Citizens' Bank & Trust Co. v. Moore.

• Decision Date: 24 June 1924
• Docket Number: No. 18401.,18401.
• Citation: 215 Mo. App. 21,263 S.W. 530
• Parties: CITIZENS' BANK & TRUST CO. v. MOORE.
• Court: Missouri Court of Appeals

263 S.W. 530

215 Mo. App. 21

CITIZENS' BANK & TRUST CO. v. MOORE.

No. 18401.

St. Louis Court of Appeals. Missouri.

June 24, 1924.

Appeal from Circuit Court, Cape Girardeau, County; Frank Kelly, Judge.

Proceeding by the Citizens' Bank & Trust Company, as guardian and curator in Mississippi of Obie L. Eulgham, a minor, against N. M. Moore, as said minor's guardian and curator in Missouri. Judgment for plaintiff, and defendant appeals. Affirmed.

Sam J. Corbett, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for spondent.

BECKER, J.

This is a proceeding filed originally in the probate court of Pemiscot county, Mo., by the Citizens' Bank & Trust Company, of Marks, Miss., as guardian and curator of Obie L. Fulgham, a minor, in that state, to require N. M. Moore, the Missouri guardian and curator, to turn over to it, the said Mississippi guardian and curator, the funds in the hands of said Moore.

The probate court of Pemiscot county made the order requiring Moore to turn over the funds in his hands to the said Mississippi guardian, from which order Moore appealed to the circuit court of Pemiscot county, and a change of venue was taken from said circuit court to the circuit court of Cape Girardeau county, which last-named court rendered judgment affirming the order of the probate court, and again directed the turning over of said funds by Moore to the said Mississippi guardian, the respondent herein.

The facts in the case are substantially as follows: Obie Fulgham, the minor, is the stepson of the appellant, N. M. Moore. Moore married Obie's mother when the minor was about two years of age, and at the time of the marriage all of the parties lived in the state of Mississippi. About seven years before this suit was tried Moore with his family, in which was the minor, Obie Fulgham, moved to Wardell, in Pemiscot county, Mo., where Mrs. Moore died on the 30th day of September, 1920. Mrs. Moore had two children prior to her marriage to Moore, Mattie Clifton (née Fulgham) and Obie L. Fulgham, and after her marriage to Moore had two children by Moore, named Pauline and Putnam.

Mrs. Moore Ieft $3,000 life insurance, payable to Obie L. Fulgham, Pauline Moore, and Putnam Moore. N. M. Moore, the appellant, was appointed guardian and curator of these three children and collected the life insurance. On the 23d day of December, 1920, N. M. Moore, according to his version of the matter, permitted Obie L. Fulgham to visit his grandmother and other relatives in Quitman county, Miss., with the understanding that he would return to Wardell, Pemiscot county, Mo., on the 10t1). of January, 1921, whilst according to Obie L. Fulgham's testimony he told his stepfatier, Moore, when he started on this trip, that he did not intend to return, but would make his home with his grandmother and his uncle, J. C. White, in Mississippi. Obie did net return and on the 7th day of September, 1921, J. C. White, an uncle of Obie, filed in the chancery court of Quitman county, Miss., his petition for appointment of a guardian and curator for the said Obie L. Fulgham, alleging among other things "That Mrs. Fannie Moore, late of Wardell, Mo., deceased, left surviving her one minor child in this county and state (Quitman county, Miss.), Obie 14 Fulgham, a minor, aged 14 years in September, 1921; that said minor is a resident of this county," and then alleges his right to an estate of about $1,000, and that a legal guardian is necessary for the protection thereof, and then "that the petitioner is the uncle and natural guardian of said minor, and as such has had since the death of the decedent, the custody and tuition of said minor," and prayed the appointment of the Citizens' Bank & Trust Company as guardian for said minor. The appointment was made.

After this appointment was made, this proceeding was brought in probate court of Pemiscot county, Mo., to have N. M. Moore, the resident guardian and curator of said minor, to turn over the funds in his hands to the respondent, the foreign guardian. N. M. Moore was cited to come into court, make his final settlement, and turn over the funds in his hands to the respondent. Moore made his settlement, which showed a balance in his hands due the estate of said minor in the sum of $844.52, but contested the matter of transferring the funds, and filed his plea to the jurisdiction of the court, as is shown by the record, giving as his reasons: First, that the minor, Obie L. Fulgham, is not a resident of the state of Mississippi, where a guardian is alleged to have been appointed for him, but is a resident of Pemiscot county, Mo., and a stepchild of the said N. M. Moore, his resident guardian, and was reared by him, and that said minor has a half-sister and half-brother, own children of the said N. M. Moore; that said N. M. Moore permitted the said minor to visit his relatives in the state of Mississippi, and said minor is merely on a visit to that state, and not a resident thereof, and for that reason the order for the transfer of said funds cannot be legally made; second, that no notice of the intended application for said order has been given him, and the court is without authority of law to make said order, or to issue said citation.

In the circuit court of Cape Girardeau county, the respondent on the hearing offered his certified and authenticated records of the chancery court of Quitman county, Miss., and the records of the probate court of Pemiscot county, Mo., ordering a transfer of the funds, and upon the appellant offering his evidence as to the age and residence of the minor the respondent, while the case was held under advisement, took depositions in Mississippi, in which it undertook to show that the minor was over 14 years of age at the time the Mississippi guardian was appointed, and to show that N. M. Moore was not kind and considerate of the minor, and that a home with his uncle and grandmother in Mississippi would be to the best interest of the said minor.

Obie Fulgham testified that at the time his deposition was taken on November 24, 1922, he was 16 years of age; that he left Missouri on December 23, 1920, for the purpose of making his permanent home with his grandmother and uncle in Mississippi; that his stepfather, N. M. Moore (appellant) knew at the time that he was going to Mississippi for that purpose; that while he lived with his stepfather he was not permitted to attend school and was forced to work all the time, and was only able to enter the fourth grade at school when he went to Mississippi to live; that his stepfather was mean to him, whipped him, and cursed him; that he was well cared for in Mississippi, where he lived with his uncle, J. A. White, and his grandmother, Mrs. M. P. White; that his uncle and grandmother sent him to school all the time, and that they are good to him and his grandmother is as good to him as was his own mother, and that his mother said before her death that she wanted him to live with his grandmother if she (his mother) should die. Obie further testified that he was not willing under any circumstances to come back to Missouri and live with his stepfather. He further testified that Mr. Moore consented for him to go to Mississippi to live with his uncle and grandmother and gave him barely enough money to go on, and for lack of funds he had to sit up in the depot all night at Memphis, Tenn., while en route to his grand-mother's.

The appellant then offered the family Bible showing the age of the minor, but the same was excluded by the learned trial court on the ground that it was not shown that the entry in the Bible was made simultaneous with the birth of Obie Fulgham, to which ruling of the court the appellant duly excepted. The appellant also offered a letter purported to have been written by Obie Fulgham to his sister, Mrs. Mattie Clifton, showing his desire to return to his home in Wardell, Pemiscot county, Mo., and to his brother and sisters, and showing that he was being...