Smith v. Young

• Decision Date: 04 November 1913
• Citation: 177 Mo. App. 482,160 S.W. 822
• Parties: SMITH v. YOUNG.
• Court: Missouri Court of Appeals

160 S.W. 822

177 Mo. App. 482

SMITH v. YOUNG.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. GUARDIAN AND WARD (§ 25) — REMOVAL OF GUARDIAN.

That all the sureties on an administrator's bond were attorneys at law will not invalidate the bond, and hence will not warrant his removal from the position of curator of the estate of the minor child of his intestate.

2. GUARDIAN AND WARD (§ 25)—CURATORS— GROUND FOR REMOVAL.

Where defendant, who administered the estate of a minor's father, and was appointed curator of the minor's property, made expenditures for attorney's fees to protect the decedent's interests in Arkansas, that fact is no ground for his removal, where the disbursements were made in the interests of the estate, and the allowances were not open to attack.

3. GUARDIAN AND WARD (§ 25)—MISCONDUCT.

Where defendant, who administered the estate of a minor's father, and then was appointed curator of the minor's estate, did not contest the father's liability on certain notes which the latter had indorsed, it appearing that the maker was insolvent, and that defendant, with the consent and on the advice of the probate court, bid in the land mortgaged to secure the payment of the notes, and took title in himself, he was not guilty of such misconduct as administrator warranting his removal as curator.

4. EXECUTORS AND ADMINISTRATORS (§ 89)— POWER OF PROBATE COURT.

Under the direct provisions of Rev. St. 1909, § 240, the probate court may give an administrator credit upon debts which it is convinced are uncollectible.

5. GUARDIAN AND WARD (§ 25)—CURATOR— GROUND FOR REMOVAL.

Where the administrator of a decedent's estate was appointed curator of the estate of decedent's minor daughter, it is no ground for his removal that he failed to publish or serve notice of distribution, and to request the appointment of a guardian ad litem or other person to represent the minor, who was the sole distributee, but made final settlement as administrator with himself as curator, where there was no showing that he was actuated by improper motives, or that there was a failure to account for any of the property.

6. GUARDIAN AND WARD (§ 25)—CURATORS— GROUNDS FOR REMOVAL.

The court, in its discretion, may refuse to remove a curator who has failed to make a true inventory and appraisal of the estate of his ward as required by the statute, where it appeared that the estate had been fully inventoried shortly before by a former curator, and that the latter had accounted for all of the property as inventoried.

7. GUARDIAN AND WARD (§ 25)—CURATORS— REMOVAL—DISCRETION OF COURT.

Where it did not appear that a curator had wasted his ward's estate, or was guilty of mismanagement, but instead that the estate had increased in his hands, the court may, by virtue of the discretion given by Rev. St. 1909, § 444, refuse to remove him for failure to make reports as to moneys of his ward on hand in accordance with that statute.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Proceeding by Charles H. Smith for the removal of William R. Young, curator of the estate of Etta Louise Jackson. From a judgment denying the removal, plaintiff appeals. Affirmed.

Jones, Hocker, Hawes & Angert and J. Lionberger Davis, all of St. Louis, for appellant. R. H. Norton and Avery & Young, all of Troy, for respondent.

ALLEN, J.

This is an appeal from the judgment of the circuit court of Lincoln county in a proceeding instituted for the purpose of removing the respondent as curator of the estate of one Etta Louise Jackson, a minor under the age of 14 years. The proceeding was begun in the probate court of said county by the appellant, the grandfather of said minor, and who, it seems, had adopted her. In his petition filed herein the appellant made affidavit that the judge of said probate court was a material witness, and for this reason the cause was certified to the circuit court in accordance with the provisions of section 4063, Rev. Stat. 1909. The judgment of the circuit court was in favor of the curator, and the petitioner appeals.

In 1904 William A. Jackson, the father of Etta Louise Jackson, died testate. Letters testamentary upon his estate were granted to James A. Jackson, who was also appointed curator of the estate of said Etta Louise Jackson, the minor child of William A. Jackson; the mother of said minor having died previously. On December 31, 1904, said James A. Jackson, as executor, filed his inventory of the Wm. A. Jackson estate, and also his inventory, as curator, of the estate of the said minor child. On January 20, 1905, James A. Jackson died, and on February 19, 1905, the respondent, William R. Young, then the public administrator of Lincoln county, was by the probate court of said county placed in charge of the estate of said Wm. A. Jackson, deceased, and was on February 23, 1905, also appointed curator of the estate of said minor.

Respondent administered upon the father's estate, and filed his final settlement thereof, which was approved on February 4, 1909, and the respondent was ordered to distribute the balance in his hands, to wit, $4,681.72, to the said Etta Louise Jackson, the sole distributee. This balance was receipted for by the respondent as curator of the estate of said minor, and respondent was thereupon discharged as such administrator.

It is now sought to remove respondent as curator upon the ground, as is alleged, that he is "incapable and unsuitable to execute the trust reposed in him, and has failed to discharge his official duties as administrator of the estate of said Wm. A. Jackson, and as curator of the estate of said Etta Louise Jackson, has wasted and mismanaged said estates, and has failed to account for moneys and property which came into his hands as administrator and curator" in the particulars which appellant alleges in his petition.

The learned circuit judge heard the evidence respecting the various charges against the respondent, and found that they were not sustained by the evidence. And the court found, "upon an examination of the curatorship of said minor by said Wm. R. Young, that the property of said minor in his hands as curator and her interests therein have been fully protected, and that the said Wm. R. Young is a capable and suitable person to execute the trust reposed in him by the probate court of Lincoln county, Missouri, appointing him as said curator." It was thereupon ordered and adjudged by the court that the appellant's petition be dismissed, from which judgment, this appeal is prosecuted.

The petition contains 14 charges against respondent. They pertain to respondent's administration of the father's estate, as well as to the curatorship. The petition proceeds in part upon the theory that respondent failed to properly account in his capacity as administrator for money to which his ward was entitled as distributee; that he may be charged therewith as curator (see In re Wood Estate, 71 Mo. 623); that he is subject to removal therefor; and that his alleged misconduct as administrator shows that he is an unfit person to act as curator. How far he can be here assailed for his acts as administrator, we do not decide, but will consider the charges seriatim.

The first charge is that, as administrator of the father's estate, respondent failed to give a proper bond as required by the statute, in that the sureties thereon were attorneys at law. This point is purely technical, and not well taken, since in any event the bond is not invalidated, but remains in full force and effect. See State ex rel. v. Findley, 101 Mo. 368, 14 S. W. 111.

The second...