138 Ky. 116 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
Carroll Marldiam died a resident of Warren county on February 22, 1881, the owner of certain real estate. He left surviving him two daughters, Alice Witherspoon, the wife of Thomas Witherspoon, and Sadie Markham, now Sadie Bertram. Mrs. Wither-spoon died about the year 1888, leaving surviving her a son, Porter Witherspoon. After her death her husband married a second time, and by his second wife had two sons. He and his second wife died about 10 years later. Porter Witherspoon died February 4,1904, and this controversy has arisen between his aunt, Sadie Bertram, and his two half-brothers, the children of his father by his second marriage, as to who inherited at his death the land which he inherited from his mother, .and she inherited from her father, Carroll Markham. Section 1401, Ky. St., provides; “If an infant dies without issue, having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and his or her kindred as hereinbefore directed, if there is any; and if none, then in like manner to the other parent and his or her kindred; but the kindred of one shall not be so excluded by
The case turns purely on a question of fact, and on such matters we give some weight to the judgment of the chancellor, and do not disturb his finding where the evidence is conflicting, and on the whole case the mind is left in doubt. The aunt introduced five or six witnesses, who knew the family, and fixed the age of Porter by reference to the ages of their own children or other circumstances, testifying that he was born in April, 1883. On the other hand, the plaintiff introduced several persons, who had equal means of knowing, and fixed the birth of the child in about the same way,, testifying that he was born in April, 1882. The numerical preponderance of the testimony, is with Mrs. Bertram, but the following facts support the conclusion of the chancellor: Porter himself said on different occasions that he was born in April, 1882. ' In April, 1903, he settled with his guardian, and took charge of his property. None of his relatives at that time raised any question that he was not of age. On the contrary, Mrs. Bertram then told the tenant who was living on the land that Porter was of age, and that the tenant should pay the rent to him. In addition to this, the family Bible
Judgment affirmed.