Mead v. Bakewell

• Decision Date: 13 April 1880
• Citation: 8 Mo.App. 549
• Parties: IDA B. MEAD ET AL., Appellants, v. ARTHUR T. BAKEWELL, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 549

IDA B. MEAD ET AL., Appellants,

v.ARTHUR T. BAKEWELL, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 13, 1880.

1. An entry of satisfaction and a decree discharging a guardian, made without an examination of his account and without the required notice having been given, is void, and may be set aside at any time.

2. Where a guardian is discharged upon filing an acknowledgment of satisfaction, the ward may, within a reasonable time, move to set the same aside, though after her majority she had appeared to enter satisfaction.

3. An appearance of the ward for the purpose of entering satisfaction is not an appearance to the settlement, and is not a waiver of notice.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

DAVID GOLDSMITH, for the appellants: The settlement was void, because no exhibit of the account was filed and no notice was given.--Wag. Stats. 66, sects. 48, 50; The State v. Hoster, 61 Mo. 544; Winborn v. King, 35 Miss. 157; Robinson v. Steele, 5 Ala. 473; Willis v. Willis, 16 Ala. 656. The appearance of the ward in this case was not a waiver of notice.-- Jacobs v. Fouse, 23 Minn. 51; Scott v. Hull, 14 Ind. 136; Anderson v. Brown, 9 Mo. 638; Smith v. Rollins, 25 Mo. 408; Wade v. Lobdell, 4 Cush. 510.

FINKELNBURG & RASSIEUR, for the respondent, cited: Presbyterian Church v. McIlhenney, 61 Mo. 540.

BAKEWELL, J., delivered the opinion of the court.

On January 18, 1877, the following entry was made on the record of proceedings in the Probate Court of St. Louis:--

“Curatorship of Ida B. Fell--Settlement, Ward 18, and satisfaction.

Now comes Arthur T. Bakewell, curator of Ida B. Fell, and states that his said ward has lately attained the age of eighteen years, and exhibits a settlement of his account as curator, duly verified by affidavit, up to the time of his said ward's majority, upon examination whereof the court finds said account duly balanced, and no balance for or against said curator or said ward. And thereupon also comes said Ida B. Fell, and acknowledges in open court full and entire payment and satisfaction of all moneys or property whatsoever due or coming to her from said Arthur T. Bakewell as her curator.”

On January 18, 1878, Ida B. Fell, together with John A. Mead, her husband, moved the Probate Court to set aside the settlement, acknowledgment, and entry, for error and irregularity, on the ground that Ida B. Fell was married at the date of the entry, and received no notice, and did not acknowledge satisfaction; and because the settlement was not made in conformity with the statutory requirements as to notice, etc.; and because there is no provision of law for any such entry of satisfaction; and because said Ida had not received, and had not since received, all moneys coming to her from her said guardian.

This motion was overruled, and Mead and his wife appealed to the Circuit Court.

At the trial in the Circuit Court it appeared that, at the date of the entry, Ida B. Fell was already married to John A. Mead; that Bakewell did not know this fact; and that, owing to the parties being of a different religion, a second marriage ceremony was performed on February 13, 1877. Bakewell had never given notice, or filed his accounts according to the provisions of the statute for final settlements or guardians. Appellants further offered to prove that Ida had not received from her guardian what was properly coming to her at the date of the entry or since, and that the entry was untrue. This offer was rejected by the trial court, on the ground that the settlement in question was a final settlement and judgment, which could only be set aside by a proceeding for that purpose in equity; and the trial court sustained the action of the Probate Court, and overruled the motion to set aside the settlement.

1. At the date of the revision of 1855, the only provision of the statutes concerning the discharge of the guardian of a resident minor was that contained in the first part of sect. 47 of the act as found in Wagner's Statutes of 1872, p. 681.

This provision is to the effect that wards, having received their property from the guardian, shall, at the expiration of the guardianship, acknowledge satisfaction of record in the Probate Court; and that if, after due notice, this is not done, the court shall enter the discharge and give the guardian a certificate.

In the revision of 1865 additional provisions are found, which remain unchanged, and are to be found (sects. 47-50 of the Guardian Act) in Wagner's Statutes of 1872.

The original provision was amended by a proviso that the court shall not enter the satisfaction therein spoken of until the guardian exhibit the written statement of the ward acknowledging the receipt of all due from the guardian, to be signed by the ward, and if a female ward married, by her husband, and to be acknowledged as in case of deeds.

The additional sections provide: Sect. 48. That when any guardian shall cease to be such, by reason of majority or marriage of his ward, or otherwise, and shall be entitled to his discharge, he must file an exhibit of his account for the purpose of final setttlement, and then give notice of his intention to apply for leave to make settlement and for his discharge. This notice must state time of making application, and must be published as the act provides. Sect. 49. The exhibit must remain on file, for examination of all persons interested, for three months. Sect. 50. At the first term after the expiration of these three months, on proof of notice, the court may hear the application for discharge, and grant or refuse the same; but on such hearing the court must carefully examine the account exhibited for the purpose of final settlement, to correct all errors therein, and proceed to make a final settlement with the guardian on the basis of the exhibited accounts. From this settlement an appeal may be taken.

After careful consideration of these provisions, of the written and oral arguments of counsel, and of the written opinion of the learned judge of the trial court, submitted for our consideration with their brief by counsel for respondent, we are of opinion that the Probate Court has, under the law, no power to enter of...