154 Ky. 83
Court of Appeals of Kentucky.
FARMER et al. v. HAMPTON et al.
May 27, 1913.
ACTION: Reversed and cause remanded, with directions to dismiss the petition.

Appeal from Circuit Court, Knox County.
Suit for partition by J. W. Hampton and others against Charity Farmer and others.
From a judgment for plaintiffs, defendants appeal.

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 atract containing about 56 acres, and owned two adjoining tracts, one of 11 acres and one of 6 acres. He also owned a tract of 35 or 40 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. The action was brought by the stepchildren and children of Charity Farmer to partition the lands of which their father died seised. 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 adultery 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 never bought or sold any, testified that if the home place had been his when his father died, he would not have taken less than $1,000 for it. He also said that the tract of 35 or 40 acres ought to have been worth four or five hundred dollars when his father died. James Detherage testified that he had owned 6 acres of land in that community, for which he paid $100; that after putting a small building on it he sold it for $150. He said that all the land W. H. Hampton owned at his death was worth $1,500. J. C. Sproul testified that he lived in the Swan pond community 25 years ago, and he thought the land was worth from twelve to fifteen hundred dollars. He further said that a big portion of the land was very steep, and for farming purposes he did not suppose it would be worth more than $1,000. S. P. Ely testified that he did not know what the land was worth, and would give no estimate. William Marcum, who owned no real estate, but who lived about three miles from the land in question, testified that he had owned at one time 14 acres of land, upon which he drilled a well and built a house and then sold for $300. He fixes the valuation of the land in controversy at $1,500. On the other hand, Charley West, who owned land about one mile from the Hampton land, fixed the fair cash value of the land at the time of Hampton's death at $1,000. He did not believe it would sell at public sale for more than $1,000. Mr. Smith, who lived about a mile from the land, and owned 75 or 80 acres of land, fixed the value of the land at $1,000. Luke Hampton, who had known the land from childhood, and who was raised on the farm, and who bought and sold land in the community, and who was a brother of W. H. Hampton, says that he sold his interest in the upper piece for $175, and his mother paid W. H. Hampton $25. In his judgment all the land his brother owned at the time of his death was not worth over $1,000. G. P. Bain, a real estate agent at Barbourville, placed the value of the land at not over $800. J. D. Stanfill fixed the value of the land at $10 per acre. John Hampton, who lived on Swan pond, testified that the land was very steep and rough, and in his opinion was not worth over $1,000. H. T. Lambert, who owned a farm on the creek, valued the land at from five to six hundred dollars.

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 James Farmer occasionally worked for Hampton. He was frequently around there about Hampton's house, both when Hampton was there and away. He visited just like any neighbor would and set around and talked. It further appears that James Farmer's wife was an invalid and was jealous of him. Charity Farmer testified that prior to her husband's death she had never had any improper relations with James Farmer, or any one else. The child begotten by James Farmer was born four years after her husband's death. She subsequently married James Farmer.

As to her driving her infant children away it appears that just before she married James Farmer she told her boy Simeon, who was 21 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 16 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 21 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.

While there is some evidence on the part of plaintiff's to the effect that the land of which W. H. Hampton died seised was worth more than $1,000 at the time of his death, yet the decided weight of the evidence of those who were qualified to pass an opinion on the question is to the effect that the value of the land at that time did not exceed $1,000. It appears from the record that W. H. Hampton bought the upper tract of 35 or 40 acres, and his mother had a life estate therein. For a while he rented it from her, but she died in May, and he died the following September. Upon her death a complete title vested in him, and he used and cultivated the place in connection with his home farm after his mother died. It is not material that the upper place did not adjoin his home farm, or that W. H. Hampton did not live upon it, if, as a matter of fact, it was used and cultivated by him in connection with the place on which he lived and was a part of his homestead, and this tract with the home tracts was not worth more than $1,000. As the evidence fails to show that all of the land of which W. H. Hampton died seised was worth more than $1,000, and as it is apparent from the record that all of his land was used and cultivated by him as a homestead, it follows that Charity Farmer was entitled to a homestead therein unless guilty of some act depriving her of that right.

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. Some 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 sufficient even to excite suspicion, much less to establish the fact of adultery. We therefore conclude that the chancellor erred in finding that Charity Farmer had been guilty of adultery during the lifetime of W. H. Hampton.

We do not understand exactly what effect the chancellor intended by his finding of fact that Charity Farmer 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.

Ky.App. 1913.
FARMER et al. v. HAMPTON et al.
156 S.W. 1041, 154 Ky. 83


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