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tuted by the candidate defeated on the face of the returns. When it is instituted by him the proceedings must be In the same form and manner it the governing authority shnll determine upon, but until it is Institute! ■there is nothing for them to act upon.
8. Governing authority—Jurisdiction—Power of courts—The governing nuthority of the party is given exclusive jurisdiction to determine the coltest. The court can not review or coirect the decision of the committee on the merits of the contest, but the court may require the committee to set, or It may restrain them from acting when they have no jurisdiction.
4. Notloe—Time given—The time within which notice of a contest mo3 be given is a matter not to be determined by the committee. By thest»u.tt In this State, for over fifty years, contests for county offices have been required to be instituted within ten days after the final action of the canvassing hoard, and undei the present statute the time limit is the same, ani contests in primary elections being, by section 1563, to be decided bj the governing nuthority of the party holding the election, the grounds o( the fittest should lie filed before it and notice given the contestee within ten days nfter the canvassing of the returns, otherwise the committee was without jurisdiction to proceed.
If. C. Saufley and P. M. McRoberts for appellant.
ltobt. Hnrdlng, Sam Owsley and Ed. Puryear for appellees.
Appeal from Lincoln Circuit Court.
Opinion of the court by Chief Justice Hobson.
T. J. Hill and G. W. DeBorde were candidates for the Democratic nomination for sheriff of Lincoln county at n primary election held on December 8, 1904. On the face of the returns Hill received one vote more than DeBorde, and on December f! the committee, after canvassing the returns, Issued to him n certificate of nomination. On December 16 DeBurde instituted proceedings ol contest, and gave notice to Hill and the commit**. Hill In-isted that the notice was too late, but the committee overruled M* objection and fixed a day for the hearing of the contest. Hill ttewnvjor. brought this suit against the committee and DeBorde to enjoin them from proceeding further In the matter. The circuit court dismissed his petition, and he appeals.
In llatinan v. Megowan. 58 Ky., 533, It was held under n statute requiring notice of contest to lie given In ten days, that where the final acttuti taken on the lith of the month, and notice was given on the 16th, it was tec late. This case has been since followed by the court. Primary elections ore regulated by sections 1560-1560. Kentucky Statutes. Section 1551 provides: "All primary elections held In this Commonwealth by the rartau political parties shnll be held and conducted in the same form and U-j:' mid under the same requirements as are, or shall be, provided by law for upholding of regular State elections, except in such particulars as are nemr. excepted."
Section 1563 further provides: "The duly authorized and constituted cottmlttee or governing authority in the county or district in which a prlmarv election may be held hereunder is hereby empowered to count the vote* t*ceived by all candidates in such primary elections, and to declare tbeeudldate or candidates, In cases where candidates for more than one office«f» to he nominated, receiving the highest number of votes the nominee cf isd
Grewe. 113 Ky., 882.) In Henry v. Secrest, 24 Ky. Law Rep., [606, we aid: "If appellee Intended (o institute a contest he should have done so in uV usual and only proper manner, by giving notice to the committee as Bellas to the candidate whose right to the nomination was to be contested, ami if filing with the committee specifications showing fully the grounds open which the contest was to be based."
By the statute In this State for over fifty years contests for county office* have been required to be instituted within ten days after the final actionoi the canvassing hoard. Ky the present statute such contests shall be tj» petition filed in the circuit court, but the petition must be filed within tn days after the final action of thelxiard of canvassers. The time limit wiliia which contests must be instituted remains the same, and contests cf pimary elections being by section 1583 to be decided by the governing, anther Ity of the party holding the election, the grounds of contest should be (iM before it and notice given the contestee. Appellee properly served hisKtics on the appellant and also lodged it with the committee, but not having iestltuted his proceeding in time the committee was without juriidicuosK proceed.
Judgment reversed and cause remanded for a judgment as herein indicated.
OFFUTT, &c v. HALL'S EX OR, &c.
(Filed June <J, 1905-Not to be reported.)
Wills—Sale of land by executor—Discretion of executor—Where testator hr his will directed that "all the residue of my estate be equally (iiviieo among my four daughters in kind, so far as the same can be done, aadi> case same can not be divided in kind I direct my son-in-law, William Ficley, shall sell and convey in behalf of my estate all that can not be divided in kind, and divide the proceeds among my four daughters equally." Held —That in the absence of language refuting the idea the testator intended w vest complete discretion in the matter to his executor, and where the prof-' shows that the property could not be divided in kind without impair*** of its value, its sale by the executor was authorized under the will.
W. S. Kelley for appellants.
V. F. Bradley & Son and Montgomery & Lee for appellees.
Appeal from Scott Circuit Court.
Buford Hall disposed of a considerable estate by will. In additVoa te numerous specific devises he directed that the residuum go as fclause 8: "I will that all the vest and residue of my estate be equally divide among my four daughters in kind so far as the same can be done, ar :a case same can not be divided in kind, I direct that my son-in law. Willi*;: Finley, shall sell and convey in behalf of my estate all that can IMS V divided in kind, and divide the proceeds among luy four daughters equally.
By another clause of the will the estate of the testator's daughters slimited to their lives, with remainder to their children. Several trace c land and other property passed under the residuary clause. Sense of cki>