Noelke v. Jenny

• Decision Date: 08 November 1927
• Docket Number: No. 19954.,19954.
• Parties: NOELKE v. JENNY.
• Court: Missouri Court of Appeals

298 S.W. 1055

NOELKE v. JENNY.

No. 19954.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied November 22, 1927.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Final settlement of F. W. Jenny, guardian of Ida Noelke, late a person of unsound mind, exceptrix, in probate court. On removal to the circuit court, Ida Noelke's exceptions to the settlement were overruled, and she appeals. Affirmed.

H. A. Loevy, of St. Louis, and Jas. Booth, of Pacific, for appellant.

W. L. Cole, of Union, for respondent.

DAUBS, P. J.

In 1922 exceptrix Ida Noelke was, on information filed by her sister, duly declared insane in the probate court of Franklin county. Respondent represented her in that hearing and was appointed guardian and curator. She was ordered confined, which order was carried out. After about two years another sister instituted restoration proceedings for her in the same court. The probate court appointed counsel to represent the guardian in this restoration proceeding. The probate judge held exceptrix to be still insane, a trial by jury followed, resulting in a verdict in favor of restoration of sanity. A partial settlement or settlements having been made by the guardian, he now made a final settlement, or what is termed a "turnover settlement." Thereupon exceptrix on October 5, 1925, filed exceptions to the last settlement. She, the ward, removed the hearing of the circuit court of that county. On November 22, 1926, a trial was had and the circuit court overruled all the exceptions. Exceptrix was then allowed an appeal to this court.

For convenience, we will refer to Mrs. Noelke, the exceptrix, as the ward, wherever reference to her appears.

Counsel for the ward has exhibited great fidelity to his cause in brief and oral argument, but read this recorded proceeding as we will, there is no error or injustice apparent. The issue whether the allowances of certain charges out of the ward's estate by the guardian were proper has been approved by the circuit court.

The first exception reaches the item of $150 for sale of ward's household and kitchen furniture. The probate court duly appointed witnesses and appraisers to accompany and aid the guardian and curator in making inventory and appraisal of the estate, etc. The inventory and appraisement was made, duly filed, and approved. This item of personal property was appraised at $150. There was an application for sale of personal property, comprising store goods and fixtures, but the application does not seem to set out household and kitchen furniture, though the order allowing the sale at appraised value for cash refers directly and definitely to these articles. The clerk of the probate court testified that he could not locate the application for the sale of the "household and kitchen furniture," if one was filed, but the records show a sale at the appraised value of $150, and this sale was duly approved by the probate court. The ward testified (after restoration of course) that she and her husband had paid a larger sum, to wit $1,500, for the lot several years before the guardianship started, and that in her opinion it was worth that amount when sold by respondent. The disinterested appraisers fixed the value at $150 in a lump sum, the guardian sold it for such sum, the probate court approved such amount, and the circuit court refused to allow this exception. We likewise are constrained to rule against the ward in that particular assignment.

Exceptions 2 and 3 are submitted together, and we so treat them. When the ward's mental derangement became apparent, she, or some one for her, sent for her sister, a Mrs. Hueller, to come from her home in Dallas, Tex. Mrs. Hueller came and finally filed the information for a sanity test, and then took the ward's daughter, 17 years old, back with her to her home in Dallas under arrangement with the guardian. He paid the fare of both back to Texas, and paid $50 a month board for the child for the 11 months she boarded at her aunt's home. The guardian also paid $75 tuition for the daughter at a business college and $25 for dental work. The $75 was an adjustment of the tuition at the school at Dallas to take up her studies then in a like school such as she had been attending in the city of St. Louis, where her mother had already sent her. Undoubtedly the respondent deemed it best and cheapest to send the girl to her aunt's home for guidance, care and education. There is coupled in this exception an item of $143.30 paid by respondent to defray expenses of both women to Dallas, Tex. It is said that a single fare to Dallas is between $30 and $40. Some provision could properly be made for other traveling expenses or necessities than the bare railroad fare. It is not contended that the child did not actually receive this benefit other than that the aunt traveled with her. We likewise rule in favor of respondent on these items.

The fourth exception strikes at the payment to the sheriff of Franklin county of $49 for taking...