Mumford v. Rood , 39 S.D. 276 ( 1917 )

GATES, P. J.

This matter arises upon the final account of Frank M. Rood, guardian, wherein he sought to turn over to his wards certain certificates of deposit in the Meade County Bank, an insolvent corporation. Upon a former appeal this court reversed the action of the trial court in approving the guardian’s account. Mumford v. Rood, 36 S. D. 80, 153 N. W. 921. In'the opinion therein this court said, concerning diligence to conserve the interest of the wards:

“Upon the trial in the circuit court, respondent made no attempt to show such diligence, and failed to- show any extra-, ordinary conditions justifying his loans to the hank. It is quite possible that, upon a further trial, he may he able to- affirmatively establish that the conditions were-so extraordinary as to justify him in the course pursued. This court is not inclined to hold, as some courts do, that loans to banks are always at the trustee’s risk; but we do hold that it is incumbent upon a guardian to justify such loans.”

Upon a new trial the trial court found that the guardian had ■been diligent in caring for the interests- of -his wards, and that the conditions in and around Meade county were so extraordinary as to justify the loans to the bank, and again allowed the guardian’s account. From the judgment entered thereon, and from an order denying a new trial, the wardte appeal.

Taking the above-quoted portion of the former opinion as a text, the appellants seek to show that the evidence is insufficient to justify the findings, while the respondent by the same text endeavors to show that the findings were warranted by the evidence. Additional testimony was offered beyond that appeáring at the former trial and referred to in the former opinion. We do not deem it necessary to recapitulate such evidence, but do conclude that, while the evidence is conflicting to some extent, we are unable to findl that the clear preponderance of it supports the position of the wards. The other assignments of error argued by appellant’s counsel have been considered, but are deemed to be without merit.

The judgment and order appealed from are affirmed.