In re Moore's Estate

• Decision Date: 02 July 1945
• Docket Number: 39457
• Parties: In Re Estate of Fountain S. Moore, n.c.m., Martha A. Chappel, Guardian, City of St. Louis, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 229

354 Mo. 240

In Re Estate of Fountain S. Moore, n.c.m., Martha A. Chappel, Guardian, City of St. Louis, Appellant

No. 39457

Supreme Court of Missouri

July 2, 1945

Rehearing Denied September 4, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Appeal dismissed.

Joseph F. Holland, George L. Stemmler, and James V Frank for appellant.

(1) Section 460, R.S. 1939, expressly directed the respondent to take charge of her ward and to provide for his support and maintenance, in some suitable place, to be selected by her with the court's approval, and, by necessary implication, said section directed her to pay for it, if necessary, out of any funds of the ward in her possession, which she could lawfully do without a previous order of the court. (2) Section 474, R.S. 1939, expressly authorized the probate court, on respondent's application or on the court's own motion, to order and compel the respondent to use any available funds of her ward, in her possession, for his support, maintenance, nursing and medical attention. (3) Section 497, R.S. 1939, gave the probate court authority to commit respondent's ward to the city's sanitarium, and Section 499, ib., made it the duty of respondent to pay the expenses of his confinement. (4) The bond given by the respondent, as guardian and curatrix of her ward, pursuant to Section 456, R.S. 1939, obligated the respondent to obey all lawful orders of the probate court, respecting her duties as guardian and curatrix of her ward. (5) Section 34, of Article VI, of the Constitution of 1875, has been correctly interpreted by the General Assembly as giving the probate court judicial power to compel guardians to obey the statutes governing their conduct, and that means power to compel the respondent to obey its lawful order, directing her to pay the indebtedness stated therein, for the support and maintenance of her ward. Section 2451, R.S. 1939. (6) The St. Louis Court of Appeals has ruled that Section 34, of Article VI, of the Constitution of 1875, granted the probate court power, on its own initiative and motion, to enforce the statutes governing the conduct of guardians. In re Ford, 157 Mo.App. 141. (7) The Legislature is and has been powerless to grant judicial power to probate courts, since January 1, 1879, the effective date of Article 11, Chapter 10, R.S. 1939, establishing the present "uniform system of probate courts," as directed by Section 34, Article VI, of the Constitution. State v. Locker, 26 Mo. 384; In re Sizer and Gardner, 300 Mo. 369; Ward v. Pub. Serv. Co., 341 Mo. 227.

N. Murry Edwards for respondent.

(1) No bill of exceptions was allowed and filed in the trial court in this case and the appellant does not claim or point out any error in the record proper. There is, therefore, nothing before this court for review, and the judgment of the circuit court should be affirmed. U.S. v. Gamble & Bates, 10 Mo. 457; Brown, Admr., v. Foote, 55 Mo. 178; Amos v. Wetzel, 133 S.W.2d 361; Laybourne v. Columbia Natl. Bank, 56 S.W.2d 790. (2) The motion to dismiss is not part of the record proper before this court for review. Brown, Admr., v. Foote, 55 Mo. 178; Amos v. Wetzel, 133 S.W.2d 361; Lloyd v. Thurman, 69 Mo.App. 145. (3) The citation is not a part of the record proper before this court for review. St. Louis v. Hollrah, 175 Mo. 79; Sidwell v. Kaster, 232 S.W. 1005; In re Breslin's Estate, 66 P. 692. (4) There is no provision in law warranting an order by the probate court directed to a guardian of a person N.C.M. commanding such guardian to pay for alleged charges of keeping said ward in the past bottomed on matters arising subsequent to the appointment of the guardian. St. Louis v. Hollrah, 175 Mo. 79; Sidwell v. Kaster, 232 S.W. 1005; In re Breslin's Estate, 66 P. 962; In re Moore's Guardianship, 148 S.W.2d 116. (5) Title to the funds in the ward's estate is in the insane ward. Judson v. Walker, 155 Mo. 166. (6) The guardian or curator of an insane ward's estate has no principal whom he can bind by contract. Grove v. Reynolds, 100 Mo.App. 56. (7) The guardian of an insane ward's estate must deal on a cash basis. He cannot contract for support and maintenance of his ward. Greever v. Barker, 289 S.W. 586. (8) A probate court order such as that sought by appellant is violative of the Constitution of the United States, Section 1, Amendment 14, and Article II, Section 30, of the Constitution of the State of Missouri, in that it would take and confiscate the property of the ward and deprive him of his property without due process of law and deny him equal protection of the laws. Maffert v. Lawson, 287 S.W. 610; Hilder v. Short, 257 S.W. 112; Wilcox v. Phillips, 169 S.W. 55; State ex rel. v. North, 264 S.W. 678. (9) A probate court order such as that sought by appellant is unlawful, since it seeks to take and convert funds of an insane United States war veteran derived from compensation payments made by the United States Government, when such funds are rendered exempt by the statutes of the United States. Sec. 454a, Title 38, U.S.C.A.; Earl v. Reynolds, 176 S.E. 91; Speer v. Pierce, 77 S.W.2d 77; In re Murphy's Committee, 236 N.Y.S. 343; Succession of Robinson, 132 So. 261. (10) Where any of the grounds assigned in a motion are well taken, judgment sustaining that motion should be affirmed, even though the ground assigned by the trial court is not well taken. Johnson Grain Co. v. C., B. & Q., 164 S.W. 182; Kelly v. City of Higginsville, 171 S.W. 966.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This is an appeal from an order of the circuit court of St. Louis dismissing a proceeding appealed from the probate court.

The proceeding dismissed was initiated by the probate court which of its own motion issued a citation to Martha Chappel, respondent here, as guardian of Fountain S. Moore, a person of unsound mind. Moore had been maintained and supported by the City of St. Louis at its Sanitarium for the insane from October 30, 1933, to July 31, 1938, and the City had, prior to the present proceeding, unsuccessfully sought to collect therefor. See In re Moore's Guardianship (Mo. App.), 148 S.W.2d 116. The background for the resistance on the part of the respondent guardian may be inferred, we think, from a statement in her suggestions in support of her motion filed here to dismiss the appeal. Said statement follows:

"On August 31, 1938, the City of St. Louis, in an effort to collect the alleged debt from this estate, filed a petition in the probate court asking that Judge Arnold (the probate judge) issue an order on this guardian directing her to pay the City $ 1,141.29 for alleged maintenance of her ward between October 30, 1931, and July 31, 1938. That petition was granted as prayed by Judge Arnold. Respondent guardian refused to comply with the order and appealed to the circuit court because Fountain S. Moore, ward of this estate, had been taken to the City Sanitarium by the police of the City of St. Louis, where he was detained. Soon after Moore had been taken to the City Sanitarium the United States Veterans' Bureau wrote to the Superintendent of the City Sanitarium, asking if Fountain S. Moore was a paid patient or a free patient. The Superintendent of the City Sanitarium wrote the Veterans' Bureau to the effect that Fountain S. Moore was a free patient. The United States Veterans' Bureau, upon receipt of the letter that Fountain S. Moore was a free patient, reduced the compensation due him on account of his service in the Spanish-American War by the amount of $ 25.00 per month, and thereafter Moore's estate drew $ 25.00 a month less than it was entitled to. Under these circumstances, Fountain S. Moore's guardian considered that the estate did not owe the City of St. Louis anything, and refused to comply with Judge Arnold's order, and thereupon took an appeal to the circuit court." The proceeding commenced August 31, 1938, was decided adversely to the City in the case of In re Moore's Guardianship, supra.

The transcript of the present proceeding filed here shows that the probate court, on March 5, 1943 (March term), upon examination of its record, found that at all times during said guardianship of respondent "there were free assets" in her hands as guardian to amply maintain and support said ward, but that she had not applied for an appropriation for the support and maintenance of her ward; had not paid the City for such and had made no arrangement to do so. Upon such finding the probate court, on the same day, March 5, 1943, issued a citation to respondent, as such guardian, returnable March 25, 1943 (continued to March 26th) to show cause, if any, "why an order for an appropriation for the past support and maintenance of her ward should not be entertained and the City of St. Louis paid therefor."

Limiting appearance for the purpose only, respondent guardian, on March 24, 1943, filed a motion in the probate court to set aside the citation order. March 26, 1943, the motion to set aside was overruled, and a hearing on the citation was continued to April 2, 1943. On April 2, the citation came on to be heard; James V. Frank, assistant city counsellor, was present and entered "his appearance" but the guardian, "though duly served", did not appear. Whereupon said proceeding was heard, "submitted upon the evidence adduced", and taken under advisement. April 8, 1943 (March term), the probate court found "from the evidence adduced . . . with the aid of James V. Frank, associate city counsellor", that "said ward was, by the City, furnished his board and lodging, medical care and nursing" from October 30, 1933, to September 8, 1940, with the "knowledge and consent" of his guardian; that a city ordinance enacted in 1936,...