State ex rel. Smith v. Martin , 1885 Mo. App. LEXIS 365 ( 1885 )

Opinion by

Hall, J.

1. The defendants complain of the judgment of the circuit court, among othér reasons, because the answer only admitted the appointment and qualification of Tyre M. Roberts as curator of the said wards, as alleged in the amended petition, and denied all the other allegations of the petition, including the allegations as to the appointment of Eli P enter as administrator of the estate of said Tyre M. Roberts, and the judgment of the probate court against Mm as such administrator, and the appointment of John E. Smith as guardian and curator of the said wards after the death of their former curator, Tyre M. Roberts. This is unquestionably the real condition of the pleadings. All those material averments of the petition were denied, and the judgment rendered by the circuit court should not have been rendered without proof of the truth of said averments. For this reason, the judgment of the circuit court will have to be reversed.

2. This error of the circuit court was merely a technical error, as we presume from the record herein ; and supposing that the judgment was rendered by the probate court against Eli Penter, administrator of Tyre M. Roberts, as alleged in the petition, we feel called upon now to determine what the effect of that judgment, as alleged, is upon the rights of the defendants.

It is urged by the defendants that they, as sureties of Tyre M. Roberts, had no day in court during the proceedings in the probate court against Eli Penter as administrator of said Roberts, and that under section 2614 of Revised Statutes, the said court had no power to render any judgment against or binding upon them as such sureties.

Section 2610 of said statutes, concerning guardians and curators, provides for the making of final settlements by such guardians and curators. Section 2611 provides “for the payment of the amount found due, on such settlements, to the wards,” etc.

Section 2612 is as follows: “If the guardian or curator fail to pay the money so ordered to be paid, the same proceedings may be had against him and Ms sureties to compel such payment, as authorized in cases where an executor or administrator fails, when ordered to pay demands against an estate.”

Section 2614 provides that, “In case of the death of a guardian or curator, his administrator or legal representative, shall make settlement with his successor and deliver the property and money belonging to the ward of his decedent to such successor.”

Under the above sections of the statutes, the probate court had power to summon the administrator of Roberts, ascertain the amount due from Roberts as guardian and curator of the said wards, and direct the said administrator to pay the said amount so found due to the then curator of the wards. This settlement, made by the probate court, was a final settlement, and had the binding effect of a judgment, so far as the administrator was concerned. But as to the sureties on the curator’s bond of Roberts, the settlement was not conclusive, and was only prima facie correct. State v. Grace, 26 Mo. 87; Cohen v. Atkins, 73 Mo. 166.

We have considered the decisions made by the supreme court, holding a final settlement made with an administrator or executor conclusive and absolutely binding, not only upon him, but also upon his sureties. But an examination of the leading case, that of The State v. Holt (27 Mo. 343), will show that the opinion of the court, delivered by Napton, J., was based principally, if not wholly, ripon the language of the administrator’s bond, which provided that the administrator “should faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration, required by law, or the order or decree of any court haring jurisdiction.’’'’

The bond upon which this suit is based, is in the statutory form and provides that the curator shall discharge all his- duties according to law. The difference between the provisions of the bonds is very great.

v In the case of The State v. Green (26 Mo. 87), the supreme court, composed of Judges Scott, Napton, and Richardson, hold that such a settlement as the settlement in this case, made by the probate court against a guardian was only prima facie evidence of the liability of the guardian’s sureties on his bond, in an action on the bond against those sureties. And the case of Nolley et al, v. Callaway County Court (11 Mo. 447), is cited as an authority for so holding. This latter case was a case in which suit was brought on the official bond of the county treasurer against him and his sureties, and in that case the settlement made by the treasurer was held to be p rima facie evidence only of the liability oí the sureties. By the supreme court, the two cases were treated as parallel.

But in the case of The State v. Holt, supra, the same court, composed of the same judges, held the sóttlement made by an administrator binding absolutely and conclusively .upon his sureties, because they had contracted to pay for their principal any money which he might be ordered, by any court having jurisdiction, to pay, and should fail to so pay; and their principal had failed to pay a sum which he had been ordered to pay by a court having jurisdiction. Neither the supreme court then, nor in the case of Cohen v. Atkins, supra, thought there was any conflict between the case of The State v. Grace and the case of State v. Holt.

They were decided upon entirely different principles. In this case, we accordingly hold that it was competent for the defendants to show that their principal, Tyre M. Roberts, at his death, was not chargeable, as curator of the said wards, with any sum whatever, or with the amount charged against him in the settlement made by the probate court with his administrator, Eli Penter. The burden of so showing and proving is upon the defendants.

3. Did the court err in sustaining the plaintiff’s demurrer to the defence set up in the answer? The plaintiff on this point argues that, inasmuch as the statutes provide that the probate court may order the proper education, support, and maintenance of wards, according to their means, and for that purpose, from time to time, may make the necessary appropriations, etc., the guardian and curator has no right, without an order by the probate court first made, to use for those purposes the money or property of the wards, under any circumstances whatever. In other words, the plaintiff insists that, for the present or future maintenance, the probate court may make provision and allowance; but that, for the past maintenance of the wards by their guardian and curator, the probate court can make no allowance to such guardian and curator.

Upon this subject, the supreme court, in the case of Guion v. Guion’s Administrator (16 Mo. 52), said: ‘ ‘ Each case is governed by its own circumstances. If the estate of the child will warrant it, and Cm father is poor, an allowance will be made for its support according to its expectations, and this without regard as to whether it is for past or future maintenance.” And again, in the same case, it is said, in speaking of the case of Cummins v. Cummins (8 Watts 366): “We fully adopt the opinion of the court in Pennsylvania, not considering it as precluding a mother from an allowance for past maintenance, under circumstances in which it would be proper to give it.” It is further said, in the same case : “* * * As the evidence of her having received the money was of record, had such been her intention, she would have kept an account with her son, or, at least, have charged him with the sums she expended in his education.” The opinion in that case was delivered by Judge Scott, and its correctness has never been questioned in this state.

Applying the principles of law laid down in that case to the facts of this case, we feel forced to answer the above question in the affirmative, and to hold that the trial court did err in sustaining the demurrer to the defence set up in the answer. If one could suppose a case in which a father, acting as curator for his minor children, would be entitled to allowance for past maintenance of his wards, it would be a case in which the father was utterly insolvent; in which for years in succession he was an invalid and helpless; in which he was wholly unable to support, maintain, or educate his said children and wards out of his own means, or by his own labor ; in which he did support, maintain, and educate his children and wards out of their property and funds coming into his hands as curator, and in which he intended to, and did, charge his said wards respectively for said support, maintenance, and education. This is what is alleged in the answer. If the defendant should prove these allegations to be trae, he would, in our opinion, prove that said Tyre M. Roberts, at his death, was not chargeable at all, as curator, with any sum. The undertaking of the defendants was not that Tyre M. Roberts, the curator of the wards, would, as their father, be able to, and would, support said wards as his children; but it was that said Roberts would, as such curator, discharge all of his duties according to law. If the allegations of the answer be true, with the latter duty “the said Roberts did not fail to comply.

The judgment of the circuit court is reversed, and the cause is remanded.