State ex rel. Calvert v. Detroit Fidelity & Sur. Co.

• Citation: 42 S.W.2d 966,226 Mo.App. 148
• Parties: STATE OF MISSOURI EX REL. L. O. CALVERT, PUBLIC ADMINISTRATOR, AND EX OFFICIO PUBLIC GUARDIAN AND AS SUCH HAVING CHARGE OF THE ESTATE OF GEORGE ELMO BRICE, A MINOR, RESPONDENT, v. DETROIT FIDELITY & SURETY COMPANY, APPELLANT
• Decision Date: 03 November 1931
• Court: Court of Appeal of Missouri (US)

42 S.W.2d 966

226 Mo.App. 148

STATE OF MISSOURI EX REL. L. O. CALVERT, PUBLIC ADMINISTRATOR, AND EX OFFICIO PUBLIC GUARDIAN AND AS SUCH HAVING CHARGE OF THE ESTATE OF GEORGE ELMO BRICE, A MINOR, RESPONDENT, v. DETROIT FIDELITY & SURETY COMPANY, APPELLANT

Court of Appeals of Missouri, St. Louis

November 3, 1931

Appeal from the Circuit Court of Pike County.--Hon. Edgar B Woodfolk, Judge.

AFFIRMED.

Judgment affirmed.

Davis Benning and Andrew J. Murphy, Jr. for appellant.

J. E Thompson and Hostetter & Haley for respondent.

A compliance with the provisions of Section 435, R. S. 1929, is not a condition precedent to the maintenance of a suit on a deceased curator's bond. State v. Guaranty Company, 188 Mo.App. 700, 176 S.W. 542; State To Use v. Grace, 26 Mo. 87; State ex rel. v. Berger, 92 Mo.App. 631; State ex rel. Hatton v. Am. Surety Co., 217 S.W. 855.

HAID P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

--This is an appeal from a judgment against the surety upon the bond of a deceased guardian and curator.

On and prior to March 5, 1927, Stephen D. Steele was the duly and legally appointed and acting guardian and curator of the estate of George Elmo Brice, a minor, by virtue of an appointment made by the probate court of Pike County, Missouri. On March 5, 1927, he filed a surety bond with himself as principal and the Detroit Fidelity & Surety Company as surety, which bond was approved by the probate court on March 10, 1927. Stephen D. Steele was the owner of a farm consisting of 240 acres located near Frankford, Missouri, described in the record, which was subject to a note and deed of trust held by Walter Beavers, upon which, with interest, there was due the sum of fifteen hundred forty-seven and 25-100 dollars ($ 1547.25). On April 2, 1928, Mr. Steele, as curator, issued and delivered to W. N. Shaw, a check for eighteen hundred dollars ($ 1800) and on the same day W. N. Shaw issued and delivered to S.D. Steele a check for eighteen hundred dollars ($ 1800). Under the same date Stephen D. Steele and wife executed a warranty deed to W. N. Shaw to eighty acres of the 240 acre farm and took back from W. N. Shaw a deed of trust for eighteen hundred dollars ($ 1800) on such eighty acres and Stephen D. Steele executed and delivered to Walter Beavers a check for eighteen hundred dollars ($ 1800), of which the latter received fifteen hundred forty-seven and 25-100 dollars ($ 1547.25) in payment of the balance of the mortgage debt and interest upon the 240 acres of land and such mortgage, held by Walter Beavers, was released of record so that the farm, so far as the record discloses, was thereafter subject only to the deed of trust for eighteen hundred dollars ($ 1800) upon the eighty acres described in such mortgage and leaving the balance of the 240 acres clear of encumbrance.

Stephen D. Steele, the curator, died November 22, 1928, and he was succeeded by the plaintiff who was the Public Administrator. After the death of Stephen D. Steele, his widow, Mrs. Margaret D. Steele, was appointed administratrix of his estate. On January 22, 1929, the administratrix of the estate of Stephen D. Steele reported to the probate court that she had in her possession certain personal property belonging to the estate of the minor, among other property being the eighteen hundred dollar note referred to and the deed of trust securing the same, and stating her readiness and willingness to deliver said property to the Public Administrator when ordered so to do by the probate court.

On the same day, January 22, 1929, the probate court directed the administratrix to turn over to the successor curator all of the personal property belonging to the estate of said minor. On May 13, 1929, the public administrator having filed a petition setting out a default in the payment of the first year's interest upon the note for eighteen hundred dollars ($ 1800), asked leave to and was authorized to bid in the property at the public sale to be held and in fact did attend the sale and purchased the property for the sum of five hundred dollars ($ 500). The cost of the sale was seven and 50-100 dollars ($ 7.50), leaving a net amount of four hundred ninety-two dollars and fifty cents ($ 492.50) realized for the benefit of the minor by reason of the foreclosure.

The witness who prepared the warranty deed to Shaw and the deed of trust from Shaw to Steele, curator, on cross-examination testified that he considered the eighty acres worth, in 1928, twenty-five to thirty dollars an acre. Three other witnesses testified that the eighty acres were worth, in 1928, six to eight dollars an acre.

It was admitted that at the time of the trial W. N. Shaw had no property.

There are many other facts shown by the record but the foregoing statement we regard as sufficient to present the questions raised on the appeal.

Defendant has raised several questions here, the first one being that the court should have sustained its instruction in the nature of a demurrer to the evidence at the close of the case.

The defendant contends that the administratrix of the estate of the deceased guardian made a final settlement for such guardian which became a final and binding judgment of the probate court barring any action on the bond until that settlement shall have been set aside by a direct proceeding in the proper court.

We think there can be no doubt that when a final settlement of an administrator or of a guardian or curator is made in accordance with the statutes, such settlement has the force and effect of a final judgment, binding upon all the parties interested and may only be set aside for the same reasons and at the same time and manner applicable to other judgments of courts of record. [Wyatt v. Wilhite, 192 Mo.App. 551, 183 S.W. 1107; Patterson v. Booth, 103 Mo. 402, 15 S.W. 543; State ex rel. v. Roland & Lehman, 23 Mo. 95; Woodworth v. Woodworth, 70 Mo. 601; State ex rel. v. Leslie et al., 83 Mo. 60; State ex rel. v. Hoshaw, 86 Mo. 193.]

Is the settlement made by the administratrix in this instance a final one? Section 430, Revised Statutes of Missouri, 1929, prescribes the method for making such settlement and the steps directed to be taken by that section of the statutes are essential to constitute a settlement a final one. [State ex rel. v. Hoster, 61 Mo. 544; May v. May, 189 Mo. 485, 88 S.W. 75.]

Settlements not made in accordance with the statute are mere exhibits of the guardian's account, and they are in no sense judgments. [Myers v. Myers, 98 Mo. 262, 11 S.W. 617; State ex rel. v. Rosswaag, 3 Mo.App. 11; State ex rel. v. Hardy, 200 Mo.App. 405, 206 S.W. 904; State ex rel. v. Hoster et al., 61 Mo. 544 at 546.]

In the present case the administratrix simply filed a petition in the Probate Court stating she had in her possession as Administratrix of the deceased guardian's estate certain personal property belonging to the estate of the...