Sleet v. Gilmore

Missouri Court of Appeals

Sleet v. Gilmore

28 Mo. App. 655, 1888 Mo. App. LEXIS 45

DecidedJanuary 31, 1888

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Sleet v. Gilmore, 28 Mo. App. 655, 1888 Mo. App. LEXIS 45 (Mo. Ct. App. 1888).

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Opinion

Thompson, J.,

delivered the opinion of the court.

Virginia A. Sleet, a daughter of Richard Wommack, deceased, filed a petition in the probate court, setting up that in his lifetime the deceased made certain advancements to several of his other children, but mada none to. the petitioner. She, therefore, prayed that an account be taken of the amount advanced to the several children, and that distribution be made of the fund in the hands of the administrator in accordance with the result of such an accounting. On a trial anew in the circuit court, evidence was heard before the court sitting without a jury, from which the court found that the various sums which the deceased had given to some of his children in his lifetime were by him intended as [657]*657gifts and not as advancements ; and accordingly entered an order that the fund in the hands of the administrator should be distributed among his heirs without taking into account such sums. From this order the plaintiff prosecutes a writ of error.

The only ground on which we are asked to reverse the order is, that it is contrary to the weight of the evidence. We cannot revise the finding of the circuit court upon the evidence, for the conclusive reason that all of the evidence is not in the record. The bill of exceptions affirmatively shows that the deposition of the administrator, John T. Gilmore, was read in evidence, and this deposition is not copied therein. Roberts v. Bartlett, 26 Mo. App. 611.

Wherefore, it is ordered that the judgment of the circuit court be affirmed.

All the judges concur.

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Thompson, J.,

delivered the opinion of the court.

Virginia A. Sleet, a daughter of Richard Wommack, deceased, filed a petition in the probate court, setting up that in his lifetime the deceased made certain advancements to several of his other children, but mada none to. the petitioner. She, therefore, prayed that an account be taken of the amount advanced to the several children, and that distribution be made of the fund in the hands of the administrator in accordance with the result of such an accounting. On a trial anew in the circuit court, evidence was heard before the court sitting without a jury, from which the court found that the various sums which the deceased had given to some of his children in his lifetime were by him intended as [657]*657gifts and not as advancements ; and accordingly entered an order that the fund in the hands of the administrator should be distributed among his heirs without taking into account such sums. From this order the plaintiff prosecutes a writ of error.

The only ground on which we are asked to reverse the order is, that it is contrary to the weight of the evidence. We cannot revise the finding of the circuit court upon the evidence, for the conclusive reason that all of the evidence is not in the record. The bill of exceptions affirmatively shows that the deposition of the administrator, John T. Gilmore, was read in evidence, and this deposition is not copied therein. Roberts v. Bartlett, 26 Mo. App. 611.

Wherefore, it is ordered that the judgment of the circuit court be affirmed.

All the judges concur.

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28 Mo. App. 655, 1888 Mo. App. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sleet-v-gilmore-moctapp-1888.

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