Estate of Smith

The petitioner and contestant were husband and wife and Bernice Louise Smith, the minor, who was eight years of age at the time of the trial, had lived with them since she was about two weeks old. However, she had not been legally adopted. At or about the same time that a complaint for divorce was filed, Mrs. Emme filed her petition to be appointed guardian of the estate and person of the minor, to which the husband responded by asking that he be appointed and alleging that his wife was not a fit and proper person to be entrusted by the court with the responsibilities involved. By stipulation of the parties the cause was heard at the same time as the divorce action. This is an appeal from a judgment in favor of the husband.

The appellant sets up two reasons for a reversal of the judgment. She says first that the evidence is overwhelmingly against the finding that she is not a fit and proper person to have the custody of the child, and second, that the evidence does not support the finding that it is for the best interest of the child to place her in the custody of the respondent. It is patent that the entire argument is that the testimony is insufficient to support the decision.…