78 Minn. 320 | Minn. | 1899
An appeal was taken from an order of the probate court settling the account of Unke, as guardian of the five Dahlmier children. Qn the trial in the district court, judgment was ordered against Unke in the sum of $3,263.50, and he appeals from an, order denying a new trial.
In 1886, Henry Dahlmier died intestate, leaving his widow and four children surviving him. His fifth child was born shortly after his death. He left 160 acres of land, 80 acres of which was his homestead, so that his wife had a life estate in this 80 and an undivided one-third of the other 80. In June, 1887, the -widow married the appellant, Unke, and thereafter he resided with her on her said homestead. Her five children resided with them, as also did a child of his own by a former marriage. On January 1, 1888, he was appointed guardian of her five children, and, as such guardian, received at that time promissory notes payable to the deceased amounting to $1,250, the same having come to the children as a part of their share of their father’s estate. Some time afterwards, but just when does not appear, Unke collected the notes, and used the money to buy another 80 acres of land, the title to which he took in his own name. He cultivated this 80, and the Dahlmier 160, thereafter, until January 1, 1898, when he resigned or was removed as such guardian.
When he was appointed guardian, the oldest of the Dahlmier children was 10 years of age. They resided in the family during all of the time of said guardianship, except that in December, 1893, when the oldest boy was 16 years of age, he left the family home, and
In our opinion, the evidence does not sustain the finding above quoted. The evidence is that appellant, his child, his five stepchildren, and his wife all lived together as one family; that he cultivated the Dahlmier 160 acres and said other 80 acres; apparently treated all of the crops raised on all of this land as his own; never kept any account of the amount produced or the amount of the profit realized from any particular part of the land; and supported and maintained the family out of the produce of all of the land, regardless of whether it came from one part of the land or another. While the evidence on these points is very meager, it is uncontradicted, and, in our opinion, will not support the finding made. As his son and his stepsons grew old enough to do so, they assisted him in the cultivation of all the different parts of the farm. The evidence is wholly silent as to what arrangement or agreement he had with his wife under which he cultivated her share of the land, and there was no express agreement between them as to whose means should be used to support her five children.
On this evidence, it must be held that appellant was the head of the family. A widow, on her marriage to a second husband, is not
Again, conceding that the evidence would warrant a finding that appellant was in loco parentis to these five wards, that he received them into his family under circumstances such as to raise a presumption that he intended to support them gratuitously (see In re Besondy, supra), still there is no finding to that effect, and the evidence is certainly not conclusive that he intended to support them gratuitously. As the evidence will not support the finding above quoted, a new trial must be granted. In our opinion, it sufficiently ■ appears by the settled case that it contains all the evidence.
Order reversed, and a new trial granted.