30 Ky.L.Rptr. 383
Court of Appeals of Kentucky.
MOORE ET AL. v. MOORE ET AL.
Jan. 10, 1907.
ACTION: Affirmed.


Appeal from Circuit Court, Bell County.
Action by John Moore and others against Mary Liford Moore and others.
Judgment for plaintiffs. Defendants appeal.

BARKER, J.
Jeff Moore, a negro man, died intestate, at his home in Bell county, Ky. Several years prior to his death he had obtained patents from the commonwealth for two tracts of land aggregating 20 acres, situated on Turkey creek in Bell county, upon one of which he resided at the time of his death. This litigation arises out of a contest between the appellees, who are the children of the decedent by his first wife, a colored woman, and the appellants, Mary Liford Moore, a white woman who claims to be the wife of the dead negro, and her four half-breed children by him, three of whom were born prior to her marriage to the decedent. The record shows that some eight or ten years before his death, Jeff Moore abandoned and was divorced from his legitimate wife, Peggy Moore, and took up with Mary Liford Moore, a white woman, by whom he had three illegitimate children; after which he went through the form of marrying her, and then there was born to them a daughter, Ninevar Moore. While living with his white wife, the decedent procured from the commonwealth patents for the land in controversy. After his death the appellees, his colored children, instituted this action against the appellants, Mary Liford Moore and her four half-breed children. The petition states that at the time of his death Jeff Moore owned the land in controversy; that the appellees, his colored children, are his only heirs at law; that he died intestate; and that Mary Liford Moore, with her children, is in possession of the land and unlawfully withholding it from the appellees.

Mary Liford Moore filed an answer denying the title of the appellees to the land, and their right to its possession, and affirmatively claiming that, under an agreement between herself and Jeff Moore, the patents were to be taken out in her name, and that she furnished the money necessary to secure them; that she was an ignorant woman, unable to read or write, and always believed the patents were in her name, and praying that she be adjudged the owner as against the colored children of Jeff Moore; that, if this position cannot be maintained, she be adjudged a lien upon the land for the money expended by her in securing the patents, and in paying off a mortgage to one Reeder, and certain sums advanced by her to pay state taxes. The affirmative allegations of this answer were denied by reply, and upon motion of appellant, Mary Liford Moore, the case was transferred to the equity side of the docket, and, upon final hearing, the court adjudged the appellees, the colored children of the decedent, to be his heirs at law, and entitled to the property in question, and held adversely to appellant on her claim against the land for money advanced to pay the mortgage and taxes, etc.

It is conceded that the decedent was a negro, and that Mary Liford Moore is a white woman; therefore, under sections 2097 and 2098, of the Kentucky Statutes of 1903, the marriage between them was void, and the child thereafter born to them is illegitimate; this being true, neither the appellant nor her child can take any part of the estate of the decedent by law. All of the evidence of Mary Liford Moore concerning conversations and transactions had by her with the decedent is incompetent, and the trial court correctly excluded it. It may be admitted, that, independently of appellant's evidence, there is some testimony in the case tending to show that the decedent spoke of the property as belonging to his "old woman" (meaning appellant); and there is some tending to show that she, at several times, advanced him small sums of money; but there is also evidence in the record contradicting this, and which strongly tends to show that Jeff Moore regarded the property as his, and that he refused all the money both to secure the patents and pay off the mortgage he made to Reeder; that while the appellant occasionally brought the money with which payments were made, she always stated that it was money sent by Jeff Moore. This court always accords great weight to the conclusions of the chancellor upon the facts, and we are unable, in this case, to see any reason for deviating from this well-established rule.

We think the conclusion he reached was sound, and therefore, the judgment is affirmed.

Ky.App. 1907.
MOORE ET AL. v. MOORE ET AL.
98 S.W. 1027, 30 Ky.L.Rptr. 383


     

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