Folger v. Heidel

• Decision Date: 31 May 1875
• Citation: 60 Mo. 284
• Parties: ALICE FOLGER, Respondent, v. CHARLES HEIDEL, Appellant.
• Court: Missouri Supreme Court

60 Mo. 284

ALICE FOLGER, Respondent,

v.CHARLES HEIDEL, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Carroll Circuit Court.

Hale & Eads, for Appellant, cited, in argument, Brent by Guardian vs. Grace, Adm'r, 30 Mo., 253; Mitchell vs. Williams, 27 Mo., 399; Wagn. Stat., 1872, § 28, Ch., 66; Strouse vs. Drennan, 41 Mo., 289.

L. H. Waters, with J. H. Wright, for Respondent.

I. While a guardian may make expenditures for the support and maintenance of his ward, without applying in the first instance to the Probate Court for an order and appropriation, he must show that the expenditure was subsequently sanctioned by the court and allowed him in his settlement. (Brent by Guardian vs. Grace, Adm'r, 30 Mo., 253.) And there must be some record showing that the payment was made under such order or sanction. (Dillon's, Adm'r vs. Bates, etc., 39 Mo., 302.)

II. The payment if made at all by the appellant was for past maintenance, covering a period commencing fourteen years before the pretended payment was made, and made to parties who stood in loco parentis towards respondent, and nothing short of an express order to pay the same, made by a court of competent jurisdiction, should be accepted as a justification of the expenditure. (Otte et ux. v. Becton, 55 Mo., 99; 2 Sto. Eq., § 1354 a., 10 Ed. and note.)

WAGNER, Judge, delivered the opinion of the court.

The first and main exception in this cause relates to the action of the court in rejecting the claim of the defendant for six hundred dollars, which he alleged that he paid for the clothing, support, education and medical attention of plaintiff, who was his ward.

It seems that plaintiff was left an orphan when she was a small infant and the defendant was her testamentary guardian and curator. She always resided with her grandfather and grandmother who treated her as one of the family.

Defendant filed with his settlement, in 1872, a receipt purporting to be signed by the grand parents, G. W. and Nancy Folger which states that the money was for the clothing, support, education and medical attention of Alice, the plaintiff, at the rate of fifty dollars a year; and defendant, in his testimony says that it was for the first twelve years of her life; that Mrs. Folger, who appears to have transacted all the business, caused the receipt to be signed in his presence and ordered him to pay the money to C. W. Heidel; that he did so and took a note payable to the Folgers for the amount.

On the other hand, the execution of the receipt was pointedly denied. Mrs. Shirley, who it was alleged signed the receipt for and at the request of Mrs. Folger, positively denies that she signed the paper produced, and C. W. Heidel, who got the money, says that he went to the defendant to borrow the money, and he told him that he could let him have six hundred dollars of plaintiff's money, and that when he received it defendant told him to draw up a note, payable to Mrs. Folger, and that he drew up the same and gave it to defendant; that he never had any arrangements with Mrs. Folger in regard to borrowing the money; that he borrowed it of the defendant and not of Mrs. Folger.

There was some testimony to show that Mrs. Folger, on one occasion, asked defendant if she could not get something for keeping Alice, and defendant offered to show that he had asked the judge of the Probate Court for an order in relation to the payment of the $600, and asked him if he should pay it, and, if so, whether he would be allowed for it in his settlements. This evidence was objected to, because, 1st, it did not purport to be a claim for necessaries; 2nd, the Probate Court was a court of record, and could only speak by the record, and, 3rd, the oral directions of the judge were not evidence for any purpose. The objections were sustained and the testimony excluded.

Defendant then offered to prove by the probate judge, that he, the judge, told defendant to pay the claim and take the receipt for it, and this evidence was ruled out.

It is not pretended that any of these conversations or directions took place in term time. Whatever is done by a court of record, must appear by the record, and the mere verbal directions or declarations of a judge are not receivable in evidence.

We will not attempt here to analyze the evidence in regard to the receipt. It was directly conflicting--wholly irreconcilable, and the court below, who heard the witnesses, was much more competent to judge of their credibility than we possibly could be. But it seems that the judgment of the court was not founded so much upon the weight of evidence, as upon the conclusion of law that defendant's claim could not be allowed.

It is evident that the receipt was wrongly dated; that fact is now admitted. It bears date in 1868, and if it was given at all, it was executed in 1870. It was intended to cover the period up to 1868, and that would include the first twelve years of plaintiff's existence. It will thus be perceived, that it was for maintenance and support for a time that was entirely past. Now it is very clear that the grandparents never intended to charge the plaintiff anything for living with them She was treated and regarded as one of the family. Upon this point the evidence is conclusive. If after she had lived with them as one of the family, without any intention of charging her for the same, they had changed their minds, it...