until a late hour with his friends, and left his wife alone, and this seems to have been proven; and if he promised to care for the little boys, and they were away from home, at night, at eight o'clock, while they may have been perfectly safe, it can not be said, that her exhibitions of temper on these occasions were entirely without excuse, and free from any fault upon his part. The want of affection, between the wife and the husband's mother, appears to have been without any good reason, upon either side, and each is proven to have expressed a dislike for the other. The proof abundantly shows, that the husband's mother was a woman of fine character and no one gainsays it, but, the unexplainable dislike, sometimes, of husbands, as well as wives, for their mothers-in-law, is a part of the history and traditions of our race, and though usually such dislike is foolish and unwarranted, each one will have an opinion upon this subject, somewhat, in accordance with his experiences. In all of this, however, there appears no legal reason for the husband abandoning his wife, and thereafter, turning a deaf ear to all attempts at reconciliation upon her part, as though the wife had been guilty of some grave wrong, which human nature and morality could not tolerate. When men and women enter into the marriage relation, they take each other with all their weaknesses, faults and foibles, and must bear with each other, unless, the one or the other is guilty of something, which the law makes an excuse for abandonment. The complaints of the wife, about the use of the family automobile, and the attentions of the husband to his mother's company, are without any good reason, but, they constitute no reason for the husband to abandon his wife. The legislative authorities in this state, have never thought it necessary to provide any relief for a husband, on account of the temper of his wife. While subsection 3 of that clause of section 2117, Ky. Stats. which enumerates the grounds for a divorce on behalf of the wife, when not in like fault, provides, that she may obtain a divorce from the husband, on account of such cruel beating or injury, or attempts at injury as indicate an outrageous temper in the husband, or probable danger to her life, or great injury from remaining with him. The temper, it will be observed, which will justify a divorce from the hushand, is one evidenced by cruel beating or injury, or at

tempt at injury. By subsection 2, of the same clause, a divorce will be granted to her, if the husband, habitually behaves toward her, for not less than six months, in such cruel and inhuman manner, as to indicate a settled aversion to her, or to permanently destroy her peace and happiness. Not every sporadic exhibition of temper, or several such exhibitions, on the part of the husband, will justify the wife in abandoning him, if they are not habitual and do not show a settled aversion or permanently destroy her peace and happiness. It has never been held, that occasional petulances of temper, or rude language, by the husband, is sufficient ground to justify the wife in abandoning her husband. Beall v. Beall, 80 Ky. 675; Morrison v. Morrison, 10 R. 683.

To hold, that occasional outbursts of temper and sallies of passion, which were of such character, as not to show a settled aversion to the wife, or permanently destroy her peace and happiness, or to render it probable, that she would be in danger of losing her life, or bodily injury from remaining with her husband, do not justify, the wife in abandoning her husband; a holding that such exhibitions of temper or passion would justify the husband in the abandonment of his wife, would surely not rest upon any logical foundation. This court has continuously held, that mere fits of ill-temper by the wife or occasional quarrels with her husband, caused by her, or scolding by the wife, do not justify the husband, in abandoning his wife, in the absence of anything to endanger his personal safety. Canine v. Canine, 13 R. 124; Hodgen v. Hodgen, 160 Ky. 267; Logan v. Logan, 2 B. M. 142.

The purpose of the law is to impress upon parties to the marriage, that it is as permanent as their lives, and can not be thrown off for mere whims, or mere frailties, or shortcomings, of the parties, which do not amount to moral delinquencies, nor endanger life or person, nor permanently destroy happiness, and altogether a wife may be somewhat disagreeable, and make the marriage relation, frequently, unhappy, the husband has no legal right to abandon her. If he abandons her without legal right, the common law obligation still rests upon him to maintain and support her, and hence, she is entitled to alimony from him, and to be entitled to alimony, it is

not necessary, that she should be entirely free of fault, where she has been guilty of no moral delinquency, because such requirements, would give to the husband an undue advantage, and besides, most marital troubles, are to some extent, the fault of both parties. 1 R. C. L. 879; Green v. Green, 152 Ky. 486; Pore v. Pore, 20 R. 1980; Lacey v. Lacey, 95 Ky. 110; Anderson v. Anderson, 113 Ky. 389; Zumbeil v. Zumbeil, 113 Ky. 841; Club v. Club, 23 R. 650; Griffin v. Griffin, 8 B. M. 120.

(b) As to the amount of the alimony, the proof shows, that the wife is entirely without property, and the principle applying, whether the granting of permanent alimony be considered as damages for breach of the marriage covenant, or the exercise of a sound judicial discretion, in providing for the wife an allowance out of the husband's estate, is that the alimony awarded, should be so apportioned, as to secure to the wife, the same social standing, comforts, and luxuries of life, as she would have had, but for the enforced separation, considering the amount of the husband's estate, and the care of the children, if any, and the circumstances and cause of the separation; the husband's present and future prospects and his ability to earn money. Muir v. Muir, 133 Ky. 125; Shehan v. Shehan, 152 Ky. 191; Green v. Green, 152 Ky. 486. Without discussing the various speculative opinions, given by many witnesses, as, to the value of the husband's estate, it appears for the purposes of this adjudication, that his estate is of the value of near to $150,000.00. There has never been a hard and fast rule adopted, as to what proportion of the estate of the husband, should be awarded the wife as permanent alimony, but it is a matter confided to the sound discretion of the chancellor, and each case has been determined upon the special facts and circumstances appearing and the adjudicated cases show, that the allowance has varied from a fifth to one-half of the husband's estate in cases, where divorce has been granted, as will appear from the following cases: Irwin v. Irwin, 107 Ky. 24; Muir v. Muir, 133 Ky. 125; McKean v. McKean, 83 Ky. 208; Hawkins v. Ragsdale, 80 Ky. 353; Fishle v. Fishle, 2 Litt. 338; Lockridge v. Lockridge, 3 Dana 28; Thornberry v. Thornberry, 4 Litt. 251; Lacey v. Lacey, 95 Ky. 110; Day v. Day, 168 Ky. 68; Quisenberry v. Quisenberry, 2 Duv. 197; Pemberton v. Pemberton,

169 Ky. 476; Murray v. Murray, 163 Ky. 546; Shehan v. Shehan, 132 Ky. 191; Thompson v. Thompson, 155 Ky. 608; Barlow v. Barlow, 90 S. W. 216; Hooe v. Hooe, 92 S. W. 317; McClintock v. McClintock, 144 S. W. 63; Pence v. Pence, 6 B. M. 496. It is gathered, however, from the adjudicated cases, that the weight of authority, is to the effect, that a rule allowing to the wife one-third of the delinquent husband's estate, is the proper proportion, but, the special circumstances of the various cases, have caused the courts, not to adhere to this rule, in the great majority of cases, as in many cases the husband's salary or earnings or ability to earn is all the estate he has, or he may have children to maintain, or the particular cause of separation may influence the decision. Evidently, the wife should not be left in a worse condition, because of the wrongful desertion of her by her husband. In the instant case, the allowance is approximately one-third of the husband's present estate. It seems to be reasonably sufficient to provide the wife with a comfortable support, in accordance with the requirements of her past station in life, and her social environments. She asked that the use of the dwelling house be awarded her, as a part of her alimony, but, not under the restrictions, which the court placed upon its use. It can be seen, that under these restrictions, the house may become a burden to her and she will be compelled to use up the remainder of her allowance in maintaining a large house.

We are of the opinion, that the portion of the judgment decreeing to her the use of the house, should be modified as follows: that she have the use so long as she may desire to do so, and does not become the wife of another, with the conditions, that she keep it in a reasonable state of repair, and without the right to rent it and the husband pay the taxes thereon, but, in the event, at any time, she elects to give up the possession and use of the house, to the husband, she will give him notice of that fact, after which time, he will pay to her the sum of $50.00 per month, so long as she does not marry another, in lieu of the house, but, if the husband desires to do so, he may pay to her the sum of $12,500.00 which is practically the value of the use of the house for the period of twenty-six, and a fraction years, the period of the wife's probability of living and be discharged from

the obligation to pay to her the sum of $50.00 per month. In other respects the judgment is affirmed.

The judgment is therefore affirmed upon the appeal, and reversed upon the cross-appeal.

1.

2.

3.

4.

5.

Gragg v. Levi, et al.

(Decided February 4, 1919.)

Appeal from Harrison Circuit Court.

Limitation of Actions-Action to Recover Money Paid by Mistake. An action to recover money paid through mistake, must be commenced within five years next after the cause of action accrues; and the cause of action shall not be deemed to have accrued until the discovery of mistake, or until it could, by the exercise of reasonable diligence, have been discovered; nevertheless no such action shall be brought ten years after the making of the mistake.

Limitation of Actions-Mistake.-The duty is upon the complainant to exercise reasonable diligence to discover the mistake, and if he fails to do so, an action by him will not lie after the expiration of the five year period.

Limitation of Actions-Mistake.-If a plaintiff allow the five year period to elapse before commencing his action, and thereafter attempts to rely upon the discovery of the mistake within five years next before the commencement of his action, it is incumbent upon him to both allege and prove, if denied, that the mistake was not only discovered within the five years next before the institution of the action, but that the mistake could not have been sooner discovered by him by the exercise of reasonable diligence on his part.

Limitation of Actions-Mistake.-Although it be alleged by plaintiff that the mistake was first discovered within five years next before the commencement of the action, and that it could not have been sooner discovered by him by the use of reasonable diligence, yet his action will be dismissed if he fails to establish both of said allegations by proof, if they be denied. Limitation of Actions-Mistake. The presumption will be indulged, in the absence of a showing to the contrary, that the mistake was discovered by the party against whom it was made immediately following its occurrence.

C. M. JEWETT for appellant.

HANSON PETERSON for appellees.

OPINION OF THE COURT BY JUDGE SAMPSON-Reversing.