State v. Branch

• Decision Date: 13 December 1892
• Parties: STATE ex rel. HOSPES v. BRANCH et al.
• Court: Missouri Supreme Court

20 S.W. 693

112 Mo. 661

STATE ex rel. HOSPES v. BRANCH et al.

Supreme Court of Missouri, Division No. 2.

December 13, 1892.

GUARDIAN — SETTLEMENT — LIABILITY AS TRUSTEE.

Rev. St. 1889, § 5330, provides that on final settlement by a guardian the court shall order him to pay the amount found due to his ward, having attained majority, or to the successor of such guardian, as the case may be. Section 5332 provides that successors of guardians, having received all the money or other estate found due their wards, shall acknowledge satisfaction of record in the proper court, and that the court shall thereupon enter a discharge of the former guardian, and give him a certificate therefor. Held that, in an action on a guardian's bond to recover the balance found due on his final settlement, a receipt taken by the guardian from himself as trustee, and entered on the record of the probate court, together with an order of the court discharging him, does not estop the ward from showing that such receipt was false and fraudulent, and that he had while guardian converted the trust fund to his own use prior to the final settlement.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by the state at the relation of Richard Hospes, trustee of Alice Crookes, against Joseph W. Branch and his bondsmen on a bond to the state, given by Joseph W. Branch and his bondsmen for the faithful performance by Joseph W. Branch of his duties as curator of Alice Crookes, to recover a balance found to be due on a final settlement to Alice Crookes from Joseph W. Branch, her curator. From a judgment for defendant bondsmen, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by GANTT, P. J.:

Joseph Crookes, who died in St. Louis in 1874, left a will whereby he bequeathed a portion of his estate to his daughter Alice, a minor, and appointed Joseph W. Branch (defendant herein) her curator. Branch qualified in the probate court of the city of St. Louis as the curator of Alice Crookes on April 12, 1875, giving a bond conditioned according to law in the sum of $32,000, with B. W. Alexander and R. M. Parks as sureties thereon. The will further directed that when Alice attained her majority such portion of the estate as was bequeathed to her should be placed and vested in trustees for her sole and separate use. Branch, as curator, received the interest or share of Alice in her father's estate under the will, and made annual settlements, indicating his receipts and disbursements. Alice attained her majority on February 25, 1883, and at the June term, 1884, of the St. Louis probate court, Branch, having given formal notice to her, filed and presented his final settlement as her curator. Said settlement showed on its face a balance to be paid by him as her curator amounting to $20,511.95. The probate court, as shown by its records, formally approved said settlement on July 19, 1884, and, after deducting certain costs and expenses, ordered the curator to pay over the remaining balance, $19,832.15, to Alice Crookes' trustee. Such trustee, however, had not at that date been appointed, and the matter rested in statu quo.

On June 1, 1885, a petition in such behalf having been presented to the circuit court of the city of St. Louis, said Branch was appointed trustee of Alice Crookes, in pursuance of the provisions of her father's will, and then and there qualified as such. On the 16th day of June, 1885, Branch appeared before the probate court, and, filing a receipt (dated June 1, 1885) from himself as curator of Alice Crookes to himself as her trustee for the balance found to be due from him on his final settlement as curator, to wit, $19,832.15, he, in open court, as her trustee, acknowledged payment of said balance to him as trustee. The receipt is as follows: "St. Louis, Mo., June 1, 1885. Received this day of Joseph W. Branch, curator of the estate of Alice Crookes, the sum of nineteen thousand eight hundred and thirty-two 15-100 dollars, ($19,832.15,) in full payment of the balance found to be due from him at the final settlement of her estate in the probate court of St. Louis city, July 18, 1884. Evidence of my appointment as trustee by the circuit court of St. Louis city is hereby submitted. JOSEPH W. BRANCH, Trustee." Indorsed: "Filed June 16, 1885. W. E. WAGNER, Clerk." Thereupon the following entry was made upon the probate record: "Tuesday, June 16, 1885. Curatorship of Alice Crookes. Satisfaction acknowledged, and curator discharged. Now comes Alice Crookes, late a minor, by Joseph W. Branch, her trustee, and acknowledges in open court full and entire payment and satisfaction of the balance ordered to be paid and delivered to her upon the final settlement of said Joseph W. Branch, curator of her estate, heretofore made herein. It is thereupon ordered by the court that said Joseph W. Branch be, and he is hereby, finally discharged as such curator. Receipt filed." On the 12th of March, 1889, this action was instituted in the name of the state to the use of Richard Hospes, trustee of Alice Crookes, and at the relation and to the use of Alice Crookes against Joseph W. Branch as principal, and E. C. Tittman, administrator of B. W. Alexander, deceased, and Elizabeth Parks, administratrix of Robert M. Parks, deceased, both of said sureties being dead at the time. The petition is in usual form, counting upon the conditions of the bond, and alleging as a breach the misappropriation of all the balance found due on the final settlement. Branch made default, and the other defendants (the sureties) pleaded the appointment of Branch as trustee by the circuit court, in pursuance of the will, his receipt as trustee for the estate he held as guardian, and his discharge as above set forth. Plaintiff filed replies denying all the new matter and requiring strict proof.

On the trial, plaintiff made proof of demand by Hospes, the succeeding trustee, for the balance shown to be due as curator by the final settlement, a refusal to pay, and rested. Thereupon defendants put in evidence the final settlement and receipt in full by Branch, and all the proceedings appointing him trustee, and his qualification as such and discharge, and rested. Plaintiff then recalled Joseph W. Branch, and made the following offer in rebuttal "Question. Mr. Branch, when this receipt was given, on the 1st of June, 1885, by yourself as trustee to yourself as curator, had you any money in your hands belonging to the estate of Alice Crookes that came into your hands as curator?" Counsel for defendants objected to the question on the ground that the evidence is incompetent and immaterial, and that the entry of satisfaction and discharge in the probate court, given in evidence by defendants, is conclusive, and cannot be collaterally attacked, which objection is sustained by the court, to which ruling of the court in sustaining said objection plaintiff, by its attorney, then and there excepted at the time. Plaintiff, by counsel, then offered to prove by the testimony of witness Branch that at the time when the entry of satisfaction was made in the probate court, on June 16, 1885, the witness did not have in his hands or under his control any assets belonging to the estate of Alice Crookes, to which testimony so offered defendants objected on the ground that the same was incompetent and immaterial, and that the entry of satisfaction and discharge is conclusive, and cannot be collaterally attacked, which objection the court sustained, and to which action and ruling of the court in so excluding said evidence plaintiff, by counsel, then and there excepted at the time. This was all the evidence offered. Thereupon at the request of defendants Tittman and Parks, the court gave an instruction that under the evidence the jury would return a verdict for the defendants Tittman and Mrs. Parks, and thereupon plaintiff took a nonsuit, with leave to move to set same aside, and afterwards filed said motion, and, the court having overruled the same, appealed to this court.

Valle Reyburn and Jos. S. Laurie, for appellant. Edw. C. Kehr and R. S. MacDonald, for Tittman, administrator.

GANTT, P. J., (after stating the facts.)

In Tittman v. Green, 18 S. W. Rep. 885, we...