In re Stevens' Estate

• Decision Date: 03 May 1938
• Docket Number: No. 24453.,24453.
• Citation: 116 S.W.2d 527
• Parties: In re STEVENS' ESTATE. CASKEY v. CASKEY.
• Court: Missouri Court of Appeals

116 S.W.2d 527

In re STEVENS' ESTATE.

CASKEY v. CASKEY.

No. 24453.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Proceedings in the matter of the estate of Arthur Butler Stevens, a minor, wherein Kenneth B. Caskey, as curator of the minor, filed a final settlement to which Louise M. Caskey, guardian and curatrix of Arthur Butler Stevens, filed exceptions. From an adverse judgment, Kenneth B. Caskey appeals.

Judgment reversed, and cause remanded, with directions.

J. Hugo Grimm and H. Hadley Grimm, both of St. Louis, for appellant.

W. F. Stahlhuth, of Clayton, for respondent.

SUTTON, Commissioner.

On September 7, 1928, Kenneth B. Caskey was appointed guardian of the person and curator of the estate of Arthur Butler Stevens, a minor of the age of fifteen years, by the probate court of St. Louis county. The minor's father was killed in a railroad accident in 1918. His maternal grandfather was appointed as guardian of his person and curator of his estate in Memphis, Tenn., and continued to act as such guardian and curator until his death in 1928. On August 21, 1926, Louise M. Stevens, mother of the minor, was married to Kenneth B. Caskey. After their marriage they lived in St. Louis county, and the minor lived with them as a member of the family. On November 8, 1933, the minor filed application in the probate court of St. Louis county for the appointment of a new guardian and curator, and requested the appointment of his mother, Louise M. Caskey. The probate court granted the application, appointed the mother, and ordered Kenneth B. Caskey to make final settlement as curator. On December 8, 1933, he filed his final settlement, showing a cash balance due the minor of $21.11, and showing that in addition he had on hand bonds of the aggregate face amount of $2,500. To this settlement Louise M. Caskey as curatrix duly filed her exceptions. The probate court granted some of the exceptions, and denied others. Thereupon, the cause went on appeal to the circuit court. From the judgment of the circuit court, rendered upon a trial of the exceptions anew in said court on appeal, Kenneth B. Caskey has appealed to this court.

It appears that on December 19, 1930, appellant filed in the probate court his first settlement as curator. In that settlement he charged himself with $4,746.88 as received from the estate of the former curator. He also charged himself with interest on corporate bonds in the aggregate amount of $102.10. He took credit with disbursements allowed by the circuit court aggregating $182.25.

On December 16, 1931, appellant filed a settlement in which he charged himself with interest on corporate bonds amounting to $172.50, and took credit with disbursements allowed by the circuit court aggregating $22.97.

On December 16, 1932, appellant filed a settlement in which he charged himself with interest on corporate bonds amounting to $83.75 and with interest on a United States Treasury bond amounting to $18.75, and took credit with disbursements allowed by the circuit court aggregating $35.61.

On September 12, 1933, appellant filed a settlement in which he charged himself with interest on corporate bonds amounting to $72.50 and with interest on a United States Treasury bond amounting to $18.75, and took credit with disbursements allowed and approved by the circuit court aggregating $26.47.

In his final settlement appellant charged himself with interest on a corporate bond amounting to $20.50 and with interest on a United States Treasury bond amounting to $18.75, and took credit with disbursements allowed by the circuit court aggregating $53.11.

In his settlement filed on December 19, 1930, appellant took credit with $800 for maintenance of the ward for a period of approximately four years prior to July 21, 1930. The circuit court disallowed this credit, and ordered that appellant be charged with interest thereon at 6 per cent. compounded annually from July 21, 1930.

In his settlement filed on December 16, 1931, appellant took credit with $7.50 for commissions paid on the purchase and sale of a Liberty bond. The circuit court disallowed this credit, and ordered that the appellant be charged with interest thereon at 6 per cent. compounded annually from June 3, 1931.

In his settlement made on March 20, 1933, appellant took credit with $416.22 as the amount of loss on the sale of a corporate bond. The circuit court disallowed this credit, and ordered that appellant be charged with 6 per cent. interest thereon compounded annually from March 20, 1933.

In his settlement filed on September 12, 1933, appellant took credit with a number of disbursements for maintenance of the ward aggregating $194.50. The circuit court disallowed these credits, and ordered that appellant be charged with interest thereon at 6 per cent. per annum compounded annually from September 12, 1933.

In his final settlement appellant took credit with $450 for maintenance of the ward from July 21, 1930, to January 1, 1933, at $15 per month, and with $60 paid ward as college money, and with $202 paid Louisiana State University. The circuit court disallowed the credit of $450, and ordered that appellant be charged with 6 per cent. interest thereon compounded annually from December 6, 1933, disallowed the credit of $60, and ordered that appellant be charged with interest thereon at 6 per cent. compounded annually from September 16, 1933, and disallowed the credit of $202, and ordered that appellant be charged with 6 per cent. interest thereon compounded annually from September 25, 1933.

Appellant also took credit in his final settlement with $171.05 as commissions. The circuit court disallowed this credit, and ordered that appellant be charged with 6 per cent. interest thereon compounded annually from December 6, 1933.

The circuit court also ordered that appellant be charged with interest at 6 per cent. compounded annually on moneys used by him in purchasing corporate bonds as follows: On $977.25 at 6 per cent. compounded annually from July 9, 1930, on $985.56 at 6 per cent. compounded annually from July 11, 1930, on $981.53 at 6 per cent. compounded annually from July 14, 1930, and on $451.61 at 6 per cent. compounded annually from October 3, 1930, less the aggregate amount of interest collected on said bonds with which appellant charged himself in his settlements.

Appellant complains here of the disallowance of said credits and the charging of interest against him as above set out.

Appellant concedes that he is properly chargeable with simple interest on moneys used to purchase corporate bonds and also concedes that he is not entitled to the credit of $416.22 for loss on sale of a corporate bond for the reason that the purchase of such bonds with his ward's money was unlawful, but he insists that he ought not to be charged with compound interest on the moneys used in the purchase of corporate bonds, and ought not to be charged with any interest on the credit of $416.22 taken for loss on the sale of a corporate bond.

Our statute, section 418, R.S.1929, Mo.St.Ann. § 418, p. 264, provides that guardians and curators shall loan the money of their wards at the highest rate of legal interest that can be obtained, on prime real estate security, or invest it in bonds of the United States, or of the state of Missouri, or of the federal farm loan bank, and shall account for such interest received, which shall be charged in their annual settlements; the interest in such cases to be paid annually, and if not then paid to become a part of the principal and bear interest at the same rate. It further provides that it shall be the duty of the court to require every guardian and curator to make a report at every annual settlement of the disposition made by the guardian or curator of the money belonging to the ward, and that if such money has not been loaned out the guardian or curator shall state such fact and the reasons in his report. In view of this statute we think appellant has no just ground to complain that the court charged him with compound interest at 6 per cent. on the money unlawfully invested in corporate bonds. In re Farmers' Exchange Bank, 327 Mo. 640, 37 S.W.2d 936, 82 A.L.R. 22; State ex rel. Deckard v. Macom, Mo.App., 186 S.W. 1157; Richardson v. Allen, Mo.App., 185 S.W. 252; Mills v. Smith, Mo.App., 92 S. W.2d 939.

The court erred, however, in charging appellant with interest on the credit of $416.22 taken for loss on the sale of a corporate bond, since he was already charged with interest on the full amount paid for this bond.

The court erred in disallowing the credit of $7.50 taken by appellant for commissions paid on the purchase and sale of a $1,000 Liberty bond. The evidence shows that this bond was purchased prior to June 1, 1931, and was sold shortly thereafter, and such purchase and sale incidentally avoided the payment of taxes on the amount invested in the bond.

Appellant complains of the disallowance of the credits taken by him for maintenance and education of the ward. When and under what circumstances an allowance will be made to a guardian or curator for the support or maintenance of the ward depends very much on the facts of each particular case. It is well-settled law in this state that if the claimant for an allowance for the support of a minor stands in loco parentis and the minor has been reared as a member of the family the allowance will not be made unless it appears that there was an intention or purpose formed at the time to make such charge. Where a guardian or curator standing in loco parentis asserts the right to have an allowance for the support and maintenance of his ward, it devolves on him to show that he intended to make such charge at the time. The burden of proof as to this issue is on the guardian or curator. A prima facie case for the nonallowance of such a charge is...