ney's fee of $750, which had been allowed to her attorneys in the original judgment, be increased to the sum of $10,000. That motion was overruled, and defendant prosecutes an appeal from that order, as well as from the original judgment, insisting that the court erred, under the facts disclosed by the record, in disallowing her alimony in the sum allowed for the children, and in fixing the fee of her attorneys at only $750.

THOMAS, J. The appellee and plaintiff below, W. H. H. Smith, brought this suit in the Harlan circuit court against his wife, the defendant and appellant here, Sarah Smith, seeking a divorce from the bonds of matrimony upon the ground that she had been guilty of adultery with J. E. Kirby, Edgar Thomas, J. H. Smith, "and others whose names are now unknown to the plaintiff." He charged that because of the defendant's unchastity she was an unfit person [1] It is scarcely necessary to state that, to have the custody of their children, whose however erroneous the judgment granting names and ages are Matilda Smith, aged 19 the divorce may be in our estimation, there years; Laura Smith, 17 years; Noble Smith, is no appeal from it, and it cannot be in15 years; Creed Smith, 12 years; Delano terfered with, but it is equally true that Smith, 10 years; and Edna Smith, 6 years. this court upon appeal, even where a diThe answer denied the allegations of the vorce has been granted and alimony disalpetition, except as to the charge of adul- lowed, may look into the record and the facts, tery with J. E. Kirby; and in another para- and, if it is found that the judgment angraph defendant pleaded that her conduct nulling the bonds of matrimony should not with Kirby occurred in the early part of have been rendered, to order and direct such the year 1912, and that plaintiff had full a judgment concerning alimony and the propknowledge of it and forgave the defendant erty rights of the parties as the law and and condoned the act, and afterwards lived facts authorize. Burns v. Burns, 173 Ky. and cohabited with her as his wife. In a 105, 190 S. W. 683; McClintock v. McClinthird paragraph, in which she made a coun- tock, 147 Ky. 409, 144 S. W. 68, 39 L. R. A. terclaim against plaintiff, she relied upon the (N. S.) 1127; Tilton v. Tilton, 29 S. W. 290, two statutory grounds of divorce of (1) cruel 16 Ky. Law Rep. 537; Zumbiel v. Zumbiel, and inhuman treatment toward her by the 113 Ky. 84, 69 S. W. 708, 24 Ky. Law Rep. defendant for not less than 6 months, in 590; Freeman v. Freeman, 13 S. W. 246, 11 such a manner as to indicate a settled aver- Ky. Law Rep. 824; and numerous other cassion to her and to destroy permanently her es which might be cited. peace and happiness, and which treatment consisted in beating, striking, and bruising the defendant, and falsely accusing her of committing the crime of adultery, and of maintaining a house of ill fame, and (2) abandonment without support for more than 12 months. She afterwards, by amended answer and counterclaim, alleged that plaintiff was guilty of living in adultery with one Eula Sergent, alias Eula Howard, and upon the three grounds relied upon in her counterclaim as amended she asked that she be granted an absolute divorce from her bonds of matrimony. Appropriate pleadings denied her allegations, and upon trial, after considerable preparation, the court sustained the prayer of the petition, and granted to plaintiff an absolute divorce, annulling the marriage between him and the defendant, and dismissed defendant's counterclaim for the same relief; but with the wife's character thus blackened he adjudged the custody of the children to the defendant, and allowed to her and them the use of a residence in Danville, Ky., where they had been living while the children attended school since August, 1912, and that plaintiff be required to pay for the joint use of the wife and children $150 per month, and that plaintiff should pay the expenses of the children in attending school. Afterwards defendant, upon notice, entered a motion to modify the judgment, and to allow to her a permanent sum in alimony, which she insisted upon as being fixed at $100,000, and that the attor

It therefore becomes necessary to look to the record to ascertain the facts and to determine the rights of the parties. It, in a large measure, portrays the dramatic as well as the pathetic. as the pathetic. In 1888 the plaintiff was living with his mother in Harlan county on about 500 acres of mountain land, a small portion of which was tillable, and it was bountifully supplied with timber upon the surface and minerals under the surface. His mother was old and feeble. There lived nearby a woman who was the mother of some three or four illegitimate children, one of whom was the defendant in this case, and she was 12 years of age. Through some arrangement the defendant went to live with the plaintiff and his mother to assist the latter in doing the household work and perhaps looking after her ailments. She was rather precocious physically and otherwise, and within a short time thereafter the plaintiff, who was then 35 years of age, began to show her such kindnesses and attentions as invariably captivate a female child of that age. He would give her presents, consisting of candy and other cheap articles, calculated to arouse her appreciation, and finally his conduct toward her assumed a fondling aspect, and resulted in him eventually seducing her. She became the mother of a child when she was only about 14 years of age. After that their illicit relations became more pronounced, until finally they were living in open adultery, and at regular periods a new child would be born, until 1899 or 1900,

This was done in August, 1912. From that time to the filing of this suit, which was on the 12th day of February, 1916, the wife and the children occupied the Danville residence, while plaintiff spent the greater portion of his time at the old homestead in Harlan county, but he would upon occasions visit his family in Danville. The children regularly attended school, and made at least an average advance in their studies. Both they and their mother seem to have built fair and honorable reputations in that community, as is attested by the testimony of the leading citizens of that town. One of the daughters is an organist of one of the leading churches there, while the other is a member of the choir. In the early part of 1912, and before the defendant and the children moved to Danville, the defendant was in Middlesboro, Ky., either on a trip going or returning to

them was attending school, and while there she met J. E. Kirby, whom she had known for quite a while, and in a weak moment she surrendered to his importunities, and while they were in a room together at a hotel the plaintiff appeared and found them jointly occupying the same room; and this is the act of adultery which defendant admits, and which she alleged and the proof establishes was condoned by the husband. Kirby further testified that he had just prior to that time had intercourse with defendant in Pineville, but this is refuted by counter testimony, and in addition the proof convinces us that the condonement was for all the offenses which the defendant committed with Kirby. Edgar Thomas testified that in the latter part of 1911 he met the defendant in Knoxville and he had intercourse with her at a hotel in that place, and that shortly thereafter, and perhaps the early part of the year 1912, he engaged in similar conduct with her at Middlesboro.

when plaintiff's mother died, defendant was the mother of five illegitimate children whose father was the plaintiff. They were then married, and several children were born after the marriage. She continued to live upon the farm, doing not only the house hold work, but milking and washing, and frequently working in the fields, and perhaps doing other work more assignable to masculine hands. The extent of that work was largely increased because plaintiff was, at the time defendant went to his home, engaged in getting out timber and working many hands, some of whom he boarded and fed. That character of work increased as plaintiff continued to buy more land surrounding his original place, until he acquired some four or five thousand acres, and at the time of the rendition of the judgment it was worth between $400,000 and $600,000. In addition he is shown to possess stock, the place where her daughters or one of cattle, and other property, the exact amount of which is not shown. The only assistance in cooking and doing the other kind of work herein stated which the defendant had was that furnished by her daughters as they grew large enough to help her. When she would be confined in childbirth it was never exceeding seven days, and then she would be put in a cabin in the yard, and not allowed to stay in the regular residence. But twice did she have a doctor to attend her, and at one time her child was born without any one being present. In 1910 plaintiff gave some kind of option on his land, the exact nature of which is not disclosed by the record, but he received therefor the sum of $10,000 in cash. The option was not exercised according to its terms, which resulted in the forfeiture of the $10,000 to plaintiff. Directly afterwards plaintiff and defendant made a trip, which was perhaps about the first time that either of them, especially defendant, was ever out of Harlan county. This trip was to points in Virginia and Washington, D. C., and after the return it appears that, through the importunities of defendant, the plaintiff was persuaded to give his children a better education than the facilities in the local public schools offered, and two of them were sent to a cheap school in Tennessee. The necessity for educating the other children as they grew old enough to receive it, and the desire of the two oldest, who had been sent away to school, to pursue higher branches, and the desire to rear her children in a better social atmosphere, with a full realization that they were able to do so, led Mrs. Smith to request her husband that they locate in some place where they could be furnished with appropriate educational facilities. They made some trips in search of a suitable location, with that end in view, and finally the husband purchased a house and lot in Danville, Ky., where the wife and children took up their temporary

[2] These acts of adultery, as testified to by the witness Thomas, are denied by the defendant, and there is nothing in the record, either by direct testimony of witnesses, by certificate of the officer taking the deposition, or the finding of the court, showing that the witness Thomas was a credible one, or that he bore a good character, as is required by section 2119, Kentucky Statutes; and, unless this is done in some one or more of the methods enumerated, the uncorroborated testimony of such a witness should not furnish grounds for dissolving the bonds of matrimony and destroying the law's cherished status of the parties, and indirectly heaping disgrace and humiliation upon the defendant and her innocent children. Besides, this witness was a most willing one. He acknowledges that he gave his deposition without being forced to do so, and after he had been promised his expenses and payment for his lost time.

W. 136, 19 Ky. Law Rep. 1936, it is said, in, intercourse in which he engaged with despeaking of this character of witness, "that but little credit should ordinarily be given to the testimony of a corespondent who voluntarily testifies against a respondent"; and in Evans v. Evans, 93 Ky. 510, 20 S. W. 605, 14 Ky. Law Rep. 628, it is said, "So far as this record shows he (the co-respondent) was an entirely willing witness. He does not appear to have been attached or made to testify. It is not even shown that he was subpoenaed as a witness. He was entirely willing to not only destroy the wife, affix a stain to her children and family, but also to testify to conduct degrading to and highly blamable in himself. Such evidence is justly subject to suspicion. It comes in doubtful form." Text-writers and other courts lay down the same cautionary rule in the admission of the testimony of the character of witness under consideration, and, under the circumstances, we seriously doubt if this witness' testimony should have been given any weight at all.

fendant, but that he bore the burden of it in carrying out a loyal duty to his uncle. He testified that the act of intercourse occurred between 9 and 10 o'clock at night, and in the room where he was sleeping, which was down stairs. Defendant and her son Noble testified that nothing of the kind occurred, and that the defendant, until after 12 o'clock that night, was sitting up with her youngest son Dan, who was at that time sick and required nursing; that she retired about 12 o'clock in a room upstairs, where she remained throughout the night. The credibility of the nephew, Smith, is not established by any of the methods pointed out by the section of the statute, supra; and in addition to his being a willing witness, testifying without being served with any character of process, he is furthermore discredited by being a detective, specially employed to create, procure, and establish the grounds for divorce; and he appears to not only be able and willing to play that part, but likewise and with equal determination to play the part of paramour and manufacturer of testimony; and he also served a time in the penitentiary for voluntary manslaughter. In 9 R. C. L. 331, in discussing the effect of testimony from a witness like this, the text is:

"It has been said that the testimony of a priother, with the view of learning facts on which to base a suit for divorce, will be regarded with much suspicion, especially where it does not appear that his pay is independent of the successful effect of his evidence; and it may be stated as a very generally recognized rule that testimony of detectives introduced to prove adultery must be scrutinized closely and rethat such testimony is of very little weight in ceived with great caution. Usually it is held proving the offense. Some cases even go to the extent of holding that a decree should not be granted on the unsupported testimony of such persons; and this would seem to be especially proper where the detectives are employed with the view of procuring evidence by promoting the act of adultery."

The only other testimony in support of the charge against the defendant comes from the plaintiff's nephew J. H. Smith. He lives in Tennessee, and is about the age of the defendant, and has known her all of his life. Some time in the latter part of 1915 he met plaintiff in Middlesboro, which it seems was by appointment, and plaintiff there said to to him "that his (plaintiff's) wife was running around from one place to another to Knoxville and Cincinnati, and whoring it around, and he wanted him (J. H. Smith) to help catch her." This charge was in the face of the facts that no trip by the wife to any of the places mentioned or elsewhere was proven, or offered to be proven, after she went with her children to Danville, in 1912. Letters passed between them, resulting in the nephew assuming the role of detective, and, in consideration of an agreement to be paid $250 in cash and his expenses, he started out on his mission. He visited his aunt, the defendant, at her home, where he was cordially re[4] The excerpt just taken is supported ceived by all of the family, and he and de- by these cases found in the notes: Taft v. fendant went to some of the stores in Dan- Taft, 80 Vt. 256, 67 Atl. 703, 130 Am. St. Rep. ville in the daytime and perhaps took a trip 994, 12 Ann. Cas. 959, and Dennis v. Dennis, around the town in a buggy. Nothing im- 68 Conn. 186, 36 Atl. 34, 34 L. R. A. 449, 57 proper occurred, and witness stayed over Am. St. Rep. 95. So that we find that this night at defendant's home, leaving the next witness, who is the only one testifying to morning, and within a short time thereafter any adulterous acts of defendant occurring he again came to Danville and spent another subsequent to the condonement, labors under night, when, as he claims, he had intercourse the difficulties of (a) not having his creditawith defendant. This was, according to his bility certified to or shown in the manner testimony, in the early part of 1916 and just required by the statute; (b) is himself a before the filing of the petition. He states corespondent; (c) is a willing witness, that in furtherance of his detective work he giving his testimony without being brought derided the plaintiff to the defendant, and into court with legal process and being paid stated to her that she was ill-mated, and for his services; (d) he is an ex-convict; and, that she should separate from the plaintiff, lastly, he is a detective, "employed with the and that he would separate from his wife, view of procuring evidence by promoting each of them obtain a divorce, and then the act of adultery." There could scarcely marry. He furthermore acknowledges that be more discrediting facts arrayed against he had ill will toward the defendant, and the credibility of his testimony, and, when that he did not particularly desire the act of there is added to this the testimony of the de

fendant and her son that no such occurrence, been judicial doubts and conflicts concerning it, happened, we are bound to conclude that if and some differences created by legislation, the trial court accepted the testimony of this But in a general way the doctrine is everywhere recognized." witness, and upon it convicted the defendant, it was clearly erroneous and unauthorized.