In Re Estate of Dellow

HALL, J.

There are two appeals in this case,—one by Flora Bellow from a judgment of the trial court denying her petition to be appointed guardian of the persons and estates of Eleanor Louisa Bellow and Vincent Alexander Bellow, minors, and granting the petition of Rose A. Shields to be appointed guardian of the same children, and another from an order denying appellant’s motion for a new trial,-—both before us on one record.

The appeal from the judgment was taken more than sixty days after the rendition of judgment, and therefore the suffi

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ciency of the evidence to sustain it cannot be considered on the appeal from the judgment. This is conceded to be true by counsel for appellant in his brief, and it is not contended that the findings do not support the judgment; so the judgment must be affirmed.

As to the appeal from the order denying the motion for a new trial, it is urged by the respondent that the record does not show what motion was in fact made, nor upon what grounds the motion was predicated; that though a notice of intention to move for a new trial was filed, and a bill of exceptions settled containing such notice and specifications as to insufficiency of the evidence to support certain findings, the only record as to what motion was in fact made is contained in the clerk’s entry in these words

“(Title of Court and Cause.) October 7, 1904. Motion for new trial ordered denied.

“W. J. Kennedy, D. C. C.”

However, as we think-the action of the lower court must be sustained on the merits, we do not think it necessary to pass on the technical point thus raised.

At the time of the application for guardianship the boy Vincent was aged three years, and the girl Eleanor was aged eight years. The mother of the children died when the boy was four months old, and the father died October 7, 1903, five days before the filing of the petition by appellant. The estate of the children consists of an insurance on the life of their father in the sum of three thousand dollars, payable in equal shares to the children. Appellant, Flora Bellow, is an aunt of the children and their only relative in this state, while respondent is in no way related to the children, but had had the care and custody of the girl for some time before the death of the father, and immediately upon his death took the custody of the boy from another stranger, and had the custody of both at the time of filing the petition.