Tittman v. Green
| Decision Date | 22 December 1891 |
| Citation | 18 S.W. 885,108 Mo. 22 |
| Parties | Tittman, Public Administrator, v. Green, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Lee & Ellis and Jos. S. Laurie for appellant.
(1) Branch, at the expiration of his term of office as curator was in default, and his official bond in that capacity was answerable accordingly. When he assumed the duties of the succeeding office of trustee and gave a new bond prospective in terms, the sureties thereon did not become liable for any defaults of the prior term of office. Farrar v. United States, 5 Pet. 373; United States v. Boyd, 15 Pet. 187; United States v. Eckford, 4 How. 250; Vivian v. Otis, 24 Wis. 518; School District v McDonald, 39 Iowa 564; Bissell v. Sexton, 66 N.Y. 58; Rochester v. Randall, 105 Mass. 295; Black v. Oblander, 135 Penn. St. 526; State v. Finn, 98 Mo. 532. For the purposes of this suit we have the right to say that the sole condition of said bond is that said Branch shall account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee. State ex rel. Koch v. Roeper, 9 Mo.App. 21; S. C., 82 Mo. 57. (2) The doctrine known as "transmutation by operation of law" is not applicable to this case. First, there was no final settlement in the probate court of the curatorship. "An executor, who is also trustee under a will, cannot be considered as holding any part of the assets in the latter capacity until he has settled an account in the probate court as executor, on which he is credited as executor with the amount which he holds as trustee." Hall v. Cushing, 9 Pick. 395, 409; Conkey v. Dickinson, 13 Metc. 51; Crocker v. Dillon, 133 Mass. 9; Perry on Trusts, sec. 263; 2 Williams on Executors, p. 1506, note m. "Until he has settled his account as executor in the probate court his sureties on his guardianship bond are not liable thereon for his neglect to pay such portion." Fish's Appeal, 4 Cent. Rep. (Penn.) 727. Second, the trust funds belonging to the estate were not in the possession of the curator when he qualified as trustee; consequently, there was no subject-matter for the rule to act upon. Ruffin v. Harrison, 81 N.C. 208; Taylor v. Deblois, 4 Mason, 131; Crocker v. Dillon, 133 Mass. 91; Seegar v. State, 6 H. & J. 162; Wilson v. Wilson, 17 Ohio St. 150; Baker v. Wood, 42 Ala. 644; Weaver v. Thornton, 63 Ga. 655; State v. Hearst, 12 Mo. 366; Walker v. Walker, 25 Mo. 367. (3) The court erred in admitting as evidence the order of the circuit court appointing Branch trustee, and the instrument purporting to be a receipt from Branch, as curator, to himself as trustee. State ex rel. v. Roeper, 9 Mo.App. 21; S. C., 82 Mo.; United States v. Boyd, 50 How. 29; United States v. Eckford, 1 How. 250; Greenl. on Ev., sec. 187; 10 Am. State Rep. 847.
Rassieur & Schnurmacher for respondent.
(1) Where a person having acted in one trust capacity succeeds himself in another trust capacity, so that he unites in himself the relation of creditor and debtor, inasmuch as he cannot maintain an action against himself and recover judgment and satisfaction, the law will assume and consider that he has actually received in his new office the amount owing by him in his old. State to use v. Hearst, 12 Mo. 365; Walker's Adm'r v. Walker, 25 Mo. 365; Taylor v. Deblois, 4 Mason, 131; Gilmer v. Baker, 24 W.Va. 72; State to use Gable v. Cheston, 51 Md. 352; Watkins v. State, 2 Gill & Johns. 220; Seegar v. State, 6 Harris & Johns. 162; Gottesberger v. Taylor, 19 N.Y. 150; United States v. May, 4 Mackey, 4. (2) And the foregoing rule will be applied although no formal discharge has been obtained from the first trust office; it is sufficient that the fiduciary debtor is entitled to the trust fund in his new capacity, and has indicated by some affirmative act that he has entered upon the new office. State to use, etc., v. Cheston, 51 Md. 352; Watkins v. State, 2 Gill & Johns. 220. (3) A devastavit on the part of the trustee, while acting in the first capacity, will not prevent the application and operation of the rule; it is enough that he be solvent or able to pay when the second capacity is accepted by or fastens itself upon him. Gilmer v. Baker, 24 W.Va. 72, 92; State v. Cheston, 51 Md. 352. (4) The distinction between the cases cited by appellant and the foregoing cases is this: Where one succeeds himself in the same office for several successive terms, and gives new bonds for each term, or where an incumbent in office gives several bonds during the same term, and in either case is guilty of defalcation, he does not thereby become his own creditor. In case he has violated his trust by conversion of the assets, or otherwise, during any particular term, or at any particular time, the right to sue does not vest in him; the party aggrieved may bring action and recover from the sureties upon the bond in force when the breach occurred. But where the principal has succeeded himself in another capacity, so that he has become his own creditor, the rule contended for applies. (5) The court did not err in receiving the order of Branch's appointment and Branch's receipt in evidence. First. The bond refers to the appointment and was given in the same judicial proceedings which led to the appointment; the sureties were chargeable with notice thereof. Bigelow on Estop. 373. Second. The receipt was competent: (a) As an admission of Branch not conclusive, but prima facie. (b) As an "act" of Branch tending to show that he had assumed the new office. Brandt on Suretyship, sec. 518, et seq.; State v. Dailey, 52 Mo. 601; State to use, etc., v. Roeper, 82 Mo. 57. Third. But even if the evidence was incompetent, it would not furnish ground for reversal; the same facts were developed by appellant through the testimony of his witness Branch, and the case was tried before the court without a jury. Father Mathew Society v. Fitzwilliams, 84 Mo. 406; S. C., 12 Mo.App. 445.
This is an action on a bond executed by Joseph W. Branch as principal, and the appellants, James Green and Robert B. Brown, as sureties. The plaintiff sues on this bond as the legal representative of Mrs. Florence E. Garrison, deceased. A trial was had in the circuit court of the city of St. Louis, and on June 22, 1889, judgment was rendered against James Green, the appellant, surety on said bond, for $ 21,200.36. A motion for new trial was overruled, and appeal taken to this court.
The petition alleges that Florence Eliza Garrison, nee Crookes, died on December 14, 1885, and that plaintiff, as public administrator, took charge of her estate, in pursuance of an order of the probate court of the city of St. Louis, made July 9, 1888; that on November 13, 1883, Joseph W. Branch was duly appointed trustee of the estate of said Florence, by the circuit court of the city of St. Louis, and that said Branch, as such trustee, on the same day, in obedience to the order of said court, executed a bond to said Florence, in the sum of $ 42,000, with James Green and Robert D. Brown as sureties, conditioned that said Branch "should well and truly perform his duties as such trustee, and should account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee;" and for breach of said bond assigns that said Branch, as such trustee, on December 28, 1883, received into his hands, custody, care and charge the sum of $ 20,767.11 of the trust fund of which said Florence (now deceased) was and is the beneficiary, and that upon her death as aforesaid, and when plaintiff took charge of the estate of said Florence, said Branch was lawfully required to account for said sum, and pay the same together with interest, to plaintiff; but that he failed and refused so to do. Judgment is prayed in accordance with the premises.
The answer of defendant, James Green, who is one of the sureties on said bond, and the appellant herein, is a general denial, and further avers that prior to the commencement of said suit said Branch, as such trustee, had accounted for and paid over to said Florence E. Garrison and her estate all sums of money due from him by reason of his relation to her as trustee. A general reply was filed to said answer. Branch, as principal, and Robert B. Brown, as cosurety, with appellant, were also named as defendants in the petition, but the cause was dismissed by plaintiff as to said parties, preceding the trial.
Upon the trial, the plaintiff, in order to sustain the issues on his part, proved his title to the office of public administrator of St. Louis and qualification as such; the death of Florence E. Garrison; the order of the probate court directing him to take charge of the estate of Mrs. Florence E. Garrison, deceased, upon the application of one of her heirs. He also proved that Mrs. Garrison was Florence E. Crookes, the daughter of Joseph W. Crookes, deceased.
He then read in evidence the following order of the circuit court of the city of St. Louis:
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