State ex rel. Bovard v. Weill

• Decision Date: 05 September 1944
• Docket Number: 38843
• Parties: State of Missouri ex rel. Spencer D. Bovard and Joseph F. Beurskens, Co-Administrators with Will Annexed of the Estate of John H. Bovard, Deceased, Appellants, v. Marcel Weill and Fidelity and Deposit Company of Maryland, a Corporation
• Court: Missouri Supreme Court

182 S.W.2d 521

353 Mo. 337

State of Missouri ex rel. Spencer D. Bovard and Joseph F. Beurskens, Co-Administrators with Will Annexed of the Estate of John H. Bovard, Deceased, Appellants, v. Marcel Weill and Fidelity and Deposit Company of Maryland, a Corporation

No. 38843

Supreme Court of Missouri

September 5, 1944

Rehearing Denied or Motion to Transfer to Banc Overruled October 9, 1944.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

Ernest D. Martin and Jay L. Oldham for appellant.

(1) There is no issue of fact between the parties, as the pleadings show that appellant is entitled to judgment as a matter of law. Hunter v. Delta Realty Co., 350 Mo 1123, 169 S.W.2d 936; State ex rel. Lemp v. Wurdeman, 311 Mo. 64, 277 S.W. 571. (2) Under the executor's oath of office and bond, it was his duty to pay all debts on orders of the probate court. Secs. 17, 19, R.S. 1939. (3) After a claim is duly allowed in the probate court and the executor allows his appeal time to expire and does not take action for improper allowances, it ripens into a final judgment. Wilson v. Wilson, 164 S.W. 561; Roloson v. Riggs, 274 Mo. 522, 203 S.W. 937; Linville v. Ripley, 347 Mo. 95, 146 S.W.2d 581. (4) The probate court does not have jurisdiction to entertain an equitable application for authority to release a final judgment by the guardian and curatrix for her insane ward. Sec. 34, Art. VI, Const. of Mo.; State ex rel. Baker v. Bird, 162 S.W. 119, 253 Mo. 569; In re Estate of Connor, 254 Mo. 65; Primeau v. Primeau, 297 S.W. 387, 317 Mo. 828. (5) The probate court does not have jurisdiction to enter a judgment of final settlement until the estate is fully administered and all debts paid. State ex rel. Knisely v. Holtcamp, 266 Mo. 347, 187 S.W. 1007; State ex rel. Lefholtz v. McCracken, 95 S.W.2d 1239. (6) The title to property is in the insane ward and not in his curatrix. The estate of the insane ward can only be bound by the provision of some section contained in Art. 18, Chap. 1, R.S. 1939, governing the administration by guardians and curators of insane persons. Greever v. Barker, 289 S.W. 586, 316 Mo. 308; Porterfield v. Farmers Exchange Bank of Gallatin, 37 S.W.2d 936; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 75; In re Cordes' Estate, 116 S.W.2d 207; Continental Cas. Co. v. Pleitsch, 111 S.W.2d 956; State ex rel. Gnekow v. U.S. Fid. & Guar. Co., 163 S.W.2d 86; Frost v. Timm, 176 S.W.2d 833. (7) The court will review case upon same theory on which it was tried in trial court. Hutchinson v. Thompson, 175 S.W.2d 903. (8) Where a fraudulent judgment has been rendered prior to filing of the plaintiff's suit, he can by a separate count in equity ask for the cancellation of said fraudulent judgment. Drake v. Kansas City Pub. Serv. Co., 63 S.W.2d 75.

Clyde Taylor for respondent Marcel Weill.

(1) The probate court had jurisdiction of the Bovard estate and of Minnie Jones, the curatrix thereof, and power and authority to direct and empower the curatrix to become a party to the contract in question and to bind the Bovard estate thereby. Having such jurisdiction in the premises, the proceedings culminating in the order of that court in question were valid and are not subject to collateral attack as here attempted. Since said order was valid the plaintiff cannot recover, and judgment was properly rendered for the defendants. Secs. 34, 35, Art. VI, Const. of Mo.; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W.2d 1028; Linn County Bank v. Clifton, 263 Mo. 200, 172 S.W. 388. (2) A probate court has not only that jurisdiction which is expressly conferred by constitutional or statutory enactment, but it also has inherent jurisdiction by virtue of the very fact that it is a probate court and independent of any express provisions concerning the jurisdiction of the court. 15 C.J. 732; 14 Am. Jur. 370; State ex inf. Crow v. Shepherd, 177 Mo. 205, 76 S.W. 79; Gumbel v. Pitkin, 124 U.S. 131, 8 S.Ct. 379; U.S. Fidelity Co. v. Poetker, 180 Ind. 255, 102 N.E. 372; State ex rel. Syverson v. Foster, 88 Wash. 58, 146 P. 169; McClure v. McClintock, 150 Ky. 265, 150 S.W. 322; Ex parte Sturm, 162 Md. 114, 136 A. 312; Dukes v. State, 11 Ind. 557; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55; Redmond v. Quincy, etc., R. Co., 255 Mo. 721, 126 S.W. 159; Laws 1903, p. 200; Ex parte Zorn, 145 S.W. 62; Chicago, etc., R. Co. v. Gildersleeve, 219 Mo. 170, 118 S.W. 86; Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035. (3) The statutes of Missouri pertaining to probate courts and their jurisdiction and authority, including with respect to estates of insane persons, do grant unto such courts jurisdiction to do precisely what was done in this case. 2 U.S. Stat. 285; 1 Mo. R.S.A. 1. (4) A curatrix has the general powers of a trustee, except where expressly or by necessary indication limited by statute. Michael v. Locke, 80 Mo. 584; Skelly v. Maccabees, 217 Mo.App. 333, 272 S.W. 1089; Secs. 461, 470, Chap. 1, Art. XVIII, Laws Missouri. (5) It is universally held that, absent some express statute to the contrary, the curator of the estate of an insane person has power, with the approval of the probate court, to settle and compromise and release and discharge debts liquidated and otherwise owed to the ward. 28 C.J. 1123; 25 Am. Jur., pp. 49, 68; Maclay v. Equitable Life Ins. Society, 152 U.S. 499, 14 S.Ct. 678; Spicer v. Smith, 288 U.S. 430, 53 S.Ct. 415; Hayes v. Insurance Co., 125 Ill. 126, 18 N.E. 322, 1 L.R.A. 303; Head v. New York Life Ins. Co., 227 S.W. 429.

Winger, Reeder & Barker for respondent Fidelity and Deposit Company.

(1) The statutes of limitation have run against both causes of action alleged in both counts of plaintiffs' amended petition. Sec. 1022, R.S. 1939; Rosenberger v. Mallerson, 92 Mo.App. 27; Smith v. Settle, 128 Mo.App. 379, 107 S.W. 430; Clubine v. Frazer, 346 Mo. 1, 139 S.W.2d 529. (2) The amended petition does not state facts sufficient to constitute a cause of action, and no such cause of action was established by the proof. Limbaugh, Missouri Practice, sec. 634; Jacobs v. Jacobs, 99 Mo. 427, 12 S.W. 457; Merritt v. Merritt, 62 Mo. 150; Jeffries v. Mut. Life Ins. Co., 110 U.S. 305, 28 L.Ed. 156, 4 S.Ct. 8; Scott v. Crider, 217 Mo.App. 1, 272 S.W. 1010; Sec. 230, R.S. 1939; Sheetz v. Kirtly, 62 Mo. 417; State ex rel. Ellsworth v. Fidelity & Deposit Co. of Md., 235 Mo.App. 850, 147 S.W.2d 131. (3) The probate court did not exceed its jurisdiction in entering the order of October 25, 1934, directing the guardian and curatrix of John H. Bovard, insane, to enter into the agreement for the reorganization of the affairs of the estate of Charles Weill, deceased; and the guardian had full power and authority to consent to the closing of said estate in probate and to release the claim of the estate of the insane person. Secs. 461, 470, 474, 483, R.S. 1939; Michael v. Locke, 80 Mo. 548; State ex rel. Lancaster v. Jones, 89 Mo. 470; Restatement of Law of Trusts; sec. 192; 25 Am. Jur., Guardian and Ward, p. 68; Collings v. Trotter, 81 Mo. 275; LeBourgeoise v. McNamara, 82 Mo. 189; Burger v. Boardman, 254 Mo. 238; Head v. New York Life Ins. Co., 227 S.W. 429; Clare v. Mut. Life Ins. Co., 201 N.Y. 492, 94 N.E. 1075, 35 L.R.A. (N.S.) 1123; Union Central Life Ins. Co. v. Boggs, 188 Ark. 604, 66 S.W.2d 1077; Kraemer v. Wendel, 204 Iowa 20, 214 N.W. 712; Salomon v. Newby, 210 Iowa 1023, 228 N.W. 661; Nashville Lbr. Co. v. Barefield, 93 Ark. 353, 124 S.W. 758; Poole v. Bradham, 143 S.C. 156, 141 S.E. 267; Carter Oil Co. v. Flemming, 117 Okla. 39, 245 P. 833; Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318; Bushong v. Taylor, 82 Mo. 660; Hickox v. McKinley, 236 S.W. 1068; St. Louis v. Senter Comm. Co., 124 S.W.2d 1180. (4) Plaintiffs ratified and confirmed the act of the guardian of John H. Bovard, an insane person, and of the executor of the estate of Charles Weill, deceased, and are estopped to deny the validity of those acts and of any and all orders of the probate court in regard to the note and deed of trust involved in this case. Sec. 77B, Bankruptcy Act; Brancato v. Ben Hur Life Assn., 233 Mo.App. 1193, 128 S.W.2d 1108; 19 Am. Jur., pp. 650, 704; Green v. St. Louis, 106 Mo. 455; Fox v. Winden, 127 Mo. 502, 30 S.W. 323. (5) There was no loss to the estate of John H. Bovard by reason of the acts complained of herein. 28 C.J., 1297; State ex rel. v. Weaver, 92 Mo. 673, 4 S.W. 697; State ex rel. v. Tittman, 134 Mo. 162, 35 S.W. 579; Secs. 3242-3244, 3267-3272, R.S. 1939; Guardianship of Sorrells, 117 P.2d 96.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Spencer D. Bovard and Joseph F. Beurskens co-administrators with will annexed of the estate of John H. Bovard, deceased, seek by this proceeding to recover $ 10,898.73 as damages for an alleged breach of an executor's bond for failure to pay a final judgment allowed by the probate court of Jackson county, Missouri. In a second count of the petition they ask that a judgment for final settlement, entered by the probate court of Jackson county, be set aside. Upon a trial in the circuit court a judgment was entered for the defendants and plaintiffs appealed.

The defendants are Marcel Weill, executor of the estate of Charles Weill, deceased, and Fidelity and Deposit Company of Maryland, a corporation, surety on the executor's bond. To properly understand the issues involved it will be necessary to state the facts rather in detail.

Charles Weill died on October 28, 1933, leaving a large estate which was heavily encumbered. Marcel Weill, his son, was named executor and qualified as such. One of the claims against the estate was a note held by John H. Bovard on which there was due $ 9,767 and interest. This note was secured by a deed of trust on a parcel of real estate owned by Charles...