In re Guardianship of McMenamy

• Citation: 270 S.W. 662,307 Mo. 98
• Decision Date: 12 March 1925
• Docket Number: 23917
• Parties: IN RE GUARDIANSHIP OF ANGELA McMENAMY; R. EMMET KANE, Guardian, Appellant, v. JOHN McMENAMY, Co-guardian
• Court: United States State Supreme Court of Missouri

270 S.W. 662

307 Mo. 98

IN RE GUARDIANSHIP OF ANGELA McMENAMY; R. EMMET KANE, Guardian, Appellant, v. JOHN McMENAMY, Co-guardian

No. 23917

Supreme Court of Missouri

March 12, 1925

Appeal from St. Louis City Circuit Court; Hon. Karl Kimmel Judge.

Affirmed.

Leahy Saunders & Walther for appellant.

(1) This case should be remanded to the St. Louis Court of Appeals, because this court has no jurisdiction, either because of the amount involved, which is less than $ 7,500 or because of any constitutional question. (2) The pleadings are ample to apprise respondent of the grounds upon which his removal was sought, and the answer specifically avers the alleged gift by the insane wife to her husband, and, therefore, he was a proper person to act as her co-guardian, and could not be required to account for her separate estate, alleged by him to have been given by her to him, but not in writing. The amended reply specifically denied the fact of such alleged gift and its validity, and the mental capacity of Angela McMenamy to make the same. The doctrine of aider by answer has been fully and firmly established in this State. Lee v. Mo. Pac. Ry. Co., 195 Mo. 400; Powell v. Sherwood, 162 Mo. 605; Allen v. Chouteau, 102 Mo. 309; Stivers v. Horne, 62 Mo. 475; Henry v. Sneed, 90 Mo. 424; Dorrell v. Sparks, 142 Mo.App. 464. (3) No appeal lies from an order of the probate court removing the guardian of an insane person. Morris v. Morris, 128 Mo.App. 623. The right of appeal did not exist at common law; it is purely statutory. It does not exist except where expressly given, and cannot be extended to cases not within the statute. Snoddy v. Pettis Co., 45 Mo. 361; Greeley v. Railroad, 123 Mo. 157; Schwoener v. Christopher, 64 Mo.App. 83; Crossland v. Admire, 118 Mo. 91; Kidder v. Wright, 72 Mo.App. 380; Breed v. Hobart, 187 Mo. 140; State ex rel. v. Fowler, 108 Mo. 465; Looney v. Browning, 112 Mo.App. 195; State ex rel. v. Guinotte, 113 Mo.App. 399; Bussiere v. Sayman, 257 Mo. 303. (4) The probate court has power to remove a guardian at any time for neglect of duty, misconduct or mismanagement, or disobedience to any lawful order and to appoint others. Sec. 492, R. S. 1919; King v. King, 73 Mo.App. 78. (a) The statutory term "misconduct" in a removal statute has been construed in the following cases, and assertion of an interest adverse to the ward's estate is "misconduct." In Matter of Gleason, 17 Misc. (N. Y.) 570; In Matter of Petition of Cohn, 78 N.Y. 249; 2 Perry on Trusts, secs. 817, 818; In Matter of West, 40 Hun, 291, affirmed 111 N.Y. 687; Lichtenberg v. Herdtfelder, 103 N.Y. 306; In re Wallace, 74 N.Y.S. 33; In re Kirchner, 153 N.Y.S. 1091. (b) It does not matter whether the application is presented by a party interested or not. The court can act of its own motion. In re Estate of Padgett, 114 Mo.App. 307; In re Ford, 157 Mo.App. 141. (5) Failure of a guardian to file an inventory and account for the assets is sufficient ground for removal. King v. King, 73 Mo. 78; In re Estate of Padgett, 114 Mo.App. 307. If the curator asserts some claim to property claimed by his ward, he should be removed. In re Estate of Padgett, 114 Mo.App. 307; In Matter of Gleason, 17 Misc. (N. Y.) 570; In Matter of Petition of Cohn, 78 N.Y. 249; 2 Perry on Trusts, secs. 817, 818; Manser v. Baker, 60 Ore. 240; In re Mills' Estate, 22 Ore. 210; Marks v. Coats, 37 Ore. 609; Kelberg's Appeal, 86 Pa. St. 129; Putney v. Fletcher, 148 Mass. 247; Winship v. Bass, 12 Mass. 198; State ex rel. Miller's Admr. v. Bidlingmaier, 26 Mo. 483. (6) A gift by a wife to a husband of her separate estate is void unless evidenced in writing. Sec. 7328, R. S. 1919; McGuire v. Allen, 108 Mo. 403; Jones v. Elkins, 143 Mo. 647; Alkire Grocer Co. v. Ballenger, 137 Mo. 369; Bank v. Winn, 132 Mo. 80; Hoffman v. Hoffman's Exr., 126 Mo. 486; Gilliland v. Gilliland, 96 Mo. 522; Broughten v. Brand, 94 Mo. 169; Winn v. Riley, 151 Mo. 161; Conqueror Trust Co. v. Craig, 204 Mo.App. 650; Hurt v. Cook, 151 Mo. 416; Orr, Executor, v. Union Trust Co., 291 Mo. 383. (7) John McMenamy, co-guardian and respondent herein, was an incompetent witness to testify to the alleged facts in regard to the alleged gift of his insane wife to himself, she admittedly being insane and having been so for a great many years prior to the trial. Sec. 5410, R. S. 1919; Orr v. Union Trust Co., 291 Mo. 383; Scott v. Riley, 49 Mo.App. 251; Dunn v. German-American Bank, 109 Mo. 90; McClure v. Clement, 161 Mo.App. 23; Edwards v. Scharff, 279 Mo. 78. (8) The evidence to establish a gift inter vivos, asserted by the donee after the death, or insanity of the donor, must be conclusive. Hunter v. Wabash, 149 Mo.App. 243; Lohnes v. Baker, 156 Mo.App. 397; In re Estate of Soulard, 141 Mo. 642; Albrecht v. Slater, 233 S.W. 11; Foley v. Harrison, 233 Mo. 460; Rosenwald v. Middlebrook, 188 Mo. 58. (9) Erroneous declarations of law, declaring the theory upon which the trial court proceeded to enter judgment, are reversible error. Blount v. Spratt, 113 Mo. 48; Land Company v. Bretz, 125 Mo. 418; Steele v. Johnson, 96 Mo.App. 156.

W. W. Henderson and Chas. G. Revelle for respondent.

(1) An appeal lies from an order of the probate court removing the guardian of an insane person and revoking his appointment. Sec. 2436, R. S. 1919; Coleman v. Farrar, 112 Mo. 72; Hall v. County Court, 27 Mo. 329; Stanton v. Johnson's Est., 177 Mo.App. 56; Brockman v. Webb, 189 Mo.App. 475; Sheridan v. Fleming, 93 Mo. 321; Estate of Rooney, 163 Mo.App. 393; Hanley v. Holton, 120 Mo.App. 393; Finney v. State, 9 Mo. 227; McCrary v. Menteer, 58 Mo. 446; Cuendet v. Henderson, 166 Mo. 657. (2) Upon an appeal from the probate court to the circuit court the latter becomes fully possessed of the facts and is required to hear and determine the same anew. Sec. 289, R. S. 1919; Coleman v. Farrar, 112 Mo. 72. (3) A guardian can be removed only for the causes enumerated in the statute, and then only upon a petition and citation containing distinct allegations on the grounds for removal, and a citation for removal upon one ground does not confer jurisdiction to remove him upon that ground. 21 Cyc. 58; State ex rel. v. Bird, 253 Mo. 569; Richal v. Richal, 10 La. 454; Wacherle v. People, 168 Ill. 250; Calvin v. State, 127 Ind. 403; Edwards v. Maura, 12 La. Ann. 887; Phillips v. Williams, 26 Ky. L. R. 654; Speight v. Knight, 11 Ala. 461; McCloskey v. Plantz, 76 Minn. 323; Weldon v. Keen, 37 N. Y. Eq. 251; Scott's Estate, 10 Pa. Dist. 213; Maura v. Ritchie, 16 Fed. Cas. No. 9312. (4) Respondent's failure to file an earlier inventory was due to such causes and occurred under such circumstances as to not warrant his removal. It particularly was not sufficient to make it the mandatory duty of the trial court to remove him. Smith v. Young, 160 S.W. 822; State ex rel. v. Bird, 253 Mo. 569. (5) The petition for removal does not allege as grounds therefor any alleged conflict of interest, and the record fails to disclose such a conflict and situation as to make necessary respondent's removal on that ground. Smith v. Young, 160 S.W. 822; State ex rel. v. Bird, 253 Mo. 569; Mitchell v. Mitchell, Montreal L. R., 4 Q. B. 191; Gray's Estate, 4 Kulp. (Pa.) 157; Murray v. Angel, 16 R. I. 692; Maloney's Estate, 1 Phila. (Pa.) 294, 9 Leg. Int. (Pa.) 14, 5 Clark, (Pa.) 139. (6) A wife can make a valid gift of personal property to her husband without evidencing the same in writing. She can do so by making a delivery thereof. Sec. 7323, R. S. 1919; O'Day v. Meadows, 194 Mo. 614; Rice-Stix Co. v. Sally, 176 Mo. 107; 12 Ruling Case Law, p. 823; Westerman v. Lodge, 196 Mo. 710; State ex rel. v. Swanger, 190 Mo. 576; Blandy v. Asher, 72 Mo. 31; Haguewood v. Miller, 273 Mo. 89; Corn v. Ligon, 71 Ga. 692. (7) The witness McMenamy was competent to testify to the matters brought out during his first examination. Elsea v. Smith, 273 Mo. 407; Eaton v. Cates, 175 S.W. 953; Burns v. Polar Wave Co., 187 S.W. 147; First National Bank v. Payne, 111 Mo. 298; Kille v. Gooch, 184 S.W. 1158. (a) No sufficient objection was made to the testimony of this witness, and all objections thereto were thereby waived. Pope v. Mo. Pacific, 175 S.W. 955. (b) The witness having been subjected to a thorough examination by appellant and his counsel in a proceeding in the probate court relating to the same matter, all objections to his competency as a witness were waived. In re Trautmann Estate, 254 S.W. 286; Imbodens v. Trust Co., 111 Mo.App. 220. (8) Instruction 3 given by the court is correct. State ex rel. v. Bird, 253 Mo. 569. (9) Appellant's motion to remand this case to the Court of Appeals should be overruled, because upon the record this court is the only court having jurisdiction to determine all the issues of law directly involved.

OPINION

Graves, C. J.

This case reaches this court from Division Two, it having been certified to such court by a full vote of the St. Louis Court of Appeals, and upon two grounds (1) that there was a constitutional question involved, and (2) that the amount involved exceeded $ 7,500. The opinion in Division Two having been rejected the case has fallen to me.

Angela McMenamy is the unfortunate insane wife of respondent John McMenamy. The wife inherited some property. The husband had not at first been officially in charge of the estate, and after she became insane he placed her in St. Vincent's Hospital, where during all the years he had cared for her. Delphine McMenamy Seabold was the instrument through which her father, John McMenamy, and Dr. Kane were appointed joint guardians by the probate court (by agreement) August 6, 1917. McMenamy in the fall of 1906 had placed the wife at St Vincents, where she has been ever since. Shortly after Dr. Kane became co-guardian he began proceedings to have...