In re Estate of Buie
| Decision Date | 29 April 1902 |
| Citation | 68 S.W. 101,94 Mo.App. 367 |
| Parties | In re Estate of ELLEN BUIE, Respondent, v. R. T. WHITE, Curator, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dunklin Circuit Court.--Hon. James L. Fort, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
C. P Hawkins and J. P. Tribble for appellant.
(1) The court erred in rejecting the offer of guardian and curator to prove that he made the repairs on the ward's estate and that the repairs and fencing were necessary and beneficial to the estate of his ward; even though there had been no previous order of court allowing such expenditure. It is made the duty, by law, of the guardian and curator to take charge of, care for and manage the estate of his ward. R. S. 1899 sec. 3496; 9 Am. and Eng. Ency. of Law (1 Ed.), p. 116. (2) And he is required by statute to make annual settlements under oath, showing the application of all moneys expended by him for the education, support and maintenance of his ward, as well as all moneys expended for the preservation of the minor's estate. R. S. 1899, sec. 3520. (3) The very wording of this section certainly implies a power in the guardian to expend money for the preservation of the estate of his ward. The language of the statute will admit of no other construction. It has been held that the guardian will be liable for the rent which he loses by reason of his failure to repair, if it appear that he could have received rents by making the needed repairs. Smith v. Gummere, 39 N.J.Eq. 27. (4) Likewise holding him responsible for a depreciation in the value of the ward's lands occasioned by his failure to make repairs. Willis v. Fox, 25 Wis. 646; Irvine v. McDowell, 4 Dana (Ky.) 629; Lewis v. Carson, 16 Mo.App. 357. (5) When a cause reaches the circuit court on appeal he must proceed to try the cause anew without regard to any error, defect or other imperfection of the record in the proceedings in the probate court. R. S. 1899, sec. 3535; In re Estate of Booth, 38 Mo.App. 456; Ferry v. McGowan, 68 Mo.App. 612; Hawkins v. Cunningham, 67 Mo. 415; Yeoman v. Younger, 83 Mo. 424. It follows, therefore, that the court decided the case, as to the items of credit claimed by the guardian for repairs, on a wrong theory.
Walker & Cox for respondent.
(1) A previous order of court is necessary to enable the guardian to borrow money. R. S. 1899, sec. 3504. (2) A previous order of court is necessary to enable the guardian to obtain credit for money expended for repairs. R. S. 1899, sec. 3517. (3) Guardian is not entitled to charge for board of minor, where he is in loco parentis, and had means of his own, and had no agreement to charge. In re Tucker, 74 Mo.App. 331. (4) Annual settlements are not even prima facie evidence in favor of the guardian. State to use v. Reeper, 82 Mo. 57.
--Appellant, guardian of respondent, on respondent attaining her majority, appeared in the probate court of Dunklin county and filed his account for final settlement. Respondent filed exceptions to the settlement. The cause was heard on the exceptions in the probate court where a judgment was rendered that was unsatisfactory to the guardian and from which he appealed to the circuit court. At the November (1900) term of the circuit court, the cause was heard anew, again resulting in a judgment unsatisfactory to the guardian and from which he appealed here after the court had denied him a new trial.
The following is a list of the items embraced in the exceptions to the settlement, which the circuit court sustained in whole or in part, to-wit:
I. In respect to the two items of fifty-one dollars and twenty-six cents, and sixty dollars and twelve cents, for repairs, the guardian claimed he had paid these sums for repairs on his ward's real estate and asked credits therefor in his final settlement. The probate court disallowed these credits and the circuit court, for the reason that they had not been allowed and approved by the probate court, refused to hear any evidence as to the necessity of the expenditures. This ruling is assigned as error.
The guardian has the care and management of his ward's real estate, both real and...
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