#### Witt v. Witt.

(Decided May *4,*1920.)

Appeal from Simpson Circuit Court.

1. Divorce — Living Separate and Apart Without Cohabitation— Sufficiency of Evidence. — Testimony of witnesses that when they were present at the home of the parties, plaintiff and defendant, though living in the same house, occupied separate rooms, was not sufficient to sustain the charge of living separate and apart without cohabitation.

*462. Divorce — Cruel and Inhuman Treatment. — In giving evidence to sustain the charge of cruel and inhuman treatment, facts and not conclusions should be stated by the witnesses. They should tell what they saw and heard, and the court will then determine whether the conduct of the husband was of such character as to amount to cruel and inhuman treatment.

3. Divorce — Costs.—In an action for divorce, the husband is not liable for the costs of his wife where she is in fault, and has ample estate to pay the costs.

WHITESIDES *&*BRADSHAW for appellant.

C. B. MOORE for appellee.

Opinion op the Court by

William Rogers Clay, Commissioner

Affirmin g.

Emma F. Witt brought this suit against ber husband, Charles N. Witt, for divorce and alimony. On final hearing her petition was dismissed at her cost, and sue appeals. ■ _ ! ■ s. !

The grounds on which the divorce was sought were: (1) Living apart without any cohabitation for five consecutive years next before the application; (2) habitual behavior towards her by the husband, for not less than six months, of such a cruel and inhuman character as to indicate a settled aversion to her, and to destroy permanently her peace and happiness.

At the time the suit was brought, plaintiff was sixty-seven years of age and defendant sixty-nine years of age. They had lived together for about forty-five years. She owned a life estate in a farm worth about .$4,000.00, while he owned an adjoining farm worth $7,500.00 or $8,000.00. The residence which they occupied was on plaintiff’s land.

We deem it unnecessary to set out the evidence. The only evidence tending to support the first ground was the'statement of witnesses that, when they were at the home of the parties, plaintiff and defendant, though living in the same house, occupied different rooms. In our opinion this evidence is not sufficient to sustain the charge. Burton v. Burton, 184 Ky. 268, 211 S. W. 869.

With' respect to the second ground, plaintiff’s evidence consisted of mere conclusions by the witnesses that defendant’s treatment of her was cruel or unkind. In giving evidence to sustain the charge of cruel and inhuman treatment, facts and not conclusions should be *47stated by the witnesses. They should tell what they saw and heard, and the court will then determine whether the conduct of the husband was of such a character as to amount to cruel and inhuman treatment. In view of the character of plaintiff’s evidence, the chancellor did not err in refusing the divorce on the ground of cruel and inhuman treatment.

Complaint is made of the fact that plaintiff was not allowed her costs, including a reasonable attorney’s fee. It is the rule that the wife is not entitled to costs if she is in fault, and has ample estate to pay the costs. Section 900, Kentucky Statutes; Wills v. Wills, 168 Ky. 35, 181 S. W. 619. Here, the plaintiff had ample estate to pay the costs, and several witnesses testified without contradiction that in all her misunderstandings and quarrels with her husband she was the one who was principally at fault. In view of this evidence, we cannot say that the chancellor erred in adjudging that plaintiff should pay her own costs. -

Judgment affirmed.