Greever v. Barker

• Decision Date: 31 December 1926
• Docket Number: 25596
• Parties: Daniel Greever, Belle Greever and George C. Forrester, Appellants, v. W. Frank Barker and Amos Hilbrant
• Court: Missouri Supreme Court

289 S.W. 586

316 Mo. 308

Daniel Greever, Belle Greever and George C. Forrester, Appellants, v. W. Frank Barker and Amos Hilbrant

No. 25596

Supreme Court of Missouri

December 31, 1926

Appeal from Scotland Circuit Court; Hon. N. M. Pettingill Judge.

Affirmed.

J. C Dorian and John M. Jayne for appellant.

(1) When a petition is attacked by a general demurrer, all the facts well pleaded and all the inferences of fact that may be fairly and reasonably drawn from the facts pleaded, must be taken as true. If facts essential to a recovery are pleaded however inartificially or defectively, a general demurrer thereto will not lie. American Brewing Co. v. St. Louis, 187 Mo. 367. (2) Our statute provides when a man dies under guardianship the guardian must at once make his settlement with the administrator, as the administrator takes charge of the property. (3) The respondents claim the trial court was right, and cite the case of Greever v. Barker, 204 Mo.App. 190. That case does not apply to this present case. It only decides that plaintiffs could not recover against the administrator. But our petition in this case is a different case, where she has judgment against the guardian in the probate court. The probate court is a court of record, and it had jurisdiction of the subject-matter and of the parties.

J. E. Luther and Campbell & Ellison for respondents.

(1) Forrester is not guardian of Aaron Hilbrant. The petition shows that he was attempted to be appointed after the decision of the Court of Appeals. This was five years after Hilbrant's death. There having been no guardian, of course there could be no allowance against him and in favor of the Greevers. (2) The appellants have no interest in the land or in its proceeds. The guardian never acquires title to his ward's land, and he cannot make a contract affecting the title to his ward's land without authority of the probate court. Secs. 502, 503, 504, R. S. 1909; Secs. 472, 473, 474, R. S. 1919. (3) Appellants have no interest in the money. If the administrator had the right to sell the land he has the right to retain the money, and distribute it under the order of the probate court. If he had no right to sell, the purchaser might get no title, but the administrator would be entitled to retain the proceeds, so far as appellants are concerned. The sale is not subject to collateral attack. Stark v. Kirchgraber, 186 Mo. 633. (4) The petition shows on its face that appellants claim is barred by limitation. It is also barred by Sec. 468, R. S. 1919, and Sec. 498, R. S. 1909. The claim was not presented until after the former case was disposed of in the Court of Appeals. This was on July 10, 1920, more than five years after Hilbrant's death. Greever v. Barker, 204 Mo.App. 190. All demands not thus exhibited and presented to the court for allowance in one year after the appointment of the first guardian shall be forever barred. Sec. 468, R. S. 1919; Sec. 498, R. S. 1909. (5) This defense did not need to be pleaded. This is an equity suit brought by the man who should make the defense of limitations and in which he joins himself with his adversary. The defense is pleaded in so far as they are concerned. Besides the statute is mandatory and the judgment is void on its face.

Ragland, P. J. All concur, except Graves, J., absent.

OPINION

RAGLAND

This appeal is from a judgment on a general demurrer to each count of the following petition:

"Plaintiffs for a cause of action and amended petition, state that plaintiffs, Daniel Greever and Belle Greever are husband and wife.

"Plaintiffs further state that on the 6th day of January, 1908 plaintiff, George C. Forrester, was duly appointed guardian of the person of Aaron Hilbrant, and as such guardian gave bond, inventoried the property of said ward and acted as such guardian, and that all the property that belonged to said ward was a small farm consisting of about eighty acres located in Tobin Township in Scotland County Missouri; that on said farm was a mortgage, and in order to keep a home for said Aaron Hilbrant, he did not sell the real estate but he kept the same for a homestead for the said Aaron Hilbrant to live and that he arranged with his co-plaintiffs to keep said Aaron Hilbrant, and to occupy the land and it was all the property that said Aaron Hilbrant had; that they was to pay all the interest on the land and to furnish said Aaron Hilbrant his clothing, medicine and in fact to keep him and pay his expenses and when he died, the farm to be sold and they would receive for the money and the care and attention of said Aaron Hilbrant what would be reasonable and right and for said services, the same would be an interest in said lands and for the proceeds thereof, and that they were to give credit for the reasonable value for the rental of the farm, and they to keep the farm up, that is the fencing, etc. That the arrangement was entered into and continued up until the time of the death of said Aaron Hilbrant, which occurred on or about the 24th day of June, 1915.

"Plaintiffs state that on the death of said Aaron Hilbrant the defendant, W. Frank Barker, who was then public administrator of said county and State, attempted to take charge of the estate of said Aaron Hilbrant, deceased, but this plaintiff, George C. Forrester, was never legally discharged as said guardian by the Probate Court of Scotland County, Missouri, and that the plaintiffs, Greever and Greever, were informed and believed that the said defendant W. Frank Barker, who was attempting to act as such administrator, to sell the farm of deceased and was going to pay the debts due from said Aaron Hilbrant, and that these plaintiffs, Greever and Greever, relying and believing the same to be a fact, presented their claim against said defendant, as administrator, and the same was allowed in the sum of $ 2308.41, but that the same was appealed by the defendants herein to the Kansas City Court of Appeals and that the said Kansas City Court of Appeals reversed the decision and finding of the lower court, claiming that these plaintiffs, Greever and Greever, should have presented their claim against the guardian and on the rendering of the decision, the said plaintiffs, Greever and Greever, have since presented their claim against George C. Forrester, as guardian of said Aaron Hilbrant, and had the same allowed on the 15th day of September, 1920, for the sum of $ 1869.44 by the Probate Court of Scotland County, Missouri.

"Plaintiffs further state that the Probate Court of said Scotland County, State of Missouri, by its order of record and in accordance with said decision of said Appellate Court, has duly appointed, reinstated and selected the plaintiff, George C. Forrester, as guardian as aforesaid of the said Hilbrant, and for him to proceed and wind up his said guardianship, and pay the legal debts due from said ward, and against said guardianship, but said guardian never having been heretofore, at any time, legally discharged by the Probate Court of Scotland County, Missouri.

"Plaintiffs further state that the said George C. Forrester, at the time of his appointment as guardian as aforesaid, inventoried the following described lands, situated in Scotland County, Missouri, being 78 acres, a part of the west half of the northwest quarter of Section Twenty-six Township Sixty-four of Range Twelve West, and that he is entitled to the possession of the same, as guardian aforesaid, for the purpose of paying the expenses and debts and claims proved up against him as such guardian in the Probate Court of Scotland County, Missouri, which claims are legal and just and should be paid out of the estate and property of said Aaron Hilbrant, and that defendant, Amos Hilbrant, afterwards on the day of , 1920, entered into such premises and now unlawfully withholds from this plaintiff, George C. Forrester, the possession thereof, to his damage in the sum of one hundred dollars.

"Plaintiff, George C. Forrester, further states that he is entitled to the possession of said lands as guardian aforesaid, and that the monthly value of the rents and profits of said lands is fifteen dollars.

"Wherefore the plaintiff, George C. Forrester, demands judgment for the possession of said lands together with damages and costs.

"Second Count.

"Plaintiffs for a further cause of action and amended petition, state that plaintiffs Daniel Greever and Belle Greever, are husband and wife.

"Plaintiffs further state that on the 6th day of January, 1908, plaintiff George C. Forrester was duly appointed guardian of the person and estate of Aaron Hilbrant, and as such gave bond inventoried the property of his said ward and acted as such guardian, and that all the property that belonged to his said ward was a small farm consisting of about eighty acres, located in Tobin Township, Scotland County, Missouri, that said farm was mortgaged, and in order to keep a homestead for said Aaron Hilbrant, he did not sell the real estate, but kept the same for a home for said Aaron Hilbrant to live in, and that he arranged with his co-plaintiffs to keep said Aaron Hilbrant, and to occupy the land, and as it was all the property that said Aaron Hilbrant had, they were to pay all the interest on said loan and to pay the taxes on the land and to furnish said Aaron Hilbrant with clothing, medicines, and in fact to keep him and pay his expenses, and when he died, the farm would be sold and they would receive for the money and care and attention of said Aaron Hilbrant, what would be reasonable and right for their said services, and they were to give credit for the reasonable value for the rental of the farm, and they were to keep said farm and the proceeds thereof; that this arrangement was entered into and continued up...