108 Kan. 833 | Kan. | 1921
The opinion of the court was delivered by
Augusta Smith, widow of R. W. Smith, sued to enjoin the administrator of her husband’s estate from selling a farm in Coffey county to pay the debts of the estate, plaintiff claiming that the farm is her homestead and exempt. The judgment was in her favor and the administrator appeals.
The plaintiff and R. W. Smith were married at Tulsa, Okla., in June, 1917. Before that time the husband had been engaged in the real-estate and loan business, and owned real estate in Tulsa, mostly unimproved, and a ranch near Claremore, Okla. In May, before the marriage, the husband traded for or purchased the land in controversy, consisting of a farm of about 70 acres in Coffey county, Kansas, the plaintiff furnishing part of the consideration. Immediately after their marriage the husband and wife moved to this farm and occupied one of the rooms in the farm house, the other part of the house being occupied by the family of the tenant under the former owner.
The sole question is whether the plaintiff and her husband occupied the place as their homestead during the husband’s
The defendant offered evidence to show that the plaintiff and her husband made frequent trips in their motor car away from the place and often would be gone for a considerable time;
While there are some so unfortunate as to be homeless, there are on the other hand, in every community, others who have more than one home, but in most instances the owner of several homes has one which he considers as his permanent place of abode. Which is the permanent dwelling place of a person is a question to be determined by his intention and not by the relative number of days in a given period that he actually stays at a place.
The defendant’s brief, after setting out the substance of the testimony in support of the case made by the plaintiff, admits that “standing alone it would, of course, justify a court in ruling that the farm in question was the residence of appellee and her husband during his lifetime.” But it is insisted that the plaintiff’s evidence, considered in the light of the conflicting testimony, must be disregarded. It is hardly necessary to state that this contention is not sound. Where there is a conflict in the testimony the question is to be determined by the trier of fact — in this case, by the jury.
In Fredenhagen v. Nichols & Shepard Co., 99 Kan. 113, 160 Pac. 997, a case involving the disputed question of whether a homestead had been abandoned by its owner, it was said in the opinion:
“If taken alone, the evidence to establish that the farm was the homestead of Proctor and his wife was such as should convince any reasonable*836 man that the homestead had not been abandoned. The evidence to the contrary, if considered alone, was such as would convince a reasonable man that the homestead had been abandoned. This makes the findings of the trial court conclusive in this court. (O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165.)” (p. 114.)
We have not attempted to set forth all the facts and circumstances tending to support the plaintiff’s claim nor all of those relied upon by the defendant. Enough has been stated to show that upon the question of fact there was a conflict in the evidence which has been determined against the defendant’s contention.
The judgment is affirmed.