Hopkinsville Kentuckian. [volume] (Hopkinsville, Ky.) 1889-1918, 1896-07-24
CITY KNOCKED OUT.
SPECIAL JUDGE REEVES DECIDES THE
FOUNTAIN CASE.
Holds That the City Has Never Formal
~ Accepted The Bequest-An Appeal
Taken.

Judges Willis l., Reeves, who was
called upon TO sit in the case of the
city of Hopkinsville vs.. j. l. Landes,
Executor of Mrs NJ. n. Roach, de-
ceased, delivered bis opinion yesterday
morning, deciding against the city.
The case was tried Wednesday and
argued by Hon. Walter Evans and
Judge James Breathitt for the de-
fendant and by Judge r, T, Petree
and City Attorney Jas. B. Aliens
worth for the city. The suit grew
out OF bequest left to the city by
Mrs. Roach by will in 1891, $1,000 to
erect a fountain and 500 to keep il
in repair, This money if not 50 app
! propriated was to go to Judge Landes
and two nieces of Mrs. Roach in
equal parts, The city at that time
had no waterworks and when appli-
cation was made for the money Judge
Landes refused to furnish it, claiming
that it could not be used to provide
water. A suit resulted and he was
sustained in this position. The pres
ent suit was then brought in 1894.
Judge Reeves gave his opinion orally,
the substance of which is here re-
ported:
The great purpose is to find out
what was the intention of the will. 1t
is necessary to ascertain what Mrs.
Roach meant. l don't think there is
any doubt that she intended to put
upon the city the burden of main
tanning the public fountain for all
time. The next question is has the
city undertaken to carry out her pur-
pose7 The city approached the
matter very guardedly. A commit
tee was appointed to consider
the bequest. A report fne.nuv
came and said if the will p"snt r.,
the city to furnish the altar s,,nnIv,
it would not accent tne bequest at all.
Inc super. ~ Court said the money
must 0e used 10 erect the fountain
and not to supply the water. 1t could
rot be expended for any other pur-
pose. The case was then dismissed.
without prejudice in December, 1891.
The city then did nothing further un-
til this suit was brought in 1894.
Then it passed another ordnance,
but did not formally accept it.
The Superior Court said it hadn't
accepted in 1891. Nor has it since.
1t would have been simple thing
to accept upon the conditions laid
down and pledge the city to carry out
the conditions. 1t didn't do that but
appointed committee to go and get
the money and bind the city to fur.
nish the water that was to run tn
fountain. 1t did say it would build
and maintain.the fountain. The city
seemed to be unwilling to incur any
burden. Mrs. Roach required
that it undertake the trust an6
carry out her purpose. 1t mig -.
prove a costly gift 10 the city. The
original fountain might be destroyed,
and the city have to restore it. Il
might be well considered whether it
was best for the city to accept $1,000
on such conditions. If the city in.
tended to accept, il ought TO have
said so. 1t has not done this, nor
has it given any pledge to carry out
the conditions. 1t has been argued
that the city has once declined, ex-
cept upon certain conditions. Wasn't
that refusal, and after refusing can
the city now reconsider? But
he
court dismissed the case without
prejudice it would have been con-
sidered final refusal. The court
may have wanted to give the city an
other chance, but after a reasonable
time it was not taken. Here was
delay OF nearly three years after De-
cember, 1891. 1t is impossible to
consider that the city had not aban-
dored its claim. The only reason
now for change of purpose is that
in the whirligig of time 1t has water
works My conclusion is that / don't
think the city has now accepted the
bequest. 1t has done nothing to
show contract for longer than one
year. | am rather strongly inclined
to believe that the city has deliber-
ately refused to accept it; even since
this suit was brought, the city has
not said that it would accept the con-
ditions, l can't see any way how the
executor can be forced to pay the
He would have failed to do his
duty if he had given the money with
out a binding contract for all time. 1t
may be that the city intended to &C.
cept the conditions, but it did deit in
ordinance. Ny conclusion is that the
city of Hopkinsville has abandoned
It's claim, first by refusal and then by
70 SIura