Kempson v. Goss

• Decision Date: 29 June 1901
• Citation: 64 S.W. 224,69 Ark. 451
• Parties: KEMPSON v. GOSS
• Court: Arkansas Supreme Court

64 S.W. 224

69 Ark. 451

KEMPSON v. GOSS

Supreme Court of Arkansas

June 29, 1901

Appeal from White Circuit Court HANCE N. HUTTON, Judge.

STATEMENT BY THE COURT.

Appellant intermarried with the mother of appellees after the death of their father, and moved upon the place left them by their father, which was their homestead. Here he lived, having voluntarily assumed the care and support of appellees, until about two months and ten days after the death of his wife when he moved away from the place, leaving appellees living thereon. But he had planted a crop, and had rented out part of the place, and after moving away, he continued to cultivate his crop, and gathered same, and collected the rents and profits for the year 1898.

This suit is by appellees for the use and occupation of the land for the year 1898, alleging damages at $ 125. Appellant denied the claim of plaintiffs, and set up by way of set-off and counter-claim an account for the board of appellees amounting to $ 46.60, and a cook stove and provisions amounting to $ 24.27, and other articles of provisions and furniture, not itemized.

The appellant testified as to the items set up in his counter-claim, as follows: "After the death of my wife the mother of the plaintiffs, I remained on the premises and cultivated my crop until I moved to my own home place, on the 9th day of July, 1898, which was two and one-third months, and during that time I boarded, clothed and provided for all the plaintiffs, worth $ 5 per month for each of them; and when I moved I provided for them, and left with them one cook stove worth $ 8, 123 pounds of bacon worth $ 9.66, 80 pounds of lard worth $ 6.66, besides other provisions and household and kitchen furniture, worth at least $ 25 or $ 30." He also offered to prove these items and charges by other witnesses, which the court would not permit, to which ruling appellant duly saved his exceptions.

The court also instructed the jury as follows, over appellant's objection: "The jury are instructed that it was the duty of the defendant to provide for the plaintiffs, who were minor children of his wife and members of his family and it was his duty to provide for and take care of them, without charging for board and the necessaries of life."

Judgment affirmed otherwise reversed and remanded for a new trial.

Ben Isabell, for appellant.

Appellant was not liable for rents until the death of his wife, who owned a life estate in the land. 36 Ala. 80; 47 Ark. 457; 9 Am. & Eng. Enc. Law, 843. The remarks of the court in pointing out the duty of the defendant to the plaintiffs were improper. 1 Thompson, Trials, § 218. The testimony of John W. Smith was improperly excluded. 1 Thompson, Trials, 678. A stepfather is not in law compelled to support step-children. 14 Pick (Mass.), 510; 72 Ill. 545; 128 Mass. 287; 30 Me. 270; 33 Ill. 21; 113 Ill. 1161; 4 Wend. 403.

Grant Green, for appellee.

The appellant, having placed himself in loco parentis, must bear the burdens incident thereto. Schouler, Dom. Relations, 273; Lawson, Rights, Remedies and Pr. § 810; 2 S.W. 552; 45 Ark. 237. The children could recover rent for land from death of the mother. Sand. & H. Dig., § 4453.

OPINION

WOOD, J., (after stating the facts).

In the absence of a statute requiring it, one is not bound to maintain the minor children of his wife by former husband. But where he voluntarily assumes the parental relation to such children, under circumstances that "raise a presumption that he has undertaken to support them gratuitously, he cannot afterwards claim compensation for their support....