The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded with direction to overrule the exceptions as to the items totalling $213.74; the item of $3 paid to the Loretto Academy; allow proper amount for services as guardian and curator from date of appointment to February 1, 1932; sustain the exceptions as to all other items herein mentioned; each item charged against appellant to bear interest at the highest legal rate from the time it was charged to the estate of the ward; and overrule appellant's motion for attorneys' fees for preparing or defending his final settlement.
ON MOTION FOR REHEARING. In motion for rehearing appellant, among other contentions says that, the item of $35.40 credited to him in his settlement of June, 1934, as having been paid W.J. Ernst, was not included in the amended exceptions filed in the probate court.
The record shows that counsel for exceptors in his opening statement said in substance that the evidence would show that Ernst did not receive any part of the item; that in reply appellant's counsel stated in effect that the item was "mistakenly described" in the settlement. "That will all be detailed." Thereafter exceptors' counsel *Page 1132 suggested that he desired to amend the exceptions so as to include the item. Thereupon there was colloquey between court and counsel in which appellant's counsel indicated he was of the opinion amendment of the exceptions should not be allowed. Thereafter evidence concerning the item was introduced by both parties, as shown in the main opinion. Thus the conduct of the parties indicates they thought the item was in issue.
The assignment of error says the court erred in finding against appellant on the item "because,
"(1) The evidence adduced by respondents was insufficient to establish a cause of action in favor of respondents and against appellant;
"(2) The overwhelming weight of the competent evidence was in favor of appellant and against respondents."
Plainly the assignment challenges the sufficiency of the evidence to support the finding, not the failure of the exceptions to present the question and, for that reason, the question was not discussed in the main opinion.
Other questions urged in the motion are fully covered in the main opinion.
The motion for rehearing is overruled. Sperry, C., concurs.