of the court to set aside the award. That question, however, was one cognizable in equity. The chancellor had jurisdiction to hear and determine it without the intervention of a jury. The question of whether Bassett was or was not an impartial and disinterested appraiser was a question of fact of which the chancellor had jurisdiction; and, if the chancellor had submitted the question of fact to a jury for its determination, the verdict would have been advisory only. The motion to retransfer the consolidated cause to the common-law side of the docket for a trial of question of fact was therefore properly overruled. goods. The fire started in the rear of the praisement and award, then it was the duty building and burned several holes in the floor; there was a basement underneath. Several racks of clothing were located near the rear of the store, and one of the holes was burned underneath one of the racks of clothing, and one end of this rack fell into a hole in the floor. While the arbitrators were in session the question arose as to the number of suits of clothing which were destroyed. Arbitrator Brown insisted that more than one rack of clothing was destroyed "out of sight"; that some or the racks fell through the holes burned in the floor, and were thus totally destroyed, while Bassett insisted that the holes burned in the floor were not large enough to admit of the [10] There is, however, yet another reason passage of a rack the size of the ones em- why the motion should have been overruled. ployed in that store. This was a controvert- The actions were brought at law upon the ed point. Brown claimed that he had count-insurance contracts. They were transferred ed the number of racks of clothing in the to equity by agreement copied above. The store, knew their location, the size of the evidence was taken entirely in depositions. holes in the floor after the fire, and that cer- Even in a case where either party is entitled tain of the racks had fallen into the base- to a trial by a jury of an issue out of chanment. In other words, Brown testified upon cery, the motion therefor must be seasonably these several points. The other members made, otherwise it is the duty of the court to of the board of arbitration questioned some deny it. In this case the appellants proceeded of his statements, and asked that the chief to take proof by depositions both in chief and of the fire department of the city of Bowling in rebuttal. The evidence was entirely made Green be called in. At the noon adjournment up before the motion for the transfer to the the chief was notified to appear that after-common-law docket was made. It therefore noon, and he did come before the board and came too late. As said in the case of Cherelated the circumstances surrounding the nault, etc., v. Eastern Kentucky Timber & fire, telling the size of the holes in the floor Lumber Co., 119 Ky. 170, 83 S. W. 552, 26 and how he found the clothing. Much of this Ky. Law Rep. 1078: was disputed by Brown at the time, and argument arose between Brown and Moltenberry, the chief of the fire department. In the first place Jones & Co. should not have selected a witness as their abitrator, and Brown as arbitrator had no right to present extraneous facts or give evidence before the board, except such as was obtainable from the premises. Having done so, it does not become Jones & Co. to assail the award because Moltenberry, the chief of the fire department, wholly disinterested, was allowed to make statements on the other side. In other words, the insured, having introduced evidence on his side of the controversy, is in bad grace to object to a single witness on the other side of the controversy. There was one witness on each side. Had Brown refrained from giving evidence, the arbitrators would not have found it necessary to have called in a witness on the other side. We are therefore of the opinion that no prejudicial error was committed by allowing Moltenberry to make statements concerning matters about which Brown had given evidence. [7-9] 3. Was the award rendered by the board of arbitrators fair and free from fraud? That was the principal issue in the court below. If, as charged in the replies, Bassett acted corruptly, and induced the other members of the board of arbitration so to act in arriving at and returning the ap A "As shown by the record, the parties had in the meantime at a considerable expense substantially prepared the case for trial as an equitable action. Although the defendants were entitled to demand a jury trial, this right, like any other, must be seasonably demanded, and might be waived, not only by express consent to try the case in equity, but by conduct from which such consent may be implied. party will not be allowed at any stage of the wards to withdraw a consent which was neces proceeding to sleep upon his rights, and aftersarily implied from his conduct. In the case at bar both sides went on and took a large mass of testimony, evidently contemplating a trial in equity. If after 22 years the defendants could be allowed to withdraw the consent which they had by necessary implication given to the trial of the case in equity, then not only would they be allowed in this way to delay the trial, but they would seriously prejudice the plaintiff." [11] It is insisted, however, that the agreement transferring the case to equity, quoted above, entitled appellants to a retransfer to the common-law docket. A careful reading of the agreement brings the inevitable conclusion that it did not enlarge the rights of appellants to have the case returned to the common-law docket, but only preserves such rights as appellants then had under the rule of practice. It did not waive any rule of practice, but it did indicate that appellants might desire a retransfer of the case at some future time. Considered as a whole, the agreement amounts to this: Appellants reserve the right to have the case returned to the common-law docket, if in due time a proper motion be made for that purpose, provided the nature of the issues warrant such action by the court. The agreement could be construed to mean nothing more. The chancellor considered all the facts of the case, and came to the conclusion that the award of the arbitrators was proper and should be sustained, and we are constrained to the belief that the award was fair and just to the appellants, Jones & Co. There appearing no error to the prejudice of the substantial rights of appellants, the judgment is affirmed. Appeal from Circuit Court, Knott County. W. J. Slone, Jr., was convicted of homicide, and he appeals. Affirmed. John Caudill and May & May, all of Prestonburg, for appellant. Chas. H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen., for the Commonwealth. CLARK, J. Appellant shot and killed Troy Sturgill, for which, after one mistrial, he was convicted; his punishment being fixed at ten years' confinement in the penitentiary. He seeks a reversal upon the grounds: (1) That the verdict is flagrantly against the evidence; (2) the admission of incompetent evidence; and (3) misconduct of the attorney for the commonwealth. 1. On Sunday afternoon November 26, 1916, deceased with some seven or eight others employed by Wm. Lynch, agent of the W. J. Fell Company, were on their way to Breathitt county, where the next morning they (Court of Appeals of Kentucky. Jan. 17, 1919.) intended to rebrand some trees, and most of SLONE v. COMMONWEALTH. 3. CRIMINAL LAW 404(4) EVIDENCEGARMENTS. JECTION. them were carrying branding axes. As they passed defendant's store, deceased, with his ax in his hands, approached defendant, who was on the end of the store porch, and accused him of having said to another in substance that deceased was a rogue. Defendant denied having made any such statement about deceased and picked up an ax standing near the store door, which he surrendered, however, upon demand, to one of the young men of decedent's party, and grabbed deceased about the arms and shoulders. After some little scuffling in which deceased tried to strike defendant with the ax, defendant shook or threw the ax out of deceased's hands and kicked or shoved him In a homicide case, the garments of deceas-off of the porch backwards. As deceased ed were admissible to show the direction in went off of the porch, he threw up both which the bullet ranged as material to the ques- hands and staggered back a step or two, and tion of whether deceased was advancing with then bent over as he came forward holding an upraised ax or was stooping down on ac- his stomach with both hands and unarmed. count of a kick administered by defendant. As he put one foot on the porch with the 4. CRIMINAL LAW 1036(4)—APPEAL-OB- other on the ground, the defendant shot him. This is the substance of the testimony of some seven or eight witnesses introduced by the commonwealth. The defendant, however, states that, when he shoved deceased off the porch backwards, the deceased, with his ax drawn, came back at him, and that he only shot to save himself after deceased failed to heed his demand to stop. In this statement he is corroborated only by Lark Slone. In a homicide case where decedent's shirt was allowed to be introduced in evidence without objection, it was not reversible error to allow the admission of both the vest and shirt without showing that they were in the same condition as at the time of the difficulty, where no objection was made thereto, because without objection the evidence will not be presumed to be incompetent. 5. CRIMINAL LAW COUNSEL. 726 REMARKS OF That in a homicide case the prosecuting attorney, after defendant had objected to exhibition of deceased's garments, made remarks relative to deceased's dying groans, was not error, when introduced as repartee to defendant's unwarranted objections. [1] The evidence preponderates, we think, that when the shot was fired deceased was not advancing menacingly towards the defendant, but was bent over holding his stomach where defendant had kicked him, and that he did not at the time have the ax in his hands seems to be conclusively prov For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. The evidence introduced by the commonwealth of which defendant complains is of two kinds: (a) Threats made by the defendant; and (b) different articles of wearing apparel worn by deceased at the time of the shooting. [2] (a) The threats made by defendant were not particularly against the deceased, and his name was not mentioned, but were against any one who attempted to brand, or who "stuck an ax" in any trees on defendant's land; and at the time these threats were made defendant and deceased were, according to the evidence, good friends. Hence it is argued these threats made by defendant had no reference to deceased and were therefore incompetent; but, admitting the threats when made were not meant for deceased, it was shown that after the threats were made, and the day before the difficulty, deceased helped branding trees on defendant's land until defendant came upon the land and stopped the branding, so that the threat to kill any one who stuck an ax in one of his trees, made by the defendant before the trees were branded, became applicable to and was literally carried out against deceased. So that there can be no doubt these general threats, made shortly before and in connection with the matter out of which the difficulty arose, were competent substantive evidence against the defendant, and the court did not err in admitting them. (b) The defendant next complains of the introduction of the shirt and vest worn by deceased at the time he was shot. There was no objection by defendant when the shirt was introduced; but after Charles Sturgill, father of deceased, had identified the vest as being the one worn by his son on the day of the shooting, the following appears from the record: "Defendant objects. We want to state that there is no controversy as to location where the man was shot, and we object to these bloody garments being presented to the jury, and move your honor to exclude it. "Motion overruled. Defendant excepts. "Q. I will ask you to examine where the ball went in on the outside, and where it came through on the inside, and tell the jury in what direction the ball ranged? "Defendant objects; overruled; excepts. "A. The ball ranged down from where it went in the vest; it ranged down consideraoly. "Q. About how much, would you say? A. It 207 S.W.-30 looks to be about an inch from the vest, maybe a little over. "Plaintiff offered garments as evidence." [3] It will be plainly seen that the basis of defendant's objection was that the garments were incompetent because they did not tend to prove any material fact in issue; but it is equally as evident they did tend to prove that the shot struck deceased when he was bent over, because "the ball ranged down from where it went in the vest" about an inch, which could not have been true had deceased been advancing on defendant with drawn ax, as defendant and Lark Slone testified. This was not only a question at issue, but is the vital factor in determining whether or not defendant shot in his necessary self-defense, so we have no doubt of the relevancy of these garments under such circumstances. [4] But it is most urgently insisted that before they could have been admitted the commonwealth must have shown they were then offered in the same condition as at the time of the difficulty, and this unquestionably is true (13 R. C. L. 928) and would have been required of the commonwealth had this question been brought to the attention of the trial court; but having permitted the shirt to be introduced without objection, and then having urged as the reason why both the vest and shirt should be excluded that they had no probative value, and not having called the court's attention to the failure to apply a necessary preliminary test that could easily have been determined then, but cannot be ascertained now, a reversal will not be ordered, because we will not presume the evidence was incompetent, where defendant had the opportunity in the trial court to test its competency but failed to do so. [5] 3. The last complaint is that the attorney for the commonwealth was guilty of misconduct prejudicial to defendant's substantial rights in exhibiting the bloody shirt and vest of deceased to the jury and in the following comments made after counsel for defendant had objected to the garments being exhibited and commented upon: "I wonder if it is the recollection of the dying groans of this dead boy that disturbed this gentleman." "The gentlemen get restless when this bloody shirt is presented and these blood stains remind them of the groans of that dying boy." "I don't blame his counsel for wanting to get away from the scenes of his dying groans." The remark that first brought forth an objection from defendant's attorney is not reported, so we must assume it did not warrant the objection as held by the trial court; and all of the reported remarks of plaintiff's attorney are clearly in response to the unwarranted objection of defendant's attorney, and, while made in the presence of the jury and for their benefit, were intro contract does not show and pleadings do not admit that wife had no property; but, upon proof by wife that she had no property, the burden of showing the fairness of the transac tion is upon administrator and heirs defending action. duced as a sort of repartee by an unwar- [5. DOWER 79(1)—ANTEN UPTIAL CONTRACT ranted objection on the part of defendant, -PRESUMPTION OF VALIDITY. and unless clearly prejudicial ought not, it Antenuptial contract, whereby husband and seems to us, to authorize a retrial, because wife relinquished their interest in each other's counsel must necessarily, as often held by estate, will not be presumed invalid, in wife's this court, be allowed much latitude. House-action for dower and share of personalty, where man v. Comlth., 128 Ky. 825, 110 S. W. 236, 33 Ky. Law Rep. 311; Allen v. Comlth., 176 Ky. 475, 196 S. W. 160. And we do not think the reference to the dying groans of deceased, although no one testified as to his dying moments, is a statement not fairly deducible in argument from testimony that he was shot, and about two months thereaftIn surviving wife's action for dower and er died therefrom; and the statements here distributable share of personalty, an instrucare in no sense comparable with or analogous tion as to validity of antenuptial contract, alto those made by the commonwealth's at-leged by wife to have been procured through torney in Slaughter v. Comlth., 149 Ky. 5, 147 S. W. 751, of which this court disapproved. 3. TRIAL 370(2)-SUBMISSION OF ISSUE TO JURY-DISCRETION OF COURT. Though parties to an equitable action are not entitled as a matter of right to have a purely equitable issue submitted to a jury, it is within chancellor's discretion to obtain advisory aid of jury upon such issue. 4. TRIAL 374(2) SUBMISSION OF ISSUES TO JURY LEGAL ISSUE-CONCLUSIVENESS OF VERDICT. Where distinctly legal issue is presented to jury by chancellor, verdict of jury is conclusive, and will not be disturbed, unless flagrantly against the evidence; but, where issue is purely equitable, chancellor may disregard verdict and enter judgment in conformity with his view of the weight of the evidence. 6. DOWER 80-ACTION FOR DOWER-ANTE NUPTIAL CONTRACT-INSTRUCTIONS. fraud, held not erroneous, on ground that it imposed on husband duty to disclose to wife extent and value of his property, although extent and value of property may have been known to her. 7. DOWER 80-ACTION FOR DOWER-ANTENUPTIAL CONTRACT-INSTRUCTIONS. Such instruction held not to authorize finding against contract, if wife did not fairly understand its import and meaning, although she may have been fully advised as to extent and value of her husband's property. 8. TRIAL FRAUD. 374(2) EQUITABLE ISSUE In surviving wife's action for dower and share of personalty, involving validity of antenuptial contract alleged by wife to have been procured through fraud, issue of fraud was of purely equitable cognizance, and jury's verdict thereon was merely advisory. 9. APPEAL AND ERROR 1054(2)—REVIEW— HARMLESS ERROR. Admission of incompetent evidence on equitable issue being considered by jury was not prejudicial; verdict of jury on such issue being merely advisory. Appeal from Circuit Court, Daviess County. Action by Ora Early against J. L. Early, and others. Judgment for plaintiff, and defendants appeal. Affirmed. W. T. Ellis and Floyd J. Laswell, both of CLAY, C. W. G. Early and Mrs. Ora Black were married on the 21st day of April, 1916. On the same day, and just prior to the Wedding, they entered into an antenuptial contract, by which each released all claim to the estate of the other by virtue of the marriage. W. G. Early died on the 21st day of December, 1916, leaving real estate of the value of $1,800 and personalty of the valve of $500. Thereupon his widow, Ora Early, brought this suit against the administrator For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tial contract was obtained by fraud, and the finding of the jury on this question was a specific finding on a question of fact. and heirs of W. G. Early to recover dower | mitted to the jury was whether the antenupin his real estate and her distributable share of his personalty. The defendants pleaded the antenuptial contract in bar of her right of recovery. Plaintiff replied that the antenuptial contract was obtained by fraud. On motion of plaintiff, the cause was transferred to the common-law docket for trial of the issue of fact. The jury found against the contract. The chancellor then adjudged that the contract was null and void, and that plaintiff was entitled to the relief prayed for. Defendants appeal. [1] There is no merit in the contention that the reply is a departure from the petition. Under section 98, Civil Code, a reply may contain: (1) A traverse; (2) a statement of facts which constitute an estoppel against, or an avoidance of, a set-off, counterclaim, or defense stated in the answer; (3), a counterclaim against the set-off; and (4) a crosspetition. The cause of action stated in the original petition was plaintiff's right to recover her share of her husband's estate. The defendants pleaded the antenuptial contract in bar of her right to recover. She replied that the antenuptial contract was obtained by fraud. The reply, therefore, merely pleaded facts in avoidance of the defense stated in the answer, and did not allege a new cause of action. The case is similar to a personal injury action, where the defendant pleaded a release by plaintiff, and plaintiff replied that the release was obtained by fraud. In such cases, we have never held the reply a departure from the cause of action stated in the petition. But [5] But it is insisted that the court erred in denying the defendants the burden of proof. Since it is admitted that the husband had property, there might be some merit in this contention, if by the contract in question plaintiff had released all her interest in her husband's estate, and there was no corresponding obligation on the part of the husband. Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22; Tilton v. Tilton, 130 Ky. 281, 113 S. W. 134, 132 Am. St. Rep. 359. where, as in this case, the agreement consists of mutual relinquishments of interests in each other's estates, and the contract does not show, and the pleadings do not admit, that plaintiff had no property, there is no basis for any presumption against the validity of the contract, since, in the absence of such a showing, the contract may have been to the advantage of the wife. The burden on the whole case was therefore on plaintiff, but when she testified that she had no property the burden then shifted to the defendants, and it was incumbent upon them to show the fairness of the transaction. It follows that the court did not err in placing the burden of proof upon plaintiff. [6, 7] The court instructed the jury as follows: "The court instructs the jury that if they believe from the evidence that, at the time the plaintiff signed the written contract involved in this case, she did not know the extent or prob by any other person to her, of its extent or that no disclosure was made by him to her, or value, and that she did not then fairly understand the import and meaning of said paper, then the jury will find in favor of the plaintiff as against said contract; and unless the jury so believe, they will find for the defendants in favor of said contract." [2-4] Nor is there any merit in the conten-able value of the property of W. G. Early, and tion that the chancellor erred in transferring the cause to the common-law docket for trial by jury of the issue of fraud. While it is true that the parties to an equitable action are not entitled, as a matter of right, to have a purely equitable issue submitted to a jury, the discretionary power of the chancellor to obtain the advisory aid of the jury upon such an issue has always been recognized and upheld. Carder v. Weisenburgh, 95 Ky. 135, | 23 S. W. 964, 15 Ky. Law Rep. 497.; Morawick v. Mortineck's Guardian, 128 Ky. 155, 107 S. W. 759, 32 Ky. Law Rep. 971. Of course, where a distinct legal issue is presented, the verdict of the jury is conclusive, and will not be disturbed, unless flagrantly against the evidence. However, if the issue of fact be purely equitable, the chancellor may disregard the verdict and enter judgment in cónformity with his view of the weight of the evidence. L. & N. R. Co. v. Tuttle, 180 Ky. 558, 203 S. W. 308. Equally without merit is the contention that the chancellor erred in transferring the case to the common-law docket for a general verdict on the whole case. Plaintiff's right to share in her husband's estate was not submitted to the jury. The only issue sub It is suggested that this instruction is erroneous, because it imposed upon W. G. Early the duty to disclose to plaintiff the extent and value of his property, although the extent and value of his property may have been known to her. It is also suggested that the instruction is erroneous, in that it authorized the jury to find against the contract if plaintiff did not fairly understand its import and meaning, although she may have been fully advised as to the extent and value of her husband's property. It is manifest that neither of these contentions is sound. The different propositions submitted to the jury were not submitted disjunctively, but conjunctively. In other words, before the jury could find in favor of the contract, they were required to believe that plaintiff did not know the extent or probable value of the property of W. G. Early and that no |