Kimmel v. Williams

290 S.W. 483 | Ky. Ct. App. | 1927

Affirming.

At the time of his death Henry Sherrill was the owner of a tract of land in Ballard county. Alleging in substance that they were the daughters of Henry Sherrill, and that David Williams was a grandson, and that the three were the only heirs of Henry Sherrill, Emily Kimmel and Rose Woods brought this action against David Williams and his wife for a sale of the land on the ground of indivisibility. On motion of Rose Woods her name was stricken as a party plaintiff and she was afterwards made a party defendant. The defendants denied the allegations of the petition and pleaded, in substance, that Emily Kimmel was born out of lawful wedlock and that Henry Sherrill was never married to her mother. Depositions were taken, and on final hearing the petition was dismissed. Emily Kimmel appeals.

Under the law prevailing in this state, a bastard, though capable of inheriting from his mother, is not capable of inheriting from his father, unless his father shall afterwards marry his mother and recognize him as his child either before or after the marriage. Willoughby v. Motley, 83 Ky. 297; Stein's Adm'r v. Stein, 106 S.W. 860; Sutton v. Sutton, 87 Ky. 216; Section 1397, Kentucky Statutes. Therefore, the only question for determination is whether the evidence was sufficient to show appellant's illegitimacy. Her evidence went no further than to show that she was the daughter of Henry Sherrill. Though several other depositions appear to have been taken by her, they were not read on the trial. On the other hand, appellees read the cross-examination of A.L. Newman, who deposed that Henry Sherrill was married only once and then to Aunt Polly Sherill; that the only children born of this marriage were Rose Sherrill Woods and Harriet Sherrill; that appellant was the child of Aunt Baker Sherrill, to whom Henry Sherrill was never married, and that she was several years of age when her father married Aunt Polly. As this evidence was not contradicted by appellant, and she declined to read any of the other depositions taken on her behalf, we conclude that the evidence was sufficient to establish her illegitimacy.

But, appellant insists that the court erred in permitting appellees to read the cross-examination of A.L. Newman without reading his entire deposition. All that need be said in reply to this contention is that the record does not disclose that appellant asked that the entire deposition be read, or that she made any objection to the reading of that portion of the deposition containing only the cross-examination of the witness.

Judgment affirmed.