The plaintiff, in a petition for rehearing, asserts that this court overlooked evidence which he claims shows that the property coming to the defendant Walker from her mother's estate was paid to her by checks which were endorsed by her, cashed by her in a California bank, and drawn out by her in various amounts over a period of time; and that hence "The record proves conclusively that Mrs. Walker got this money and spent it."
We have not overlooked this testimony for it is contained in the depositions of the defendants; but the record does not sustain this statement.
The record shows positive statements on the part of the defendant Walker that she turned over to her father all of the property received from her mother's estate; and the written agreement entered into by the defendant and her father, at a time when there was no apparent reason for falsifying a record or making misstatements, shows that he *Page 429 received the money and still owed it to her. It is true that on this hearing an attempt is made by the plaintiff to show that the defendant deposited this money, drew it out of the bank and spent it herself; but this is not substantiated. In this deposition the defendant restates positively that the money coming to her from her mother's estate was given to her father. The record shows a receipt from her to the administrator. That the check from the administrator would be drawn in her favor is apparent, but this does not militate against her statement that she gave the property to her father.
The defendant, at the time the deposition was taken, showed that she had not had a bank account for a couple of years, that the stubs of checks and the bank vouchers had been retained by her for some time and after she had satisfied herself of the correctness of the returns from the bank they were destroyed or thrown away.
Records obtained from a bank or banks showed bank accounts in the name of the defendant Walker. Regular deposits were made from time to time. But the record also shows that during all these years the defendant was engaged in business, was transacting business, and in these transactions she drew checks on the banks where she had accounts. The record also shows that she received stated alimony by check from her husband under the order of the court, and these checks were deposited. She also received five thousand dollars ($5,000.00) as the proceeds of oil wells in the property settlement with her husband. Because checks were drawn on the banks payable from her own private funds does not prove, in the light of these other facts, that her statement and the statement of her father that the money from her mother's estate was turned over to the father and received by him were untrue. The petition for rehearing is denied.
BURKE, Ch. J., and NUESSLE, MORRIS and CHRISTIANSON, JJ., concur. *Page 430