In re Estate of Padgett
| Decision Date | 17 October 1905 |
| Citation | 89 S.W. 886,114 Mo.App. 307 |
| Parties | In Re ESTATE OF IRVIN F. PADGETT; IRVIN F. PADGETT, etc., Defendant in Error, v. SMITH, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Appeal from Scotland Circuit Court.--Hon. Edwin R. McKee, Judge.
This proceeding originated in the probate court of Scotland county, having for its purpose the removal of plaintiff in error, who is curator of the estate of Irvin F. Padgett, an infant. The facts, as disclosed by the record, are that one Padgett died, leaving a wife and infant son, Irvin. The wife qualified as administrator of his estate. Afterwards, and before the estate was administered, she married Mr. Smith plaintiff in error, and thereupon the said second husband was duly appointed and qualified as administrator de bonis non of the estate of her first husband and also curator of the estate of her minor son, Irvin. There came into the hands of the curator $ 1,400 of money belonging to said minor and Mrs Smith had $ 1,275 in her own right which came to her by the election of a child's part in the estate of her deceased husband. It was decided that they would purchase a farm whereupon the curator and his wife made the purchase of one hundred and sixty-five acres of land in Scotland county, for which they paid $ 4,125. Of this, the wife furnished $ 1,275 and her husband, the curator, without order of the probate court or other authority therefor, appropriated the $ 1,400 in his hands belonging to his ward and invested it in the purchase of said lands, the curator's father furnishing the remainder of the purchase price, which was $ 1,450. A deed was taken to the land in the name of the curator, James H. F. Smith and his wife, Sadie Smith. Mrs. Smith, the ward's mother, departed this life intestate soon thereafter, leaving said child Irvin as her sole and only heir. On her deathbed she committed the custody of her child to its grandparents, her father and mother. About a year after the curator had thus wrongfully appropriated the $ 1,400 of the ward's means and employed it in the purchase of said lands, he was informed that he had erred in so doing. Thereupon his father executed a deed of trust on certain lands owned by him, securing $ 1,400 in favor of his son as curator of the estate of Irvin F. Padgett. After the death of the mother of the ward, a controversy arose between Mr. Davis, the child's grandfather, and the curator, his son-in-law, as to the rights of the ward in the lands arising by virtue of the mother having furnished $ 1,275 of the purchase money, and the evidence tends to show that the curator claimed that the ward had no interest therein; that he, the curator, succeeded to the rights of his wife by right of survivorship, to the exclusion of her child, the ward. To settle this controversy, they called upon Judge Schofield at Memphis, Missouri, for advice on the subject. Judge Schofield, upon investigation, advised that the child, Irvin, would succeed to the rights of Mrs. Smith, whereupon, in Judge Schofield's office, the following conversation is said by the grandfather to have taken place between himself and the curator: Thereafter, George W. Davis, the grandfather, having been appointed guardian of the person of the child, instituted suit in behalf of the ward in the circuit court of Scotland county, setting up the facts herein detailed and praying the said court to decree that the curator held so much of the lands purchased with the $ 1,400 of the ward's means and $ 1,275, the mother's means, as a trust for the benefit of the ward and that the same be partitioned. Said cause was transferred to the circuit court of Schuyler county by change of venue on the application of the defendant curator. The cause coming up in that court, George W. Davis having failed to qualify as guardian by making the bond required, the circuit court of Schuyler county appointed John C. Mills as guardian for the plaintiff therein and fixed his bond at $ 5,000, which was duly given and which was approved by the court. Upon a hearing of the case, the circuit court of Schuyler county found the issue for the plaintiff and by its decree, divested the title of a pro-rata portion of said lands out of the curator and invested same into the ward and rendered judgment against the curator for certain rents and profits and costs of suit and appointed three commissioners, residents of Scotland county, to view and partition the lands. This decree was appealed from and the case is now pending in the Supreme Court. The record shows the curator contested this litigation.
The suit which afterwards went to Schuyler county, was instituted September 4, 1902, and while it was pending, on November 19, 1903, George W. Davis, the grandfather, acting as next of kin to the ward, instituted this proceeding in the probate court of Scotland county to remove the curator, in which it is alleged that "as said curator, he has charge of considerable estate belonging to said minor, consisting of money and lands; that his interests as such curator are directly in conflict with the interest of said ward, Irvin F. Padgett, and that $ 1,275 of the money belonging to the mother of said Padgett was invested by said Smith in the name of himself and wife and now said Smith is claiming to own the whole of said $ 1,275 as his own individual property; that he is mismanaging said estate in this: he has invested $ 1,400 of the ward's estate in lands in his own name without any order of the court or authority of law; that on account of this conflict of interest and investment aforesaid and general mismanagement of said estate, he is an unsuitable person to execute the trust reposed in him; that this affiant is interested in said estate; he is the grandfather of said Irvin F. Padgett; said Padgett's father and mother are both dead, and in the event of the death of said Padgett, he would be one of the heirs; that said Padgett has no brothers or sisters and no direct descendants except this affiant and his wife, wherefore he prays that said curator be removed from said trust and that a suitable and competent person be appointed to execute the same."
The complaint was properly signed and verified. A hearing was had thereon in the probate court, to which the curator appeared and defended. The probate court found the issues against the curator and ordered his removal. The curator appealed to the circuit court where, upon a trial anew, the judgment of the probate court was affirmed and it was ordered that the curator be removed, whereupon he sued out this writ of error and presents the case here for review.
No declarations of law were asked or given in the circuit court.
Judgment affirmed.
E. R. Bartlett and Berkheimer & Dawson for appellants.
Smoot, Boyd & Smoot and Lewis Myers for defendant in error.
When a husband invests money of the separate estate of his wife and the title is taken jointly it creates no entirety of estate in the survivor, where there is no issue of said marriage, and there is no written consent of the wife for said investment. He is a trustee for her and her heirs, and her heir is entitled to a proportionate part of the land so purchased by such an investment. Crawford v. Jones, 163 Mo. 577; Johnston v. Johnston, 173 Mo. 115; Winn v. Riley, 151 Mo. 66; McLeod v. Venable, 163 Mo. 536.
NORTONI, J. (after stating the facts).
1. The principal contention of plaintiff in error is that the circuit court of Schuyler county had no jurisdiction to proceed in the case wherein John C. Mills was appointed guardian, which was prosecuted to judgment against the curator in that court. With that question we are not concerned in this collateral proceeding. That case is not before this court for review....
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