Hoerman's Estate, In re

• Decision Date: 14 April 1952
• Docket Number: No. 42674,No. 1,42674,1
• Citation: 247 S.W.2d 762
• Parties: In re HOERMAN'S ESTATE. HOERMAN et al. v. KNOX ex al
• Court: Missouri Supreme Court

Page 762

247 S.W.2d 762

In re HOERMAN'S ESTATE HOERMAN et al. v. KNOX ex al.

No. 42674.

Supreme Court of Missouri, Division No. 1.

April 14, 1952.

Fred F. Wesner, Henry C. Salverter, Sedalia, Tom J. Stubbs, Jack G. Beamer, Kansas City, Wesner & Wesner, Sedalia, Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellant.

V. E. Willis and J. E. Jirmars, Kansas City, Lamm, Barnett & Wolfe and D. S. Lamm, all of Sedalia, for respondents.

HYDE, Judge.

Exceptions to the final settlement of Anna Hoerman, Guardian, overruled by the Probate Court of Pettis County, were sustained by the Circuit Court and judgment entered against her for $36,076.30. The guardian and The Fidelity and Casualty Company ofNew York, which was the surety on her bond, have appealed.

On January 7, 1920, Mrs. Hoerman was appointed guardian for her son Theodore A. Hoerman, an insane veteran of World War I. Her letters were revoked on February 28, 1950, and E. R. Knox was appointed successor guardian, because she had converted to her own use disability payments of $28.75 per month, paid to her as guardian under a $5,000 war risk insurance policy issued to her son, in the total amount of $10,465. These payments covered the period from June 26, 1919 to November 25, 1949 and ware paid by check made to 'Mrs. Anna Hoerman as Guardian and Curator of Theodore A. Hoerman.' Mrs. Hoerman testified that she kept these payments because she was advised by her attorney that she was entitled to them as the beneficiary under the war risk insurance policy. The Veterans Administration, although checking all her settlements, never discovered until 1949 that she was not accounting for these insurance payments.

As guardian of her son, Mrs. Hoerman also received government compensation awarded to him because of his disability which at the time of the final settlement was at the rate of $155.50 per month. She fully accounted for these payments in her settlements. Theodore A. Hoerman was never married and had no dependents when he became insane. He has been maintained in a Veteran's Hospital during the entire period of her guardianship and his estate has accumulated and investments made in United States Bonds of the face value of $14,900. However, beginning in January 1935, an allowance of $85 per month was made to Mrs. Hoerman as dependent mother of her ward. (She had previously received some direct payments from the Veterans Administration for this purpose but these were discontinued in 1934.) Thereafter, commencing October 1, 1940, these payments were reduced to $65 per month. This reduction was made because investigation by the Veterans Administration disclosed that she was using part of her allowance for the support of other adult sons. Mrs. Hoerman also received during her guardianship for her services as guardian (including some allowances for travel and for clothing and necessaries furnished to her ward) additional allowances amounting to $4,638.20.

Mrs. Hoerman was born in Germany and had only seven years of schooling. She came to the United States in 1893 when she was 18, and then had no knowledge of English. She can now speak English and read English print. She married William Hoerman in 1897. They lived on a farm until 1923, prior to which time her husband had become unable to work. They sold the farm for $11,000 and moved to Smithton into a house Mrs. Hoerman built with the first disability payments on her son's war risk insurance policy ($1,183.54 received in the first check) and money borrowed from his estate which she later repaid. Her husband died in 1927, leaving an estate of $7,519.05 in personal property. After being removed as guardian, Mrs. Hoerman conveyed the house to her son for an agreed credit of $7,000, at the request of her successor and the Veterans Administration. She is now being allowed (since December 1, 1950) $75 per month and the use of the house.

In her amended final settlement, Mrs. Hoerman attempted to account for the $10,465 which she had converted by obtaining an additional allowance for maintenance and support as her son's dependent from September 1919 to September 1950. The Probate Court made such an allowance of $33.26 per month for 30 years in the total amount of $11,973.60. The Probate Court found that this, with the amounts previously allowed to Mrs. Hoerman, would amount to an allowance of $75 per month for the 30 year period. The Circuit Court, on appeal, set aside this judgment and found in favor of the exceptors as follows: 'That Anna Hoerman, former guardian and curator of Theodore Hoerman, is indebted to the said Theodore Hoerman in the principal sum of $10,465.00, together with interest at highest legal rate (8%) amounting to $32,611.30, or $43,076.33, from which should be deducted as a credit to which she is entitled $7,000.00, making her liable for the sum of $36.076.30.'

Appellants contend that the Circuit Court erred in sustaining the exceptions to the final settlement. They say Probate Courts may apply equitable principles and may make allowances from the estate of an incompetent for the support of persons other than legal dependents and that they have authority, upon final settlement to approve disbursements made by guardians during their entire term. Appellants particularly rely upon State ex rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, 145. However, it was recognized in that case, that the Probate Court 'is a court of limited jurisdiction, possessing only those powers which have been conferred upon it by statute, and being wholly without equitable jurisdiction, even though it is permitted, when necessity arises, to apply mere equitable principles in the exercise of its statutory jurisdiction.' It was held therein that the provision of Sec. 458.140 (statutory references are to RSMo 1949 and V.A.M.S.) for the Probate Court to make an order, in the estate of an insane person, 'for the support and maintenance of his family', was authority for providing for the support of the widowed mother of the incompetent out of his estate. The Court held the word 'family' should be construed to include 'whomsoever it is the natural or moral duty of the head of the family to support, or who is dependent upon him for support'. In that case, the incompetent had for many years maintained his home with his mother and had regularly contributed to her support the amount of the allowance sought. Furthermore, in that case the Court only decided that the Probate Court had authority to make an allowance and did not pass on the question of what allowance should be made. It is certainly no authority for making a retroactive allowance for a past period during which allowances were made from time to time in the light of the facts and conditions then existing.

There are conflicting cases, some of which appellants cite, on the right of courts to make allowances from an incompetent's estate for persons to whom he is under no legal obligation to support. See Citizens' State Bank of Trenton v. Shanklin, 174 Mo.App. 639, 161 S.W. 341; In re Heck's Guardianship, 225 Wis. 636, 275 N.W. 520; In re Beilstein, 145 Ohio St. 397, 62 N.E.2d 205; In re Flagler, 248 N.Y. 415, 162 N.E. 471; Annotations 59 A.L.R. 653, 160 A.L.R. 1435; 25 Am.Jur. 52, Sec. 79; 44 C.J.S., Insane Persons, Sec. 90, page 242. Chancery Courts have been less restricted in making such allowances than courts acting under statutory authority. It is stated: 'Great caution should be exercised with respect to making allowances to persons for whom the ward is not legally bound to provide; and it has been said that the practice ought rather to be narrowed than extended.' 44 C.J.S., Insane Persons, Sec. 90, page 243. Since the only authority for making such an allowance in this State is Sec 4.58.140, we do not think it can reasonably be construed to authorize what was done here. In the first place, the allowance made by the Probate Court includes eight years (1919-1927) during which Mrs. Hoerman was living with her husband on the farm (1919-1923) and in Smithton (1923-1927). All the evidence shows that she was not dependent upon her son during that time. Furthermore, there was no evidence before the Probate Court that the allowances thereafter made by it were insufficient or that she needed more than was allowed by it, when these previous allowances were made. In fact, the evidence is the other way: namely, that she had sufficient means not only for her own support but enough to contribute to the support of other children. We must, therefore, hold that the evidence before the Probate Court was insufficient to support this additional retroactive allowance.

Appellants further contend that it was not necessary to first obtain on order for expenditures but that the guardian could properly make them and then obtain approval on final settlement, citing St. Vincent's Sanitarium v. Murphy, Mo.App., 209 S.W.2d 560; Cross v. Rubey, Mo.App., 206 S.W. 413, 414; and Farwell v. Commissioner of Internal Revenue, 2 Cir., 38 F.2d 791. The St. Vincent's case involved necessaries furnished to the ward. Cross v. Rubey authorized expenditures 'for the proper education, support, and maintenance of the minor'; but the questioned expenditures in that case were disallowed. The Farwell case involved the question of whether payments made for support of a sister of an insane person were a part of the incompetent's estate for purposes of federal estate tax; these payments had been approved by the Probate Court in Vermont. None of these cases rule the question of a retroactive allowance under Sec. 458.140. Furthermore, Sec. 459.140, which was in effect at the time this 30 year additional allowance was made, provides: 'A guardian shall not apply any portion of the income or the estate for the support or maintenance of any person other than the ward, the spouse and the minor children of the ward, except upon petition to and prior order of the court after a hearing.' The reasonable...