154 Ky. 83 | Ky. Ct. App. | 1913
Opinion op the Court by
— Reversing.
W. H. Hampton was twice married. By his first wife he had three children, J. W. Hampton, Eliza S. Potter and Missouri Miles. Some time after the death of his first wife he married Charity Williams. By her he had eight children. Six of these children and one grandchild survived him. At the time of his death, in the year 1903, W. H. Hampton owned four tracts of land. He resided on a, tract containing about fifty-six acres, and owned two adjoining tracts, one of eleven acres and one of six acres. He also owned a tract of thirty-five of forty acres, distant about 250 or 300 yards. After the death of W. H. Hampton, his widow, Charity, married James Farmer. Ever since his death his widow and certain of his children have occupied and cultivated the lands which he owned. o
This action was brought by the stepchildren and children of Charity Farmer to partition the lands of which their father died seized. The action is based on the fact that the lands were worth more than $1,000, and on the further fact that Charity Farmer had forfeited her dower and homestead under section 2133 of the Kentucky Statutes by living in adultry prior to her husband’s death. During the progress of the action Simeon Hampton died, unmarried, intestate and without issue. Charity Farmer pleaded that she had inherited his interest. On final hearing the court entered judgment, finding (1) that the land in controversy was of greater value than $1,000; (2) that the tract of land which did not adjoin the home place was not the subject of homestead. (3) that the defendant, Charity Farmer, had been guilty of adultery and was not entitled to a homestead; (4) that she had caused her infant children to leave home and seek shelter and employment elsewhere; (5) that the land be divided among the plaintiffs. From that judgment this appeal is prosecuted.
On the question of value, plaintiff J. W. Hampton, a miner by trade, who had never owned any land nor ever bought or sold any, testified that if the home place had been his when his father died he would not have taken
Upon the question of Charity Farmer’s adultery it appears that about four years after her husband’s death she had a son by James Farmer. Three or four witnesses testified that during W. H. Hampton’s lifetime
As to her driving her infant children away it appears that just before she married James Farmer she told her boy Simeon, who was twenty-one years of age at the time, that he would have to get a new home. After that he •left, but occasionally returned to his home. The next oldest son, Nathan Hampton, said that he left home to live with his grandfather; after that he went to live with J. W. Hampton and paid his board; that his mother had frequently tried to get him to stay at- home; his mother treated him kindly; his mother would often beg him not to stay in the mines. George Hampton, a boy sixteen years of age, testified that before his mother married James Farmer she told Simeon he could go away if he wanted to, but that Simeon stayed. He himself went to work for Mack Potter, but came home on Saturday nights. His mother did his washing. The older children all stayed at their mother’s house until they were married and set up homes for themselves. Charity Farmer testified that she always treated her children kindly; that when Simeon talked of going away she told him he could go if. he wanted to; that Nathan and George frequently returned to her home when they were not at work. Simeon was twenty-one at the time the suit was brought. Need and Joe, aged 13 and 7 years, were living with her at the time she testified.
While it is the rule not to disturb the finding of the chancellor on a question of fact where the evidence is conflicting and upon a consideration of the whole record the mind is left in doubt, yet where it is apparent from the record that the chancellor’s judgment is not supported by the weight of. the evidence, it will not be affirmed. Coomes Bros. v. Grigsby & Co., 151 Ky., 394. While there is some evidence on the part of plaintiffs to the effect that the land of which W. H. Hampton died seized was worth more than $1,000 at the time of his
Plaintiffs insist that Charity Farmer forfeited her right of homestead by living’ in adultery with James Farmer prior to her husband’s death. It is true that she gave birth to a child by James Farmer four years after her husband died. Aside from this fact, however, none of the witnesses testified to any facts from which it could be reasonably inferred that she had improper relations ■with James Farmer during the lifetime of her husband. Borne two or three "witnesses say that they saw James Farmer there on several occasions, both when W. H. Hampton was at home and not at home. They simply say that they saw him sitting around talking. None of the witnesses claimed to have seen him in a compromising position with Charity Farmer, or to have heard any conversation between them or to have witnessed any conduct that would justify the inference that their relations at that time were improper. While adultery may be proved by circumstances, and may be inferred from the conduct of the parties, yet the circumstances and conduct of the parties must be such as to make the inference not only probable, but reasonably certain. It may be doubted if the evidence in this case is
We do not understand exactly what effect the chancellor intended by his finding of fact that Charity Parmer had caused her children to leave her home and seek shelter and employment elsewhere. We deem it sufficient to say that the evidence fails to support this finding. Some of the older children married and left to establish homes of their own. The older boys while living elsewhere always regarded her home as their home. When they wished to return they were permitted to do so and she waited on them, did their washing and attended to their other needs just as she did for the other children. The two youngest children are still with her and appear to be satisfied with their home. The homestead is for her benefit as well as that of the infant children. If the children are denied this right, the court will protect their interest.
Judgment reversed and cause remanded, with directions to dismiss the petition. .