Frost v. Redford

• Citation: 30 S.W. 179,127 Mo. 492
• Parties: Frost, Appellant, v. Redford
• Decision Date: 18 March 1895
• Court: Missouri Supreme Court

30 S.W. 179

127 Mo. 492

Frost, Appellant, v. Redford

Supreme Court of Missouri, Second Division

March 18, 1895

Certified from Kansas City Court of Appeals.

Reversed.

J. W Suddath and S. P. Sparks for appellant.

(1) Guardians of insane persons are trustees, and are governed by the law pertaining to trustees. Michael v. Locke, 80 Mo. loc. cit. 551; State to use v. Jones, 89 Mo. loc. cit. 478. (2) Trust funds in the hands of trustees are to be managed and disposed of by them for the equal benefit of all creditors. State ex rel. v. Brockman, 39 Mo.App. 131, and cases cited. (3) A power given to a trustee to pay such creditors, and prefer such claims as he pleased would render the trust void. 2 Perry on Trusts [2 Ed.], sec. 600. (4) The statute makes it the duty of the guardian of an insane person to pay all debts due from his ward, so far as his estate and effects will extend. R. S. 1889, sec. 5530; Conant v. Kendal, 21 Pick. (Mass.) 36-41.

O. L. Houts for respondent.

(1) Before the institution of plaintiff's suit, defendant had paid for his ward, and his creditors, $ 475.92 more than he had received, and he is not, therefore, liable to plaintiff in this, or any other action. And the fact that in paying his ward's debts he did not pay them pro rata, does not render him liable. Frost v. Redford, 54 Mo.App. 362; State to use v. Jones, 89 Mo. 470; R. S. 1889, chap. 86. (2) Our statutes are an absolute bar to plaintiff's recovery in this action against defendant. "In all actions commenced against such insane person, the process shall be served upon his guardian, and, on judgment against such insane person or his guardian, as such, the execution shall be against his property only." R. S. 1889, sec. 5544. (3) At common law, the administrator of a deceased person, was not compelled to pay the debts of the deceased person pro rata. It is only by virtue of the statutes that he is compelled to do so now in this state. Woerner on Administration, sec. 376. (4) And under the statutes of this state, as they existed prior to 1883, for settling insolvent partnership estates, the surviving partner was not required to pay pro rata, but was permitted to pay in full such as he saw fit. Crow v. Weidner, 36 Mo.App. 412; Collier v. Cairns, 6 Mo.App. 190. In order to provide for payment pro rata, the statute has since been amended. R. S. 1889, sec. 64. (5) Defendant's plea of res adjudicata was fully made out. Plaintiff brought suit against E. D. Frost, the insane person, and the defendant in his original demand, asking judgment against both of them. Upon trial had, judgment was entered in favor of the defendant, which stands unreversed and unappealed from, and is, therefore, a bar to this action. The fact that plaintiff obtained judgment against E. D. Frost, the insane person, does not give him a new right of action against defendant on that judgment.

OPINION

Burgess, J.

From a judgment rendered in the circuit court, plaintiff appealed to the Kansas City court of appeals, where the judgment was reversed and the cause remanded, but, because of an apparent conflict in the decision of the case by the court of appeals, and the decision of this court in State to use v. Jones, 89 Mo. 470, 1 S.W. 355, the case was certified to this court. The case is reported in 54 Mo.App. 345. The facts, as stated by Smith, P. J., are as follows:

"This was an action at law, based upon a judgment recovered by the plaintiff against Ebenezer D. Frost, who had previously been adjudged insane. The petition alleged, among other things, that the defendant had been appointed guardian of the person and curator of the estate of said Frost, and had duly qualified as such; that there came into the hands of said defendant, as such curator, the sum of $ 10,000 in cash and personal property, and that the plaintiff at the time of the defendant's appointment gave the latter notice of his claim and demanded payment thereof. The answer admitted the defendant's appointment and qualification as guardian and the recovery of said judgment, but denied the other allegations of the petition.

"There was a submission of the case to the court and a separate finding of facts and conclusions of law by it, which (omitting the facts admitted by the pleadings) was as follows: 'That there came into his hands, as such guardian and curator, prior to the commencement of this suit, in cash and other personal property, the sum of $ 4,216.25. That this suit is based on a debt existing, due and owing by said E. D. Frost to plaintiff N. B. Frost at the time he was so adjudged insane, which was reduced to judgment in this court on the seventeenth day of February, 1891, in a suit thereon against Ebenezer D. Frost, to which action said defendant herein (Redford) appeared and defended as guardian, and the amount of said judgment was $ 2,353.75, bearing interest at the rate of six per cent. per annum.

"'The court further finds that in December, 1888, or at least prior to January 29, 1889, the date of sale, plaintiff N. B. Frost gave the said defendant Redford notice of said demand so due and owing by said E. D. Frost and demanded payment thereof which demand was refused by said Redford; that, at the time said E. D. Frost was adjudged insane, he was indebted to and owing divers parties, including this plaintiff, in the aggregate, the sum of $ 12,069.05. It does not affirmatively appear whether there were any other debts or not; that after notice of plaintiff's demand, to wit, between February 16, 1886, and June 15, 1886, the defendant paid out on a portion of said indebtedness, to some of the creditors, the sum of $ 1,639.87, but paid the plaintiff nothing whatever on his demand; that the suit culminating in this judgment of the seventeenth day of February, 1891, hereinbefore referred to was commenced May 25, 1889. The court further finds that the said Redford, as guardian, distributed and disposed of said assets so received by him belonging to his said ward in the manner, to the persons, in the amounts and at the time,...