On Petition for a Rehearing.
McBride, J.Appellants ask a rehearing in this cause on the ground that the court failed to consider one of the errors assigned.
In the original opinion it is said that the second error assigned was not discussed, and was, therefore, waived. A reexamination of the brief shows that this error was discussed, although the manner in which the brief was arranged caused it to be overlooked.
This alleged error was in overruling appellants’ motion for a new trial. Several reasons were assigned for a new trial, but only two of these are discussed.
*456On the trial of the cause the guardian called as a witness one Theo. P. Davis, who testified that he assisted in making a settlement between the guardian and the mother of the wards, in February, 1884, at the time when the guardian was ordered by the court to pay to the mother the balance remaining in his hands. He also testifies that he had previously prepared the petition and had procured the order of court directing the guardian to pay said balance to the mother, and that thereupon the guardian and the- mother-met in his office for the purpose of determining the amount, of said balance, and that he made the necessary computations for them in such settlement.
At the proper time appellants objected to this testimony.. Their objection, as set out in the record, is “ that there is no-settlement pleaded, and no issue tendered to support such testimony, and because it is irrelevant, incompetent and immaterial.”
The objection being overruled, the question was properly saved by exception.
The objection, without considering the question 'of its sufficiency otherwise, was not well taken. The complaint charged the conversion by the guardian of a portion of the trust fund, and the unauthorized disbursement by him of a portion of such fund.
The guardian’s defence was, that while he had disbursed all of the moneys which came to his hands as such guardian, such disbursement was authorized, having been made to the mother of his wards in obedience to the order of the court which appointed him. This he could show under the general denial. This testimony tended to establish the fact of the payment of the money to the mother as the court had directed and was clearly competent.
It is possible that the several orders to the guardian to pay his wards’ money to the mother ought not to have been made. As we said, however, in the original opinion, that *457question can not be here considered for the reason that these orders can not be attacked collaterally.
Filed March 18, 1891.The only remaining question argued is that the finding of the court is not sustained by, but is contrary to, the evidence.
Appellants urge, in support of this contention, that there is no evidence whatever tending to. show that the payments were justifiable — that there was any necessity for paying such amount of money to the mother for the maintenance of the wards, or that the estate was managed for the best interests of the wards.
It is enough to say that the evidence does tend to show that the money was all disbursed in obedience to the orders referred to, and while these orders stand we can go no further with our inquiry.
There being evidence to sustain the finding of the court it will not be disturbed.
Petition for rehearing overruled, with costs.