University in the State of Indiana in trust, the proceeds of which may be used only for the purposes of education of the descendants of George Holman and Jacob Meek." It is proper to remark here that the appellee, DePauw University, is the legal successor to all the rights and privileges of the Greencastle University named in this will.

The testator, William Holman, never had any children. George Holman, the person referred to in his will, was his father, and his mother was the daughter and only child of Jacob Meek. Testator's wife died in the year 1887, and in the year 1890 Nicholas Holman, George W. Holman and William V. Holman, who claimed to be descendants of George Holman and Jacob Meek, brought an action in the Jefferson Circuit Court against this appellee, in which they sought to have that part of William Holman's will above quoted declared void, in which action it was alleged that George Holman and his wife, a daughter of Jacob Meek, left eleven children, all of whom were then dead, and that each of them had left children, and that there were more than 120 of them who were the descendants and heirs of George Holman and Jacob Meek; that they resided in many States and Territories of the Union and the places of residence of most of them were unknown, and that the question sought to be litigated in their action involved a common or general interest of many persons; that it was impracticable to bring all of them before the court within a reasonable time, and, therefore, the plaintiffs, the three persons named, sued for the benefit of all the descendants of George Holman and Jacob Meek. In this action they described the property of William Holman left after the death of his widow and asked that they be allowed to prosecute the action for the benefit of all the heirs of Holman and Meek, and that the court declare the provision in the will named void and that the property be distributed between the descendants of Holman and Meek. A general demurrer was filed to this petition, and the court construing the provision of the will, copied herein, was of the opinion that the devise was for a charitable use or purpose and sustained the demurrer. The plaintiffs therein objected and excepted and prayed an appeal to the Court of Appeals, which was granted, but no appeal was ever taken from that judgment, which was rendered in the early part of the year 1891.

On the 6th of September, 1902, the appellee, De Pauw University, filed its action in the Jefferson Circuit Court, in which it set forth the will of William Holman, the judgment of the court in the above described case and the description of two pieces of real estate which was devised under the will of William Holman, setting forth that this property was out of repair and producing but little income, and asked the court to sell it for the purpose of reinvesting it in other property more remunerative. In this action appellee made Otway C. Sterling and Sidney T. Sterling, who were descendants of George Holman and Jacob Meek, defendants, and alleged that the other descendants of Holman and Meek were numerous, and that it was impracticable to bring them all before the court within a reasonable time; that the questions involved were of a common and general interest to all of them, and prayed that the defendants named be allowed to defend for all of the descendants of Holman and Meek. In this case the court made an order in conformity with such request, and the defendants answered, ad

mitting the allegation that the descendants of Holman and Meek were numerous and that their places of residence were to them unknown, and that they had no objections to the sale of the property sought to be sold in this action, and prayed that in the event of a sale that the court would sufficiently protect the proceeds to the end that they be devoted to the purposes named in the will of William Holman and that their answer be taken as the answer of all the descendants of Holman and Meek. Upon proof being heard as to the necessity of a sale of the property, the court made an order directing a sale of it, the commissioner sold it and appellant, Henry M. Johnson, became the purchaser. Appellant filed exceptions to the report of sale because the title to the lots sold did not pass to the purchaser ander the judgment and sale herein because the devise in the will of William Holman, deceased, of the remainder interest in his estate to the trustees of Greencastle University, in the State of Indiana (now DePauw University, appellee herein), was void, the effect of the devise being to create a perpetuity, the object not' being a charity. The court overruled the exceptions and confirmed the report of sale, from which action of the court appellant has appealed.

The appellee by counsel contends that the devise under consideration is valid, it being for a charitable use and refers to the cases of Gass v. Wilhite, 2 Dana, 170, and Ford v. Ford, 91 Ky., 572. In the opinion of this court these opinions do not sustain the position of counsel. The case in 2 Dana was where the society of Shakers was sued by one of its members who had withdrawn therefrom, claiming that he had given the society property, and demanded the value of it. His counsel argued that the gift was not a valid one; that it was prohibited by law, not being for a charitable use. The court in that case decided that the gift was a valid one, and in the opinion used this language: "So long as piety is recognized by common assent, and by the legislature, as a valuable constituent in the character of our citizens, the general law must foster and encourage what tends to promote it. In legal estimation it must be viewed as what is not only es timable in itself, but as an appurtenance to the characters of individual citizens, of great value to society, for its tendency to promote the general weal of the whole community. * * * In a country like ours, where it is one of the fundamental canons of the political law that there shall be no established religion, and that government shall not actively participate in the support or dissemination of religion of any sort, all such societies- pious institutions of all sorts-must depend upon the eleemosynary contributions of individuals. This would seem to require that the law should esteem such contributions as in a peculiar degree charitable. Whenever the end is truly pious, donations to promote it, the law must esteem as really char itable." The court in this case upheld the gift upon the principle that the society of Shakers was a religious body, a church, and under our statutes such a gift is expressly made valid. (Section 317, Kentucky Statutes.) The case of Ford v. Ford, supra, was where a testator in his will directed that a monument be erected over his and his wife's graves. The court upheld this provision of the will upon the grounds that it did not create a perpetuity; that the statute expressly authorizes it and also that it was for a humane purpose. In this case the court used this language: "Charity,

but

in its most general legal sense, has been said to be a general public use, the definition given by the eminent counsel in the Girard will case has received judicial approval. It is: 'Whatever is given for the love of God or for the love of our neighbor, in the catholic and universal sense, given from these motives and to these ends, free from the stain of everything that is personal, private or selfish, is a gift for charitable uses.'"'

In the will under consideration the testator, William Holman, gave without any limitations, and in perpetuity, to appellee all his estate remaining after his wife's death for the purpose of the education of the descendants of George Holman and Jacob Meek. This devise was in no sense for a general public use, nor was it given with motives free from the stain of everything that is personal, private or selfish. It is confined solely to the education of the descendants of two individuals only. If it had been given to the appellee for the general purposes of education, or if it had been given into the hands of trustees for the education of poor children or the children of a State, county or a designated community, it would have been valid and upheld as a devise for a charitable use. (5 Ky. Law Rep., 419; 82 Ky., 5; 86 Ky., 610; 3 Bush, 365.)

But we are of the opinion that this question in this case is res adjudicata for the reason that three of the heirs of William Holman, the devisor of the first estate, brought suit against DePauw University for the benefit of themselves and all the heirs and descendants of Holman and Meek, making the allegations required by section 25 of the Code, and seeking to recover the property embraced in the trust on the ground that the will was void for perpetuity, and the court in that case adjudged that the will was valid and dismissed the petition. The only objection made to the conclusiveness of this judgment is that there was no order of court in that case authorizing the plaintiffs to sue on behalf of all the heirs. The provision of the Code with reference thereto is as follows:

"Section 25. If the question involve a common or general interest of many persons, or if the parties be numerous and it is impracticable to bring all of them before the court within a reasonable time, one or more may sue or defend for the benefit of all."

Even if an order of court allowing the Holmans to prosecute the action for the benefit of all was necessary, which we do not decide, it is not shown that any of the parties in whose behalf the action was brought disapproved of it, and after the lapse of time--nearly thirteen years—the presumption is that all the descendants of Holman and Meek concurred in its object. (Flint v. Furr, 17 B. M., 513.) And in addition to this it does appear in this case that two of the descendants of Holman and Meek, who represented themselves and all the other descendants, acting under order of court, appeared, consented and requested that the proceeds of this real estate sold be by the court protected to the end that the same be devoted to the purpose named in the will of William Holman, We are of the opinion that the lower court was right in overruling the exceptions filed to the commissioner's report as the appellant by his purchase will obtain a good title to this property.

Wherefore, the judgment is affirmed.

HALL v. ELY.

(Filed November 12, 1903-Not to be reported.)

Land sales-Deficier cy-Where it was represented to the purchaser that a tract of land contained 185 acres and he agreed to pay $3,500 for same, a deficiency in the boundary of twenty-six acres is unreasonable and excessive and entitles the purchaser to an abatement of the deferred purchase money for such deficiency at the ratable price per acre.

Reed, Greer & Oliver for appellant.

White & Ray and J. M. Fisher for appellee.
Appeal from Marshall Circuit Court.

Opinion of the court by Judge Settle.

Negotiations for the purchase of a tract of land in Marshall county, this State, began in September. 1897, between the appellant, D. E. Hall, then a resident of Illinois, and the appellee, J. F. Ely, which, on November 17, 1897, resulted in the purchase by the former of the land, and its conveyance to him by deed, from the appellee as of that date. In the beginning, and in a large measure throughout the transaction, the appellee was represented by an agent in the person of W. M. Olliver, who was an officer of, and connected with, the Marshall County Immigration Co.

The consideration stated in the deed was $3,500, $750 of which appellant paid in cash to appellee. And as there were two mortgages on the land, one to secure a debt of $1,014.40, going to C. S. Gibson, and the other to secure a debt of $480 in favor of Dycus & Wood, the payment of these two debts was assumed by appellant, and for the remainder of the consideration for the land, viz., $1,255.60, he executed to appellee his note, due twelve months after date, secured by lien on the land.

Suit was brought against the appellant by Gibson in the circuit court to recover his debt, and enforce the mortgage for its payment. Wood & Dycus, holders of the junior mortgage, were made parties, and filed answer, which was made a cross petition against the appellant, and also against the appellee, the latter of whom was called on to assert the vendor's lien retained in his favor by the deed to secure the payment of the $1,255.60 note executed to him by the appellant.

Appellee filed answer and cross petition, in which judgment was asked for the amount of the note held by him against the appellant, and also for the enforcement of the lien retained to secure its payment Appellant paid the debt to Gibson of $1,014.40, but filed an answer to the cross petition of the appellee, in which he resisted the recovery sought by the latter on the note of $1,255.60, upon the ground of fraud and misrepresentation on his part in the sale of the land, and as to the quantity thereof. It is averred in substance in appellant's answer to the cross petition of appellee that he and his agent, the Marshall County Immigration Co., falsely represented to him that the tract of land sold him contained 185 acres, when as a matter of fact it contained only 158 acres and 74 poles, making a deficit of over twenty-six acres; that in his purchas of the land it was estimated to him at between $19 and $2) per acre, and that the consideration should be abated according to the estimated price to the extent of the deficit.

The appellee, by reply, traversed the affirmative matter of the answer, and the parties having taken proof upon the issues thus formed, the circuit court upon the submission of the cause gave appellee and Dycus & Wood judgment for their respective debts, but allowed appellant credit upon the amount recovered by appellee of $168.66, for a shortage of eight acres and four poles found in the land conveyed him, that quantity being in the adverse possession of the Nashville, Chattanooga & St. Louis R. R. Co., J. M. Hendrickson and Cleo Peel at the time of appellant's purchase.

The judgment also allows the appellant further credits on the debt of appellee for payments made and demands held by him against appellee, about. which there was no controversy, but refused him credit for any further deficit in the land than the eight acres and four poles mentioned. Of so much of the judgment as refused to allow him credit on appellant's debt for the further alleged deficiency in the land appellant complains, hence this appeal. It appears that repeated conversations occurred between the apppellant and appellee, and between the former and appellee's agent, W. M. Olliver, in regard to the quantity and quality of the land before the sale was consummated. Appellant and Olliver both testified that appellee and Olliver represented that the tract of land contained 185 acres; in fact, that appellee informed appellant that it would, if surveyed, be found to contain not less. than 204 acres. In addition, the writing given Olliver by appellee conferring upon him authority to sell the land, which was introduced in evidence, describes it as containing 185 acres, and it was so described in the advertisements offering it for sale that were posted by Olliver as appellee's agent.

It is true that appellee denies that he represented the tract to contain 185 acres, but his evidence is outweighed and overcome by the opposing statements of appellant and Olliver, and the facts manifested by the writing and advertisements mentioned. Appellant also testified that at the time of his purchase of the land he was a stranger in Marshall county, and was unacquainted with the land, and that he relied wholly upon the representations of appellee and his agent as to the quantity of land, and was thereby led to believe, and did believe, that he was buying from 185 to 204 acres, and that before the sale was consummated, and while at the depot, in Benton, waiting for a train, Olliver, in the presence of Ely, made for appellant's information a calculation on his shoe showing the several parcels of land composing the entire tract, and that when added the whole contained 184 acres; and further, that appellee and Olliver then gave him a plat of the land on which they wrote in words and figures “185 acres.

It appears that the quantity is mentioned in the deed to appellant from appellee as 177 acres, more or less." Appellant testified-in which he was corroborated by Olliver and contradicted by appellee alone-that this was done at the instance of appellee, and for the reason, as then given by him, to make the description of the land in the deed conform to the description in the title papers held by him, but that he explained that the words "more or less' would include the excess over the quantity named in the deed, and again assured appellant that there were 185 acres in the land conveyed by the deed. The foregoing facts so conclusively established, make it clear that appellee sold the land as containing 185 acres, and the appellant purchased in the full belief that it contained that quantity. It is further ap