(248 S.W.)

himself to other persons and perform labor for them and to receive and have to his sole and separate use all wages earned by him, and that, in pursuance of such emancipation, young Simmons had left the parental roof and for two years had been earning his own livelihood, and receiving and converting to his own use and benefit all wages earned by him. The trial court directed the jury to find a verdict for the doctor, and Simmons appeals. He insists (1) that the court erred in excluding competent and relevant evidence; (2) in giving a peremptory instruction to find for Dr. Stewart; and (3), the verdict did not authorize the judgment.

"Emancipation of a minor occurs by the voluntary act of the parent in surrendering the rights or renouncing the duties of his position, or in some way conducting himself in relation ther performance of them. The emancipation thereto in a manner inconsistent with any furmay be express or implied, or in writing or oral. The test to be applied is that of the preservation or destruction of the parental and filial relations."

[4] It appears to be the general rule that an infant is emancipated when he works for wages or otherwise supports himself and pays his board and other expenses with the consent of the parent. In every case where the parent releases his control and authority [1, 2] It may be stated as the settled law over the child and consents for him to go of this state that where a parent expressly forth and make his own living, to which the emancipates his child he cannot thereafter child agrees, at the time being of sufficient claim the wages earned by the said child, nor age and physical strength to take care of is he liable for necessaries furnished him. and support himself, his parent is relieved Rounds Bros. v. McDaniel, 133 Ky. 669. The only question, therefore, in this case, necessary for determination is: Did the father expressly emancipate young Simmons with in the meaning of the law? According to 'the evidence appellant had married a second wife-stepmother to young Simmons. She and young Simmons could not get along, and the father found it necessary, as he thought, to the peace of his home that he require his son to go elsewhere to live. Thereupon the father and son entered into an agreement whereby the father gave to the son permission to go out into the world and make his own living and to have all wages earned by him. To this arrangement the son consented and relinquished his father from further obligation to look after him. He took employment and received wages and converted the same to his own use. His father claimed no part thereof. This continued several months before the son became sick. The principle is thus stated in 20 R. C. L. p. 611:

"Where there has been a complete emancipation by express agreement a minor son occupies the same legal relation to his father as if he had arrived at full age. The legal duty of the parent to maintain and support him and defray his necessary expenses is extinguished, and so is the right of the parent to claim the services and wages of the child. The father is bound by it as he is by any other contract, and he cannot afterward revoke the agreement."

[3] In dealing with this subject and in stating the rule as to what constitutes emancipation, 29 Cyc. p. 1673, reads:

of the necessity of further caring for the child, and is not bound for necessaries furnished to him. This is upon the theory that the infant, who is able to earn a living and has consented to do so and has been earning and receiving wages, is able to pay for such necessaries, and that the father, who has relinquished his right and claim to the services of the child, is no longer bound to support or take care of him. This, of course, we would not apply in a case where the child was not physically or mentally able to take care of himself or where he, by reason of his tender years, was without discretion sufficient to enable him to manage and take care of himself.

Aside from appellant Simmons' written declaration before the operation was performed, that he would not be responsible for the fees of the surgeon performing the operation, we must hold that he is not legally liable to the surgeon for the bill. Undoubtedly the son had been emancipated by his father and had accepted the emancipation. He had gone out in the world upon his own account and had been selling his services to others and receiving wages which he turned to his exclusive use. This was an emancipation both within the letter and the spirit of the law. The father was not, therefore, liable for the necessaries furnished the son, including the surgical operation.

For the reasons indicated, the motion for appeal is sustained, the appeal granted, and the judgment is reversed, for proceedings consistent herewith.

Judgment reversed.

DUKE v. ALLEN et al.

(Court of Appeals of Kentucky. March 20, 1923.)

move the cause to the Floyd circuit court for trial, which motion was also overruled. Having declined to plead further, judgment was entered decreeing partition in accordance with the prayer of the petition. Effie

1. Courts 472 (3)-County court and circuit Duke appeals. court have concurrent jurisdiction.

[1] Subject to the right of a party to have Subject to the right of a party to have the the action removed from the county court action removed from the county court to the to the circuit court, after the filing of an circuit court after filing an answer controvert-answer controverting the allegations of the ing the allegations of the petition, and contest-petition, or contesting the rights therein ing the rights therein claimed, county courts and circuit courts have concurrent jurisdiction claimed, county courts and circuit courts of partition proceedings, under Civ. Code Prac. have concurrent jurisdiction of partition § 499, subsecs. 1, 10-12. proceedings, and, from a final judgment rendered by either court, an appeal may be 2. Partition taken to this court. Civil Code of Practice, § 499, subsecs. 1, 10, 11, and 12.

12(5) - Remaindermen cannot have compulsory partition during life tenancy of entire property.

Remaindermen cannot have compulsory partition where there is an outstanding life estate in the entire property, since the object of partition is to avoid the inconvenience which results from a joint or common possession, and therefore it was improper to decree partition of a tract of land which was subject to the widow's dower right to occupy and enjoy for her life.

Appeal from Circuit Court, Floyd County. Suit for partition by Susan Allen and others against Effie Duke. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions to dismiss the partition.

[2] If, in requesting the partition, the widow had agreed to surrender her right of possession, a different question would be presented, but the partition was asked and granted on the express condition that it should not interfere with her right as life tenant to use, occupy, and enjoy the property as her own. Though, because of the special statutes there in force, the courts of some of the states take a different view of

the question, it is generally held, and such is the rule in this state, that remaindermen cannot have compulsory partition where there is an outstanding life estate in the entire property. Turley v. Turley, 193 Ky. 151, 235 S. W. 18; Berry v. Lewis, 118 Ky.

B. F. Combs and A. B. Combs, both of 652, 82 S. W. 252, 84 S. W. 526, 26 Ky. Law Prestonsburg, for appellant. Rep. 530, 27 Ky. Law Rep. 109; Eversole A. J. May and W. P. Mayo, both of Pres- v. Combs, 130 Ky. 82, 112 S. W. 1132; Savtonsburg, for appellees. age v. Savage, 19 Or. 112, 23 Pac. 890, 20 Am. St. Rep. 795; Nichols v. Nichols, 28

CLAY, J. T. G. Allen, a resident of Vt. 228, 67 Am. Dec. 699; Culver v. Culver, Floyd county, died intestate, leaving a wid-2 Root, 278; Pabst Brewing Co. v. Melms, ow, Susan Allen, and six children, Coly 105 Wis. 441, 81 N. W. 882, 76 Am. St. Rep. Allen, J. H. Allen, C. E. Allen, Rosalie Les- 921. The reason for the rule is that the oblie, Octavia Combs, and Effie Duke. In an action for partition and allotment of dower, a tract of land containing 190 acres was conveyed to the widow for life, while the remainder of the land was partitioned and conveyed to the children.

jects of the partition are to avoid the inconveniences which result from a joint or common possession and enable the petitioner to possess, enjoy, and improve his share in severalty. Therefore, if the petitioner is neither in possession nor entitled to possession, he could not possess and enjoy his share in severalty, even if it were set apart to him, and, that being true, there are no

This suit was brought in the Floyd county court by the widow and five of the children against Effie Duke, the other child, for a partition of the dower tract, subject to inconveniences of a joint or common possesthe right of the widow to occupy and enjoy the lands and improvements thereon for and during her natural life, the widow joining in the action and requesting the division among the children so that they might each make such improvements on their respective shares as they might desire. Her demurrer to the petition having been overruled, Effie Duke then filed a motion to re

sion of which he can complain. Not only then, would the proceeding fail of its purpose, but the partition, though equal when made, might be very unequal when the estate should vest in possession. It follows that the court erred in granting the relief prayed.

Judgment reversed, and cause remanded, with directions to dismiss the petition.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.)

Appeal from Circuit Court, Clay County. T. C. McDaniel was convicted of violating [3, 4] The only provision of the Statutes the liquor laws, and he appeals. Affirmed. permitting such use of liquor is that found in Roy W. House, of Manchester, for appel-section 2554a8, to the effect that a person lant.

may have such liquors in his residence for the use of himself and bona fide guests, when lawfully obtained. That is certainly not applicable to the facts in this case. It is intimated that the witness had a cold, and that appellant had a right to give him a drink for that purpose. This contention was elaborately discussed in the case of Ricketts v. Com., 197 Ky. 571, 247 S. W. 731, and decided adversely to appellant's contention.

Perceiving no error, judgment is affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

his father and mother about the place. In HAGAN et al. v. MASON-HANGER CONST. 1919 he cultivated a small crop of corn and

CO. et al.

(Court of Appeals of Kentucky. March 16,

1923.)

also a small patch of tobacco on his own account. He owned a horse, and perhaps some other personal property, which he left at home. His father is a very poor man. He sold his son's crop of tobacco for $20, which he converted to his own use, and used the corn in taking care of the family. While away young Hagan wrote his father one letter, telling him to sell the horse, but he did not give the father the funds. While away young Hagan never sent any part of his wages to his father or mother. Neither of them derived any part of their support from the son during his absence. In fact they had never been dependent upon him so far as the evidence shows, although they ex

Master and servant 405 (5), 417(7)-Evidence held to sustain board's finding parents were not dependent on deceased employee. Evidence that deceased employee, who was a minor, had not contributed anything to the support of his parents during the past six months, and in fact they did not know where he was, but that previous to that time he had given them certain personal property on leaving home, held to sustain the finding of the Compensation Board that the parents were not dependent on the deceased employee, so that such finding was conclusive upon the courts. Appeal from Circuit Court, Fayette pected aid from him in the future. Although County.

he left some personal property at home when he went away, this appears to have been a facts the Board of Compensation held that— gift, if it passed to his father. Upon these

"For six months prior to his death he [Erest] did not contribute anything to the support of either parent. In fact they did not know what had become of their son, as he had not written them for several months. At the date this young man was killed he was boarding at Lexington, Ky., away from the home of his parents. They were farming in Casey county, and by their own efforts were decedent, whom they had not heard from or reable to get along without contribution from the ceived any contribution from, for something

Matt. S. Walton, of Lexington, and Chas.like six months prior to his death. The parents I. Dawson, of Frankfort, for appellees.

failed to qualify as dependents under the law at the date of the accident resulting in the death of their son, and hence they are not entitled to compensation in this case."

This was a finding of fact, fully supported by the evidence. By the terms of the act it is the duty of the board to make a finding of fact, and if this finding of fact be supported by the evidence, or any part of it, it is conclusive upon the courts. Andrews Steel Co. v. McDermott, 192 Ky. 680, 234 S. W. 275.

SAMPSON, C. J. This appeal involves the correctness of a ruling of the Board of Workmen's Compensation, denying Art Hagan and his wife compensation as dependents of their deceased son, Ernest Hagan, who lost his life by an accident arising out of and in the course of his employment while working for appellee Mason-Hanger Construction Company. Ernest Hagan was a boy about 18 years of age, when, in August, 1919, he left his home on a farm in Casey county and made his way to Lexington, where he shortly thereafter took employment with a farmer and worked for a short time. He then obtained a job with the appellee Mason-Hanger Construction Company at the time engaged in building the La Fayette Hotel in the city of Lexington. While young Hagan was on the roof of the building engaged in his employment, he fell through an air shaft, 14 stories down to the basement, and was instantly killed. He left home in August, 1919, and came to his death in June, 1920. Before he left home he helped Judgment affirmed.

As young Hagan was not contributing to the support of his parents at the time of his death, and the parents, who are now appellants, were not dependent upon him for support within the meaning of the statute under which the Compensation Board operates, they were not entitled to compensation, and the board properly denied their application.

Inasmuch as the Fayette circuit court reached this conclusion, the judgment must be and is affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.)

Appeal from Circuit Court, Greene Coun

The circuit court sustained the demurrerty; W. W. Bandy, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-57