not income therefrom, as between the life tenants and remaindermen. veyed all the oil and gas, excepting the royalty hereinafter mentioned in, on, and under the land herein above described, and as a consideration for said sale he received the sum of $5,637.50; that by the terms of conveyance it was further provided that said property should be developed by drilling thereon for oil and gas, and that the plaintiff should receive, as a part of the consideration for said sale, the additional sum of one-eighth of all the oil produced and saved from tracts of land, to be delivered free of cost into tanks and pipe lines to which wells might be connected. "Plaintiff says that prior to said sale he entered into a drilling contract, whereby in consideration of $640 paid plaintiff he sold the privilege of drilling for oil and gas upon said property for a stipulated period, which said contract was subsequently forfeited to plaintiff as trustee." As to the first sum, $5,637.50, being a part of the corpus of the trust estate rather than 3. Trusts 272(1)-Money forfeited to trus-income therefrom, there does not seem to us tee on contract to drill for oil held a part of corpus of trust estate. Where a trustee under a will with power to dispose of the trust estate, was directed to invest the proceeds of property sold and pay the cestui que trust only the income during the trust period, money paid to the trustee on an option to take oil from the land which was never exercised, was a part of the corpus of the trust estate, since it came from a contract for sale of part of the trust estate. Appeal from Circuit Court, Lee County. Action by O. H. Pollard and others against Imogene Eager's guardian and others to construe the will of T. T. Roberts, deceased. minerals in land are real estate, and can be any doubt. We uniformly have held that sold in place separately from the surface, and that separate and distinct estates in the land are thereby created. Kennedy v. Hicks, 180 Ky. 563, 203 S. W. 318; Crain v. West, 191 Ky. 1, 229 S. W. 51. [2] According to the undenied allegations of the petition, this sum was derived by the trustee from such a sale made by him in the exercise of the power vested in him by the will. That the consideration therefor was in part oil to be delivered by the grantee after same had been extracted from the land, rather than money, does not alter the fact that the sums thus realized are proceeds of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a sale of part of the land, rather than income derived from its use merely. Royalties derived from oil wells opened up upon land after the death of owner, and not in pursuance of a contract executed by him, usually are considered as part of the corpus of the estate, and not as income therefrom, as te tween life tenants and the remaindermen. Crain v. West, supra; Meredith v. Meredith, 193 Ky. 192, 235 S. W. 757. Mineral wells that are opened up after the death of the fee owner, but in pursuance of an express or implied power conferred by his will, are not distinguishable from those opened after his death in pursuance of a contract, and in several such cases royalties realized therefrom very properly, it seems to us, have been held in other jurisdictions to be income. See Thornton on Oil & Gas, vol. 1, § 301, and cases there cited. But this could not result, of course, where the testator by the will conferring the power provided otherwise with reference to the disposition of the funds derived thereunder. money was paid to the trustee does not seem sufficient to change the character of the transaction or the proceeds derived therefrom. Counsel state their inability to find any authority upon this question, and we likewise have been unable to do so, although it would seem the question must have arisen many times. We conclude, however, that the $640, like the larger sum in the hands of the trustee, is a part of the corpus of the trust estate, and that the cestuis que trust are not entitled to any part thereof until the expiration of the trust period, and during that period to the income only that may be derived therefrom. The judgment of the chancellor, being in accordance with these conclusions, is affirmed. In the will here it is expressly provided that the proceeds derived by the trustee from the exercise of the power of disposition conferred upon him "shall be invested by my said trustce in some good interest-bearing. securities," and only the income therefrom paid to the cestuis que trust during the trust period. Hence we conclude the chancellor, in construing this will did not err in holding that this sum and royalties hereafter to be received are part of the corpus of the estate, rather than income derived therefrom. [3] As to the item of $640 we do not feel quite so confident, although it seems reasonably clear that money derived from an option to take oil from the land, which was never exercised, cannot be distinguished from other money that would have been received as royalties from the same transaction if the option had been exercised. It is not stated in the petition that the privilege to drill for oil from which the $640 was realized was but a part of a contract of sale of the oil in place, whether in form a deed or lease, but presumably this is true, and that such it was is the only reasonable inference from what is stated, and we shall so consider it. The $640 is therefore money derived from a contract for a sale rather than for a mere rental of a part of the land. It is true, of course, as appellants urge, that no part of the land was parted with in the transaction, but it is also true that no part of the land was used either. The money was simply forfeited to the trust estate, but, as it came from a contract for a sale rather than for a rental of the land, it at least would have been a part of the proceeds of a sale and of the corpus of the estate if the contract under which it was paid to the trustee had been fully executed. The fact the sale was never consummated as contemplated at the time and for which the STAIAR'S ADM'R et al. v. COMMON- Taxation 864-Entire estate of resident is subject to inheritance tax. Where decedent was a resident of the state at the time of his death, the inheritance tax should be paid out of the entire estate left by him, subject to such exemptions as are allowed by the statute. 2. Taxation 867(1)-Only property of nonresident situated in state is subject to inheritance tax. Where the legal residence of decedent was not in the state, only such part of the estate as then had a situs within the state and would descend under its laws would be subject to the inheritance tax, and that only to the extent its value might exceed the exemptions allowed by the statute. 3. Taxation 867 (1) laws means domicile. The word "residence" as used in the inheritance tax statute is synonymous with domicile, and residence is to be determined by applying the principles relating to domicile. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Residence.] 4. Domicile 1-Person must have domicile, and can have only one. Every man must have a domicile somewhere, and can have but one, so that a domicile continues until a new one is acquired. 5. Domicile 4 (2) -Intent to change must exist. Intention to change domicile must exist in order to effect the change, so that the acquiring of a new domicile necessarily involves an exercise of volition, or freedom of choice. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (239 S.W.), 7. Taxation 867(1)—Finding decedent had not changed domicile held against weight of evidence. In proceedings by the commonwealth to recover an inheritance tax levied upon the entire estate of decedent, who had gone to his daughter's home in Washington two weeks before his death, a finding that decedent had no intention to change his domicile held contrary to the weight of the evidence. Appeal from Circuit Court, Owen County. Suit by the Commonwealth of Kentucky by W. O. Mays, its Revenue Agent, against Lee Kemper, as administrator of the estate of Tobias Staiar, deceased, and others, to collect an inheritance tax. Judgment for the plaintiffs, and the defendants appeal. Reversed and remanded, with directions. S. D. Rouse, of Covington, W. A. Price, of Owenton, C. H. Syme, of Washington, D. C., and J. G. Vallandingham, of Owenton, for appellants. Cammack & Baker and H. W. Alexander, all of Owenton, for appellee. his appointment as administrator, of his personal estate in Owen county, Ky. This proceeding was later instituted in the Owen county court in the name of the commonwealth by its revenue agent, W. O. Mays, under Kentucky Statutes, § 4281a1, against Lee Kemper, as administrator of Tobias Staiar's estate, Kate Rousseau, the latter's daughter and only heir at law, and L. G. Rousseau, her husband, to collect of Staiar's estate an inheritance tax, or taxes, claimed to be due therefrom, upon the assumption that he was a resident of and domiciled in Owen county when he died. The defendants filed a general demurrer to the statement, setting forth the plaintiffs' claims, which the county court overruled. The defendants then filed joint and several answer, which traversed the averments of the statement, and, in addition, substantially alleged that the decedent, Tobias Staiar, died a resident of the city of Washington, District of Columbia, where he had previously removed and in good faith permanently established his domicile; and that the whole of his estate, except the house and lot in Owenton, Ky., and furniture of the house, was at the time of his death, and continuously since the happening of that event, situated in the city of Washington, District of Columbia, and for these reasons is not subject under the laws of Kentucky to an inheritance tax or taxes in that state. The affirmative matter of the answer was controverted by reply, and with the issues thus completed the case went to trial in the county court, which resulted in a judgment sustaining the plaintiffs' contention and awarding them in behalf of the commonwealth of Kentucky $6,962.20, as the total amount of inheritance tax, including interest and penalty, recoverable out of the estate of the decedent, Tobias Staiar. From that judgment the defendants duly prosecuted an appeal to the Owen circuit court, and on the trial in the latter court the plaintiffs again obtained judgment; the amount of inheritance tax thereby recovered, including interest and penalty, being $7,300. The defendants filed motion and grounds for a new trial, but the motion was overruled by the circuit court, excepting to which, they prayed and were granted an appeal from its judgment to this court. SETTLE, J. After a residence of more than 80 years in Owenton, Ky., Tobias Staiar died, intestate, January 8, 1918, at the home of his daughter and only heir at law, Mrs. Kate Rousseau, wife of Lovell G. Rousseau in the city of Washington, District of Columbia, where they had resided many years. Mary Staiar, wife of Tobias Staiar, died December 7, 1917, at about 84 years of age; and at the time of his death he lacked but a few months of being 102 years of age. He had accumulated and left at his death an estate amounting to about $226,000, consisting of $220,000, in United States government bonds, a house and lot in Owenton worth $5,000, two or three diamonds, furniture, and other effects of the value of $1,000. After the decedent's death his daughter, Mrs: Rousseau, [1, 2] There appears to be no disagreement by an order of the probate court of the Dis- between the parties as to the correctness of trict of Columbia, was appointed and duly the amount of the inheritance tax, interest, qualified as administratrix of his estate; and and penalty, imposed by the judgment of by a like order of the Owen county court of the circuit court, if such tax is legally colthis state, Lee Kemper, a resident of the lat- lectable. The controversy is as to whether ter county and state, was appointed and the estate of Tobias Staiar, deceased, is subduly qualified as the administrator of the ject to such tax. If at the time of his death decedent's estate. The daughter by virtue of his legal residence was in this state, the tax her appointment as administratrix took should be paid out of the entire estate left charge of the decedent's personal estate in by him, subject to such exemptions as may the District of Columbia, and Kemper, under be allowed by the statute imposing the tax. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes If his legal residence was not then in this state, only such part of the estate as may then have had a situs in this state, and would descend under its laws to his daughter as the only heir at law, would be subject to such tax, to the extent its value might exceed the exemptions allowed by the statute of this state imposing the tax. However, we do not understand that the feature of the case last mentioned is in dispute. The sole question here involved is as to the legal residence of Tobias Staiar at the time of his death; it being the contention of the appellants (defendants in the court below) that he was then a resident of Washington City, District of Columbia, and that of the appellees (plaintiffs in the court below) that he was a resident of Owenton, Owen county, Ky. [3] The law controlling the decision of this question is so universally recognized that no material diversity of opinion can arise re garding its meaning. In Gleason and Otis on Inheritance Taxation (2d Ed.) 213, it is said: "The word 'residence,' as used in the inheritance tax statutes, is synonymous with 'domicile'; and, although the statutes use the word 'resident,' the residence is determined by applying the principle relating to domicile." [4] Before the enactment of inheritance tax statutes, both text-books and courts of last resort had proclaimed certain rules for determining domicile. Mention of these rules in detail is unnecessary, as they are given in epitomized form in the following statement of the law contained in Cooley on Taxation, vol. 1, p. 641: "No exact definition can be given of domicile; it depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case. It is a maxim that every man must have a domicile somewhere; and also that he can have but one. Of course it follows that his existing domicile continues until he acquires another; and, vice versa, by acquiring a new domicile he relinquishes his former one. From this view it is manifest that very slight circumstances must often decide the question. It depends upon the preponderance of evidence in favor of two or more places; and it may often occur that the evidence of facts tending to establish the domicile in one place would be entirely conclusive were it not for the existence of facts and circumstances of a still more conclusive and decisive character which fix it beyond question in another. So, on the contrary, very slight circumstances may fix one's domicile, if not controlled by more conclusive facts fixing it in another place." (Ky. ly stated in the following excerpt from Di- governing all questions of domicile is this: It will be found from an examination of the several cases decided by this court, cited below, that the rules for determining the question of domicile set forth above have been uniformly applied in this jurisdiction. Tipton v. Tipton, 87 Ky. 245, 8 S. W. 440, 10 Ky. Law Rep. 252; Boyd's Ex'r v. Comth., 149 Ky. 767, 149 S. W. 1022, 42 L. R. A. (N. S.) 580, Ann. Cas. 1914B, 481; Semple v. Comth., 181 Ky. 679, 205 S. W. 789; Saunders v. City of Flemingsburg, 163 Ky. 680, 174 S. W. 51; Hurst v. City of Flemingsburg, 172 Ky. 127, 188 S. W. 1085; Rudolph v. Wetherington's Adm'r, 180 Ky. 272, 202 S. W. 652; City of Covington v. Shinkle, 175 Ky. 530, 194 S. W. 766. It will also be found that the following additional authorities are of like effect: 19 C. J. 406, 407; Ennis v. Smith, etc., 14 How. 400, 14 L. Ed. 472; People v. Moir, 207 Ill. 180, 69 N. E. 905, 99 Am. St. Rep. 205; In re Newcomb, 192 N. Y. 238, 84 N. E. 950; Tally v. Comth., 127 Va. 516, 103 S. E. 612. Following the consideration we have given the law by which our decision of the question of residence here involved must be controlled, it only remains to apply to the evidence the rules it prescribes for determining that issue, which, after all, is mainly one of fact. Before referring to the witnesses or discussing the evidence in detail, however, it will be proper to mention certain facts which appear to be admitted by the parties to the action. The considerable estate left by the decedent, Tobias Staiar, had been accumulated through a long and probably uneventful life by great thrift on the part of himself and wife; and, while he was not a spender of money, he could not have been called a miser, for it appears that he deprived neither his wife nor himself of any of the comforts of life, and that he constantly kept employed for many years a negro servant, and frequently more than one, to do the housework, cultivate his garden, and wait upon himself and wife. It appears too, that he was not illiberal with his daughter, Mrs. [5] Intention to change one's domicile Rousseau, for he purchased, several years must exist in order to effect the change; before his death, for her use, a house and therefore the acquiring of a new domicile lot in the city of Washington, for which he necessarily involves an exercise of volition paid $8,000, and, though the title was taken or freedom of choice; hence the removal to himself, the property was occupied, after must be voluntary. Our meaning is concise- his purchase of it and at the time of his |