which was not available for the public generally, although much of its use was charitable. In People ex rel. Olean Masonic Corp. v. Breder (1923) 121 Misc. 553, 201 N. Y. Supp. 291, it was held that under the New York statute exempting from taxation land the use or the income of which was applied exclusively to relief or educational purposes, a vacant lot owned by a Masonic corporation for the purpose of erecting a temple was not exempt, as neither the land nor any income therefrom was being devoted to relief purposes at that time. It was said in Berger v. University of New Mexico (N. M.) supra, that the exemption of property used for educational, religious, or benevolent purposes continued only so long as the property was actually being devoted to such purposes. In at least two recent cases it is held that property of a fraternal or relief association is not exempt from taxation where the property in question is rented or otherwise invested. Senter v. Tupelo (1924) Miss. 101 So. 372 (Masons). And see the reported case (STATE V. MCDOWELL LODGE, ante, 31) (Masons). In Senter v. Tupelo (Miss.) supra, it was held that property owned by a Masonic lodge was not exempt from taxation as "used for fraternal and benevolent purposes," where part of the premises were rented out, and the revenues therefrom were applied to the payment of the balance due on the purchase price of the building, and not devoted to benevolent purposes. The reported case (STATE v. MCDOWELL LODGE holds that a building owned by a Masonic lodge, and in part leased out for commercial purposes, is not exempt from taxation, even though the income therefrom is devoted to charitable purposes. R. E. La G. PEOPLE'S SAVINGS BANK & TRUST COMPANY, Exr., etc., of Edward Renz, Deceased, V. CARRIE RENZ, by Her Committee. Kentucky Court of Appeals - June 3, 1924. (203 Ky. 566, 262 S. W. 951.) Husband and wife, § 31 -loss of wife's jewelry liability of husband. 1. A man who, upon his wife becoming of unsound mind, takes possession of her jewelry and places it with his own papers in a safety deposit box in a bank, is not liable for its loss through the attempted transfer of it by the bank to a new location, although he does not sue the bank for its loss because of fear of the effect which publicity of the loss might have upon his wife in her mental condition. [See note on this question beginning on page 40.] --- Limitation of actions, § 214 effect of marriage to arrest. 2. A cause of action in favor of a woman against the administrator of one who had devised property to her, for an accounting, is not arrested by her subsequent marriage with the administrator. [See 17 R. C. L. 847.] Appeal, § 666 verdict on conflicting evidence effect. 3. A verdict of a jury on conflicting evidence upon the question whether or not money derived from the sale of a wife's property went into her possession or was retained for her by her husband will not be disturbed on appeal. [See 2 R. C. L. 194; 1 R. C. L. Supp. 433; 4 R. C. L. Supp. 90; 5 R. C. L. Supp. 79.] CROSS APPEALS from a judgment of the Circuit Court for Kenton County in favor of plaintiff in an action brought to recover money and jewelry alleged to have been turned over to her deceased husband and unaccounted for by him; defendant appealing from so much of the judgment as allowed plaintiff a recovery of money from the sale of her property; and plaintiff appealing from so much of the judgment as denied a recovery for the jewelry. Affirmed on both appeals. The facts are stated in the Commissioner's opinion. Where a bailee without hire retains possession of his bailment after demand, or retains possession against the consent of the bailor, the status then changes, and he becomes liable for slight negligence. Bakewell v. Talbot, 4 Dana, 216; Dear v. Brannon, 4 Bush, 471; Green v. Hollingsworth, 5 Dana, 174, 30 Am. Dec. 680, 1 Am. Neg. Cas. 771. Mrs. Renz not being able to make a contract of bailment, Renz in dealing with her did so at his peril. Cash v. Bank of Lowes, 196 Ky. 570, 245 S. W. 137; Lee v. Morris, 3 Bush, 210. Hobson, C., filed the following opinion: Edward Renz died in September, 1919, the owner of an estate worth about $16,000. By his will, which was duly probated, he devised his estate to a trustee to use the income, and as much of the principal as might be necessary, in taking care of his wife, Carrie Renz; what was left at her death was devised to certain of his own kindred. On September 10, 1918, Carrie Renz had been adjudged a person of unsound mind, and on September 24, 1919, John H. Richmond was appointed her committee. On April 20, 1920, this suit was brought by her committee against her husband's executor, in which she charged that Edward Renz in April, 1890, had qualified as the administrator de bonis non of F. R. Krueskamp, deceased, who had by his will left all his property to her, and that as such administrator he had received $3,743.80, which he had failed to account for. She also alleged that she and Edward Renz were married in 1898, and that after their marriage they sold a house and lot belonging to her for $3,500, and that he received this money for her and had not paid it to her. She further alleged that after they were married certain articles of jewelry were delivered to him by her and accepted by him for the purpose of having the care, custody, and control thereof, and for redelivery to her on her request; that the jewelry was of the value of $3,500, and that he had failed on request to deliver it. An answer was filed controverting the allegations of the petition and pleading limitation; proof was taken; the court held that the claim against Edward Renz, as adminis trator, was barred by limitation. This was admittedly correct, as the cause of action for this, if any, accrued many years before they were married, and the Limitation of statute being set actions-effect in motion was not of marriage to arrested by their arrest. subsequent marriage. The cause of action had accrued much more than twenty years before the suit was brought. The court instructed the jury to peremptorily find for the defendant as to the jewelry. He submitted the claim for $3,500 for the purchase money of the house to the jury. The jury found for the plaintiff as to this. The executor appeals from the judgment entered on the verdict, and the plaintiff prosecutes a cross appeal from the judgment denying her a recovery for the jewelry. The house was sold in the year 1902. The purchaser said he paid for the house by check, payable to Carrie Renz, but the proof for the (203 Ky. 566, 262 S. W. 951.) plaintiff by her two sisters, and the husband of one of them, is clearly to the effect that Edward Renz at different times told them that he had received this money and was holding it for his wife and had it invested for her until he had fallen behind in a land transaction and had to use the money himself to meet some obligations unexpectedly falling upon him. We have read the record with care, and we cannot say that the verdict is palpably against the evidence. There is proof for the defendant to the effect that Mrs. Renz was wasteful of money, betting on the races and buying jewelry when her mind was not normal, although she was prudent and economical when her mind was all right. It is earnestly insisted that, Mr. Edward Renz being dead and unable to explain, it should be presumed that she spent the $3,500 they got for the house, for jewelry or in betting on the races or in dresses; but there is no clear proof of these things, and the testimony for the plaintiff shows that not very long before his death Renz admitted having used the money in his business. So this was a question for the jury on all the facts, and it is the policy of the law to settle such ques Appeal-verdiet on conflicting evidence-effect. tions of fact by the verdict of the jury. The jury might well have found for the defendant, but their verdict cannot be disturbed in this court as palpably against the evidence. We do not see that there was any substantial error in the admission or rejection of evidence or in instructing the jury. The instructions fairly submitted the case to the jury and could not, under the evidence, have been misunderstood by them. The court did not err in peremptorily instructing the jury to find for the defendant as to the jewelry. The proof shows that the wife was subject to mania and at times. when her mind was wrong would have to be sent to an asylum. In one of these spells, some years before her death, when it was not safe Husband and wife-loss of husband. for her to keep the jewelry at home, It is her to learn that her jewelry, which i box. He was not an insurer of the jewelry; he was only bound to exercise ordinary care; he thought he was taking care of it in the safest way that he could. This is perfectly apparent from all the testimony; he cannot now speak for himself, but the facts shown prove this. It does not appear that a committee had been appointed for Carrie Renz when her husband took charge of this jewelry. The proof is clear that her condition at the time fully warranted his doing so. The evidence does not show that he had reason to know that there was danger of the property being lost. The notice that the boxes were to be transferred (as the sister says he admitted) was not notice that his property would be in danger. On all the facts he observed that care which a man of ordinary prudence may be expected to exercise under like circumstances. The loss occurred in this way. He had two boxes in the bank. He surrendered one but did not surrender the other, and by mistake the books of the bank did not show this. The judgment is affirmed on the original and on the cross appeals. ANNOTATION. Responsibility of one other than guardian or committee for property of mental incompetent. If two or more persons assume without authority the control or management of the estate of an insane person, and receive its income and profits, they make themselves trustees by construction, or guardians de son tort, and as such, a court of equity has jurisdiction to compel them to account. Bailey v. Bailey (1894) 67 Vt. 494, 48 Am. St. Rep. 826, 32 Atl. 470. The court said: "Holding the defendants accountable as trustees is but the application of the familiar principle that if a person, by mistake or otherwise, assumes the character of trustee, guardian, executor, or administrator, and acts as such, when the office does not belong to him, he thereby becomes such official de son tort, and can be called upon to account, by the beneficiaries, for the assets received under color of the trust." And in Whetstone v. Whetstone (1883) 75 Ala. 501, where a brother voluntarily as med, without an inquisition of lunacy, the control and management of the estate of his mentally deranged sister, holding himself out to the world as her agent and trustee, receiving the interest and accumulations of her estate, and as such trustee disbursing small sums as needed for her use, it was held that a court of chancery, upon his death, had jurisdiction to bring his executors to a settlement of the trust on which it was alleged there was a large sum due and unpaid. In Robinson v. Burritt (1889) 66 Miss. 356, 6 So. 206, it was held that a court of chancery had jurisdiction to decree an account of rents and profits of lands against a disseisor of lands belonging to one non compos mentis. The court said: "We are unable to distinguish between the rights of infants and persons non compos mentis to resort to a court of chancery for relief. The rule seems to be well settled that a court of chancery will charge as bailiff any person who may enter upon the lands of persons under such disability who are wards of the court." In Moody v. Bibb (1874) 50 Ala. 245, the court held that one acting as guardian of a lunatic under a void appointment was a trustee in invitum and, having assumed the duties and trusts of a guardian, rendered himself liable to account as such, in any court of the state having jurisdiction to administer such trusts; and such trustee was not relieved from liability by pleading a final settlement in the probate court, which was void for want of jurisdiction. In Moody v. Bibb (Ala.) supra. the court held that the act of the guardian, acting by void appointment, in attempting to pay the administrator of the lunatic in Confederate currency, in exchange for the assets of his ward's estate, during the war between the states, did not discharge said guardian, notwithstanding the Act of 1866 of the state legislature, sanctioning unauthorized conversions of the estates of deceased persons, minors, and beneficiaries into Confederate currency, whether issued by the state or the Confederate States government, such an act being an impairment or destruction of vested property rights. And in Straight v. Ice (1904) 56 W. Va. 60, 48 S. E. 837, it was held that if one is appointed a committee of an insane person, though without notice to the insane, and accepts and acts as such, he may be sued for an account of money received by him as such, by color of his appointment, though the appointment be void. In Ex parte Chumley (1790) 1 Ves. Jr. 156, 30 Eng. Reprint, 278, where the brother of a lunatic was appointed as the committee of the latter's estate, but had managed the estate for nine years before the commission, during which time considerable savings accrued, he was compelled to pay interest on the same, although he claimed to have made no use of them. In the reported case (PEOPLE'S SAV. BANK & T. Co. v. RENZ, ante, 37) it will be observed that the court took the view that the husband, in taking charge of jewelry belonging to his wife at a time when she was mentally incompetent, did not become an insurer against its loss, but was only bound to exercise ordinary care; and upon the facts had exercised such R. P. D. care. CARLISLE COUNTY et al., Appts., V. T. P. NORRIS. Kentucky Supreme Court - October 5, 1923. (200 Ky. 338, 254 S. W. 1044.) Charities, § 60 failure to accept trust termination. 1. One who has donated land for a public cemetery and created a trust fund for its maintenance may, in case the public refuses for ten years to accept or utilize the donation, have the trust annulled and the property returned to him. [See note on this question beginning on page 44.] APPEAL by defendants from a judgment of the Circuit Court for Carlisle County in favor of plaintiff in a suit brought to cancel certain voluntary conveyances for cemetery purposes and for the return of trust funds given for its improvement. Affirmed. The facts are stated in the opinion of the court. Messrs. John E. Kane and R. M. Shelbourne, for appellants: The charity of the plaintiff has not so far failed that the property donated by him to the uses and purposes of the charity has reverted to him. 11 C. J. p. 371, § 100; Peth v. Spear, 63 Wash. 291, 115 Pac. 164; Taylor v. Columbian University, 226 U. S. 126, 57 L. ed. 152, 33 Sup. Ct. Rep. 73; Huger v. Protestant Episcopal Church, 137 Ga. 205, 73 S. E. 385; Grundy v. |