In re Helm's Estate

• Decision Date: 26 December 1939
• Docket Number: No. 6003.,6003.
• Citation: 136 S.W.2d 416
• Parties: In re HELM'S ESTATE.
• Court: Missouri Court of Appeals

136 S.W.2d 416

In re HELM'S ESTATE.

No. 6003.

Springfield Court of Appeals. Missouri.

December 26, 1939.

Rehearing Denied February 9, 1940.

Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Proceeding in the matter of the estate of Mary Ruth Helm, a minor. From a decree of the circuit court affirming an order of the probate court removing Herby C. Helm as guardian and curator of the person and estate of his daughter, Mary Ruth Helm, a minor, Herby C. Helm appeals.

Affirmed.

Leslie D. Rice and Paul E. Carver, both of Neosho, and F. P. Sizer and Wm. J. B. Myres, both of Monett, for appellant.

Ruark & Ruark, of Neosho, for respondent.

SMITH, Judge.

With slight alterations we have adopted the printed statement of the appellant filed in this court, which in substance is as follows:

This appeal is from a decree of the circuit court affirming an order of the probate court removing Herby C. Helm, the appellant, as guardian and curator of the person and estate of his daughter, Mary Ruth Helm, a minor.

On May 17, 1925, Herby C. Helm was appointed in Newton County guardian and curator of the person and estate of his infant daughter, Mary Ruth Helm. He continued to act as such guardian and curator until September 14, 1937, at which time said minor filed a choice of guardian and curator, and nominated H. O. Norris. The written application and nomination by said minor is shown in the record. Pursuant to this application as filed by Mary Ruth Helm, the probate court, on the 17th day of May, 1937, entered an order appointing H. O. Norris guardian and curator of the person and estate of Mary Ruth Helm. To this order of the probate court the appellant filed a motion to set the same aside. Thereafter, the cause was duly transferred and filed in the circuit court of Newton County, on September 14, 1937.

The appellant filed in the circuit court his motion for a jury trial. Among other things which were set up in the motion for a jury trial, appellant alleged, first, that the probate court did not make any finding that the appellant was not a fit or competent person to be guardian and curator of the person and estate of his daughter, Mary Ruth Helm; second, that the appellant had not received ten days' notice of the hearing in the probate court as required by Section 378, Revised Statutes of Missouri, 1929, Mo.St.Ann. § 378, p. 244; third, that the appellant be granted a jury trial in conformity with section 378, Revised Statutes of Missouri, 1929.

The above motion for a jury trial was overruled by the judge of the circuit court, to which action the appellant excepted. Thereafter, the cause proceeded to trial, and evidence was heard by the court on March 11, 1938.

On June 16, 1938, the appellant filed his request for written separate findings of fact and conclusions of law. The court on June 16, without first making and filing his separate findings of fact and conclusions of law as requested by the appellant, rendered judgment. The trial court appointed H. O. Norris guardian and curator of the person and estate of the appellant's daughter. On June 16, 1938, motion for a new trial was filed. The trial court overruled the motion for a new trial on the same day. The appellant filed his affidavit for appeal, which was granted to the Springfield Court of Appeals. Thereafter, on the 29th day of July, 1939, the bill of exceptions was filed and made a part of the record.

The facts as disclosed by the evidence are not in dispute. The appellant had been acting as the natural guardian of his daughter as well as by appointment in Newton County. He had been the guardian and curator of the person and estate of his minor daughter several years prior to 1925, in the State of Arkansas. The trial court in its judgment, did not find that Herby C. Helm was not a fit and suitable person to be guardian of the person and estate of his daughter. The record shows that the appellant's reputation for morality, integrity, honesty, and business ability was good in his community. There is no testimony in this record showing or tending to show that the appellant was not a fit and suitable person to act as guardian of the person and estate of his infant daughter. The probate files in the case of Mary Ruth Helm, a minor, were introduced into the record. These records show that the appellant had made an annual settlement every year that he had been guardian of the person and estate of his daughter, while he was guardian in Missouri, as well as in Arkansas. The trial court's attention was not called to a single item in those settlements which the appellant had expended without the approval of the probate court. Every dollar which had been spent by the appellant had been spent in accordance with the orders of the probate court.

This case was tried in the probate court, as well as in the circuit court, upon the theory that since this minor had attained the age of fourteen years under Section 387, Mo.St.Ann. § 387, p. 248, she had a right to choose any guardian which she pleased. The order of the probate court and the judgment as rendered by the circuit court show this to be true.

The case is presented to us under three assignments of error, which we quote as follows:

"Assignment of Errors.

"I. The court erred in failing to make and file in writing separate findings of fact and conclusions of law, as requested by the appellant before rendering judgment, in violation of Section 952, Revised Statutes of Missouri, 1929 [Mo.St.Ann. § 952, p. 1225].

"II. The court erred in refusing to grant the appellant a jury trial after he had filed a motion requesting the same.

"III. The court erred in appointing H. O. Norris as guardian and curator of the person and estate of Mary Ruth Helm, a minor, without any evidence and any finding that appellant was an unfit and an unsuitable person."

Let us first consider the third and last of these assignments. Keeping in mind that it is the gist of appellant's contention that the court erred in appointing H. O. Norris as guardian and curator without first making a finding that Herby C. Helm was an unfit and unsuitable person to be the guardian and curator. Under this contention attorneys for appellant rely upon, and call our attention to the provision of, Sections 375, 376, 378, 380, 384, 385 and 387 of the Revised Statutes of Missouri 1929, Mo.St.Ann. §§ 375, 376, 378, 380, 384, 385, 387, pp. 241, 243, 244, 246-248. We shall not quote all these Sections, since the interested reader may easily find them in the statutes. Section 387, supra, under which the court acted in appointing H. O. Norris, is as follows:

"Sec. [§] 387. Minor at fourteen may select another guardian

"A minor having a guardian or curator appointed by the court, upon attaining the age of fourteen years may choose another guardian or curator before the probate court, or judge thereof in vacation, in the county of the minor's residence; and if the court or judge is satisfied that the person chosen is suitable and competent, the appointment shall be made accordingly."

It seems to be the contention of the appellant that the minor, Mary Ruth Helm, could only exercise her right of selecting another guardian and curator after the former guardian and curator, Herby C. Helm, her father, had been adjudged unfit to act as such guardian and curator, which was not shown in this instance. Or to state it another way, it is contended that since Herby C. Helm was the natural guardian of the minor, as well as by appointment of a court, that he could not be removed simply by reason of a written request of the minor, who admittedly was over fourteen years of age when the request was made. It being contended that by reason of his being her father and natural guardian he can not be removed without a determination of his unfitness to act.

A reference to the above section of the statute, 387, will show that it is clear, plain and unambiguous. There is nothing in that section that tends to show any exceptions as to what guardians or curators might be affected. There is nothing therein that in any way excepts a natural guardian or parent who has also been selected by the court as guardian and curator. As we read it, it is a section that applies to all guardians and curators having been appointed by the court. There is nothing to intimate that it does not apply to a father who had been appointed by the court. Nor is there anything in the section that would indicate that a guardian and curator, even though a parent and natural guardian, could not be removed as such upon the request of the minor over fourteen years of age. The request of a minor over such age, is one provided by the legislature, and the wording is so plain that it should need no judicial construction. The section specifically provides that the court has but one discretion in the matter, if it be called a discretion, and that is, that the person chosen by the minor is a suitable and competent person. If the court or judge is satisfied that the person chosen is suitable and competent, the appointment shall be made...