Barton at that time and the entries are accounts made therein by himself against all the hands who worked on the farm at that time. In our opinion, this was a "shopkeeper's book" in the meaning of the language used in the last opinion referred to and was competent evidence. Appellant should have been permitted, after it was introduced, to explain it the best he could, which was done and he simply stated that he knew nothing of the transactions set forth in the book. There was very little testimony tending to show undue influence on appellant's part in obtaining the note, but this, as well as the issue of no consideration, was succinctly and properly submitted to the jury. In our opinion, there was more evidence to the effect that Joshua Barton executed and delivered this note for the purpose of giving the members of his family an advantage over his creditors, than there was evidence to support the two issues submitted to the jury. The testimony shows that the note was executed at a time when Joshua Barton was in embarrassed circumstances and at about the time the assignment which he had already executed was to take effect, but the failure to submit this issue was not prejudicial to appellant but to appellees. The note stated that the consideration for it was eight years' service, from 1898 to 1906, which would make $1,000 per year, and besides this, appellant was furnished with food supplies for himself and family. But few farmers could pay such a price, this fact of itself is suspicious, and, besides, the note was executed for $1,000 for three years as all agree that for 1908 and 1909 appellant worked upon the farm with his brother for a part of the crops and for 1900 and 1901 he worked under a contract price of $150 or $200 a year. We cannot understand why Joshua Barton would execute a note agreeing to pay three or four thousand dollars for these years, unless, as stated, he wanted to give his children an advantage over his creditors. If appellant worked on the farm for a part of the crops until 1906, as shown by appellees' testimony, the note was given without any consideration. Appellant has no right to complain because this case was transferred from the equity to the ordinary docket in the lower court to be tried by a jury. It was done upon his motion; the order was made over the objection of appellees, and, besides, the exceptions to the report allowing the note raised a common law issue, which should have been tried by a jury, as was done. There being no error prejudicial to the substantial rights of appellant, the judgment is affirmed. Globe Realty Co. v. Lentz, et al. (Decided February 23, 1911.) Appeal from Jefferson Circuit Court Real Property-Sale For Reinvestment-Owned by Father for Self and Infant Children.-Where it is made to appear that a house and lot owned by a father and his minor children, in the city of Louisville, produced no income above taxes, insurance, &c., and had become dilapidated, it was proper for the father to bring an action to have it sold and the proceeds used to repair a building on the father's farm in the country. The court had a right to order this sale even though it had no power to reinvest the proceeds in improving other property under section 491 of the Civil Code, providing that real property may be sold for reinvestment of proceeds in other real property. DAVID W. EDWARDS for appellant. JNO. J. JACKMAN for appellees. OPINION OF THE COURT BY JUDGE NUNN-Affirming. ! Alfred J. Lentz received under the will of his mother, Mary J. Lentz, some real and personal property for life with remainder to his children. We copy the clauses of the will referred to which have application to the questions involved: "Fourth. I devise to the Columbia Finance and Trust Company, of Louisville, Kentucky, all my real estate and all interest in or claims upon real estate, wherever situated in trust as provided in clause fifth of this will. "Fifth. The said balance of personalty mentioned in clause third above shall be divided into three parts and one part shall be paid or delivered to my (son) B. Brewster Lentz, the other part shall be held in trust for my sons John F. Lentz and Alfred T. Lentz during their lives and for their children after their deaths, the real estate and interest therein shall be divided in the same way and one-third conveyed to B. Brewster Lentz, and the balance held in trust as above provided. "Sixth. I devise that said Columbia Finance and Trust Company shall have power as executor and trustee to sell and convey any and all my real estate for the purposes of this will. "Seventh. I recommend said trustee, if there is enough money realized from real and personal property to invest the shares of John T. Lentz and Alfred F. Lentz and their children in two small houses in Louisville, Kentucky, as a home for them." After the will was probated, the trustee received from the personal and real property enough money to purchase a house and lot situated on Woodland avenue and 26th street, in Louisville, Kentucky, for a home for Alfred T. Lentz and his children. It seems they resided in this house for a while, but it appears that Lentz could not obtain employment in the city to enable him to support himself and family, so he instituted an action in the Jefferson circuit court and obtained a judgment directing the trust company to purchase about twenty-two acres of land near Beuchels' Station in Jefferson county. The purchase was made at the price of $900 cash. This money, as we understand it, was the income of the estate devised to Alfred T. Lentz by his mother. Lentz moved upon this twenty-two acre tract and began to farm and garden and it appears, made a success of the business. At the time he moved upon the twenty-two acres there was an old house upon it, but it was barely habitable. The house and lot in the city produced no income above taxes, insurance, etc., and has become somewhat dilapidated and of considerable less value than when purchased. The purpose of this action by Lentz and wife against their children, all of whom are under age but over fourteen, is to have the house and lot on Woodland avenue sold and the proceeds used to repair or erect a building on the farm. The proof was heard; it sustained the allegations of the petition and showed that it would be beneficial to the children. The court directed a sale of the house and lot in Louisville but reserved the disposition of the proceeds for future orders of the court. The property was appraised at $500, a sale was had and the Globe Realty Co. purchased it, but filed exceptions to the report of sale alleging that it could not obtain a good title as the court had no power to sell the property and re-invest the proceeds in erecting a house upon or improving other real estate belonging to Lentz and his children. The court overruled these exceptions, and rightfully, as it clearly had a right under section 491 of the Civil Code to sell the property when it was made to appear that it was beneficial to the parties in interest. The property was an expense to them and was depreciating yearly in value. The court had a right to order this sale, even though it had no power to re-invest the proceeds in improving other property, and the court was clearly right in overruling the exceptions. Section 491, Civil Code, which authorized the sale closes with these words: "Real property may be sold for re-investment of proceeds in other real property." Appellees claim this language might be properly construed as authorizing the disposition of the real property in this case and re-investing the proceeds in repairing or erecting a dwelling on the farm, as this would be a re-investment in real estate in the meaning of the Code. This court has, however, repeatedly given a different construction to the Code, which we feel bound by and that it is better to adhere to. In the case of Hayes, et al. v. Bradley, 15 Ky. Law Rep., 387, the guardian sold sixteen acres of land for the purpose of obtaining money to erect buildings on the remaining part, and in that case the court used this language: "The attempt to convert this sixteen acres into money, so as to erect a building on the remaining tract, was not authorized by the statute and the chancellor's jurisdiction being statutory, and the guardian by his petition seeking to do that which the statute did not permit, we must adjudge the sale not only erroneous but void." To the same effect is the case of Falls City Real Estate & Building Association v. Vankirk, et al., 8 Bush, 459. Under these authorities, the lower court must re-invest the proceeds of the house and lot in other real estate. But we find nothing in the will to prohibit the trustee from using other funds realized from the property devised to appellee and his children, in repairing or erecting a building on the farm. For these reasons, the judgment of the lower court is affirmed. Sackett v. Maggard. (Decided March 1, 1911.) Appeal from Leslie Circuit Court. 1. Contracts-Where a contract is contained in two separate and distinct papers, they will be read together for the purpose of ascertaining the true contract. 2. Same-When it may be Modified by Parol Proof-Parol evidence is not admissible to contradict a written contract, except in cases of fraud or mistake, or where there is vice in the contract. CLEON K. CALVERT for appellant. GREENE, VANWINKLE & SCHOOLFIELD and L. D. LEWIS for appellee. OPINION OF THE COURT BY JUDGE MILLER-Reversing. The appellant Sackett brought this suit to recover from the appellee Maggard $481.50, the value of 332 trees which appellant charges Maggard had cut from his land, and for $1,000 punitive and exemplary damages for the maliciousness of the action of Maggard in connection with the alleged cutting. Martha Maggard, the wife of James L. Maggard, owned a tract of land situated upon the Big Branch of Rockhouse Creek of the Middle Fork of Kentucky River. On October 12th, 1905, Maggard and wife made the following contract with G. W. Sproul, to-wit: "This agreement, mutually made and entered into, on this the 12th day of October, 1905, by and between Martha Maggard and James L. Maggard, of Leslie county, Kentucky, as of the first part, and G. W. Sproul, of Whitley county, Kentucky, as of the second part: "Witnesseth, That for and in consideration of the sum of $5 on this day in hand paid to the party of the first part by the party of the second part, the receipt whereof |