*377Opinion by
Judge Pryor:James Smith, the appellant in this action, is a resident of 'Rock-castle County, and at the institution of this suit by him against the appellees lived within the boundary of the common school district in that county known as District No. 34. He had several children between the ages of six and twenty residing with him, and the appellees, who were the trustees of that district, refused to permit his children -to go to the school for the reason, as they insist and attempt to prove, the children were mulattoes. The mother of these children before her marriage with the appellant was named Jane Wiggins, and her mother Rosanna Wiggins. These trustees, one of them, is a half-brother of Mrs. Smith, the mother of the children, one a nephew and the other a cousin and they now allege that the father of Mrs. Wiggins, who is the mother of appellant’s wife, and a grandmother of the children, was the daughter of a negro man by the name of Dan Cabel, her mother being white.
A number of witnesses were introduced and examined by the appellees (the defendants) who prove that from general rumor it was understood that this negro man was the father of Mrs. Wiggins, the grandmother of these children, but several of them- also state that years ago they (the witnesses) went to school with Mrs. Wiggins, and this idea of negro origin must have had its inception at a later date, as it would have been rather difficult thirty years ago for a negro of the half-blood to have gained admittance as a scholar in the schools with white children, and if this old lady was recognized as a white scholar at that period it requires stronger proof than is here presented at the instance of appellees to change their own kindred from white to black.
Elias Cabel, who it seems was examined as a witness, is a brother of Mrs. Wiggins and he says that his mother never denied but that his sister was Dan Cabel’s daughter. This failure of the mother to deny the paternity of the daughter occurred when the witness, her son, was about five years old, and at the age of sixty-five he repeats the conversation he had with his mother on this subject. This character of testimony, connected with the reason before alluded to, constituted the proof upon which the defense is based. The children were produced in court and are shown from- their own appearance to be white children. The record shows that they are white *378children, and there was no reason so far as appears from the facts proven for excluding them from the privileges of this common school. Judgment is reversed and cause remanded with directions to award to appellant a new trial and for further proceedings consistent with this opinion.
McKee & Hopper, for appellant. J. G. Carter, George Denny, Jr., for appellees.