90 Mo. 460 | Mo. | 1886
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 admitted, is in the hand
“December 2, 1872. William H. Nelson charged with $240.00, being for S. W. ‡ of S. W. S. 33, T. 60, R. 10. December, 1859. To one note of hand bearing same date, amount fifty dollars.
“ December, 1874. To sundry tax receipts, amounting in all to $161.22.”
We have in this state no statute which determines by what evidence an advancement made to a child shall be proved, as seems to be the case in some of the states, and hence the proof may be made by contemporaneous memoranda, charges in the form of accounts, or by parol evidence. The first item in the account before us, which is the one for the land, appears under date of December, 1872, and is followed by two other items under date of April and December, 1854. Again, another of date October, 1857, is followed by one of date December, 1854, and again, one of date January, 1872, is followed by one of date in 1857. From the face of the accounts many of the items must have been entered long after the transactions occurred. The other evidence furnishes no •explanation ; on the contrary the administrator testified that the land mentioned in the first disputed item was deeded to William in 1857, and that he could not explain why the charge for it was not made at that time instead ■of fifteen years thereafter. Book accounts are admissible in the party’s favor who kept them only when the entries were made contemporaneous with the transaction recorded. Grlf. Ev. [13 Ed.] sec. 118. The same rule applies to the books and entries of deceased persons. Whart. Evid., secs. 246, 688. Subsequent verbal declarations made by the father to the child, claimed to have been .advanced, and not by the latter at the time controverted, may be offered in evidence; but verbal declarations by
But in this case the accounts were evidently offered in the interest of the intestate, and for the reasons before stated should have been excluded, except as to such entries as are shown to have been made contemporaneous with the fact recorded. It may be stated that, aside from the book, there is abundant evidence to warrant the finding of the court as to the charges for the land and note, but without the book account there is no evidence whatever as to the amount charged because of tax receipts.
The judgment is reversed and the cause remanded,.
