Nelson v. Nelson

• Decision Date: 20 December 1886
• Citation: 2 S.W. 413,90 Mo. 460
• Parties: Nelson, Appellant, v. Nelson, Administrator
• Court: Missouri Supreme Court

2 S.W. 413

90 Mo. 460

Nelson, Appellant, v. Nelson, Administrator

Supreme Court of Missouri

December 20, 1886

Appeal from Knox Circuit Court. -- Hon. Ben. E. Turner, Judge.

Reversed.

Frank P. Hall for appellant.

The greatest mistake made by the court below was in allowing the introduction of the memorandum book as evidence. It is admitted that the account books of deceased persons are admissible upon certain conditions to prove matters of debit and credit therein. But (1) they must be books of original entry. (2) The accounts must have been kept in the regular course of business and be regular upon their face. The entries must be made at or near the time of each particular transaction. See notes to case of Union Bank v Knapp, 15 American Decisions, 191 to 198; Cummings v. Nichols, 13 N.H. 420. An interval of one day between the time of making the entry in the book and date of transaction upon which the entry was based was held fatal in case of Walter v. Bollman, 8 Watts, 544. Cook v Ashmead, 2 Mills, 268; Koch v. Howell, 6 W. & S. 350. The book in question is wanting in all these essentials. It was irregular upon its face, incompetent, and should have been excluded as evidence, as asked by appellant.

L. F Cottey for respondent.

The account book kept by Robt. Nelson in his life-time was properly admitted in evidence for the purpose of showing the account charged against Wm. H. Nelson, and as to other heirs to show his manner of doing business, and that he kept accounts against them as well as against his son, William H. This book was in the handwriting of Robert Nelson, and was the only book kept by him. John R. Nelson says: "The account book which has just been read in evidence is in the handwriting of my father, Robert Nelson. I know it is the identical book kept by him in his lifetime in which are recorded the advancements of money and property to each of his children." When the books produced were proven to be the "only books" of the deceased, such proof was held equivalent, in Patrick v. Jack, 82 Ill. 81, to prove that they were books of original entry, the court saying per Judge Scott: "The controversy has relation to mutual accounts between defendant and plaintiff's intestate. The court before whom the trial was had examined the books kept by defendant and decedent, and found a small balance due defendant, and with that conclusion we see no reason to be dissatisfied." While the evidence as to the books kept by decedent is not, perhaps, as full as the statute, if construed strictly, would seem to require, we think the proof is sufficient to warrant the action of the court in submitting them in evidence. It is shown they were the books of decedent, and the "only books" kept by him. That is equivalent to proof that they were books of "original entry." Evidence that they were the "only books" kept by deceased in his business, is sufficient proof of that fact. Any other conclusion would be an absurdity. It is also proven that settlements had been made by them with numerous persons, and the books had been found correct. That is the substance of what the statute requires to make the books complete evidence. But in addition to all this proof, it further appears, when the books were shown to defendant by plaintiff, before any contention arose between the parties, he made no objection to them. When all the evidence is considered together, it is sufficient to justify the action of the court in admitting the books in evidence. Ray v. Loper, 65 Mo. 470.

OPINION

Black, J.

The respondent, as the administrator of the estate of Robt. Nelson, made final settlement, and at the same time filed in the probate court a motion for an order of distribution. The motion states the amount of money in his hands, that each of the six heirs of the intestate had received advancements from their father, and gives a detailed account of the amounts advanced to each child the appellant being charged with fourteen items. The probate court made an order of distribution charging the appellant with all of the items presented against him by the administrator, which was affirmed on a trial anew in the circuit court. Three only of the fourteen items are controverted by appellant. The administrator read in evidence, over the objections of appellant, an account or memorandum book, which, it is...