Kidd v. Guibar

• Decision Date: 31 October 1876
• Parties: THOS. KIDD, et al., Respondents, v. FRANCIS E. GUIBAR, Appellant.
• Court: Missouri Supreme Court

63 Mo. 342

THOS. KIDD, et al., Respondents,

v.FRANCIS E. GUIBAR, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jefferson Circuit Court.

A. Green, for Appellant, cited: Picot vs. Biddle's Adm'r, 35 Mo. 29.

John L. Thomas & Bro., for Respondents, cited: Picot vs. Biddle's Adm'r, 35 Mo. 29, and cases there cited; Baker vs. Runckle's Exec'r, 41 Mo. 391.

HOUGH, Judge, delivered the opinion of the court.

This was an appeal from a final settlement in the probate court of Jefferson county to the circuit court of said county; from the judgment of which last named court the defendant has appealed to this court.

On the 22d day of October, 1867, the defendant was appointed guardian of the person and estate of Mary Isabella Simpson, who afterwards intermarried with the plaintiff, Thomas Kidd. Annual settlements were made by the defendant in 1868, and in 1872; and in 1874, after the intermarriage of the plaintiffs, a final settlement was had in the probate court, in which certain allowances granted to the guardian in his annual settlements, for the maintenance and education of his ward, were reviewed, disapproved and set aside. From this judgment the defendant appealed to the circuit court, where, on trial de novo, that court likewise decided that the guardian was not entitled to the credits for maintenance and education allowed in the annual settlements.

It appears from the record that the original annual settlements and accompanying vouchers were lost, and the contents thereof, and the nature of the disbursements reported and allowed as having been made by the guardian for the benefit of the ward, were shown by parol testimony against the objections of the defendant. The entries of record showing that annual settlements had been made, and the amount of the ward's estate received and disbursed by the guardian, were relied upon by him as being conclusive of his right to the credits therein recited to have been allowed. The plaintiffs were unable to show the exact amount of any one of the lost vouchers, but it was admitted by the guardian, who was called as a witness for the plaintiffs, that all the allowances received by him, except for “expenses of administration,” as he termed it, were for board, clothing, tuition, and medical attendance. Testimony was introduced in relation to these charges, from which the circuit court found that the guardian was not entitled to any allowance whatever for or on account of any one of them.

It is not claimed that the testimony was insufficient, in point of fact, to sustain the finding of the court; but it is insisted that, as the annual settlements were lost, parol testimony was inadmissible to impair the effect of the records of the probate court, showing that certain credits had...