State ex rel. Hospes v. Branch
| Decision Date | 13 December 1892 |
| Parties | The State ex rel. Hospes, Appellant, v. Branch et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Reversed and remanded.
Valle Reyburn and Jos. S. Laurie for appellant.
(1) The entry contained in the record of the probate court as to the acknowledgment of satisfaction, and the curator's discharge, is not conclusive evidence of payment by the curator of the amount found due at his final settlement. Tidd's Practice, p. 1041; Freeman on Judgments [4 Ed.] sec. 478a; Black on Judgments, sec. 1015; Cohen v Camp, 46 Mo. 179; State ex rel. v. Young, 32 Kan. 292; Stewart v. Armel, 62 Ind. 593; Dane v Holmes, 41 Mich. 661; Beedle v. State ex rel., 62 Ind. 26; Powell v. Powell, 52 Mich. 432; Naugle v. State, 101 Ind. 284; State ex rel. v. Wagers, 47 Mo. 431; State v. Cole, 48 Mo. 70; Lancaster v. Ins. Co., 62 Mo. 121; Ellis v. Smith, 42 Ala. 349; Abbott v. Foote, 146 Mass. 333; Manning v. Manning, 61 Ga. 137; Maynard v. Cleveland, 76 Ga. 52; Carter v. Tice, 120 Ill. 277; Patterson v. Booth, 103 Mo. 402; State ex rel. v. Gray, 106 Mo. 526. (2) The statutory notice of the curator's final settlement was directed to and served upon Alice Crookes, and she was represented at such settlement by attorney. By the terms of the will a trustee should have been appointed for her, to receive such notice and act for her at the final settlement. In the absence of proper notice and a proper representative, such settlement was not final and conclusive. Woerner's Administration, sec. 505, and cases cited. (3) If the order of the probate court discharging the curator has the force and effect of a judgment, still it was competent in this action for plaintiff to show by evidence that said judgment, upon which defendants relied, was obtained by fraud. McClanahan v. West, 100 Mo. 309; Bigelow on Estoppel [5 Ed.] p. 216; Wharton on Evidence [3 Ed.] secs. 797, 1207.
R. S. Macdonald and Edw. C. Kehr for respondent Tittman.
(1) Branch's final settlement of the curatorship of Alice Crookes was made upon full notice to the ward, and her appearance to the same. It, therefore, stands on the footing of every other judgment of a court of competent jurisdiction, and is final and conclusive. Revised Statutes, 1889, secs. 5329, 5330, 5331; State ex rel. v. Leslie, 83 Mo. 60; Garton v. Botts, 73 Mo. 274; State to use v. Hoster, 61 Mo. 544. (2) Under the will of her father, the balance found due Alice Crookes, on final settlement of the curatorship of her estate, was not payable to her, but to her trustee, and the probate court accordingly so ordered. The order of payment is part of the judgment, and is, therefore, also final and conclusive. (3) The statute requires the ward, or the representative of the ward, having received satisfaction, to acknowledge the same of record in the proper court. The court is required to receive proof and determine the fact of satisfaction, and shall thereupon enter a discharge of the curator on the record. The act, therefore, is a judicial act, and, hence, conclusive. Revised Statutes, 1889, sec. 5332; Dunsford v. Brown, 19 S.C. 560. (4) Inasmuch as the records of the probate court show satisfaction of the judgment and discharge of the curator, the entry can be assailed only either by bill in equity, or by motion in the cause itself to set the entry aside. Either form of procedure requires a hearing and a determination of the controverted fact upon proof. Until the entry is set aside in a direct proceeding, it cannot be impeached or controverted. 2 Black on Judgments, secs. 1014, 1016; Chapman v. Blakemann, 31 Kan. 684; Crosby v. Wood, 6 N.Y. 369; Dunsford v. Brown, supra; Taylor v. Deblois, 4 Mason, 131, 133. (5) Branch accepted the trust, and gave bond as trustee. He, therefore, by the most unequivocal acts, made his election to hold the money in his capacity as trustee, and the sureties on his bond as trustee are liable for the same, as this court has decided in Tittman v. Green, 108 Mo. 22.
Joseph Crookes, who died in St. Louis in 1874, left a will whereby he bequeathed a portion of his estate to his daughter Alice, a minor, and appointed Joseph W. Branch (defendant herein) as her curator. Branch qualified in the probate court of the city of St. Louis as the curator of Alice Crookes on April 12, 1875, giving a bond conditioned according to law in the sum of $ 32,000, with R. W. Alexander and R. M. Parks as sureties thereon.
The will further directed that when Alice attained her majority such portion of the estate as was bequeathed to her should be placed and vested in trustees for her sole and separate use.
Branch, as curator, received the interest or share of Alice in her father's estate under the will, and made annual settlements, indicating his receipts and disbursements. Alice attained her majority on February 25, 1883, and at the June term, 1884, of the St. Louis probate court, Branch, having given formal notice to her, filed and presented his final settlement as her curator. Said settlement showed on its face a balance to be paid by him as her curator amounting to $ 20,511.95. The probate court, as shown by its records, formally approved said settlement on July 19, 1884, and after deducting certain costs and expenses ordered the curator to pay over the remaining balance, $ 19,832.15, to Alice Crookes' trustee. Such trustee, however, had not at that date been appointed, and the matter rested in statu quo.
On June 1, 1885, a petition in such behalf having been presented to the circuit court of the city of St. Louis, said Branch was appointed trustee of Alice Crookes in pursuance of the provisions of her father's will, and then and there qualified as such. On the sixteenth day of June, 1885, Branch appeared before the probate court, and filing a receipt (dated June 1, 1885) from himself as curator of Alice Crookes to himself as her trustee, for the balance found to be due from him on his final settlement as curator, to-wit, $ 19,832.15, he in open court, as her trustee, acknowledged payment of said balance to him as trustee.
The receipt is as follows:
Thereupon the following entry was made upon the probate court record:
"Tuesday, June 16, 1885.
,'Curatorship of "Alice Crookes.] Satisfaction acknowledged, and curator discharged.
On the twelfth of March, 1889, this action was instituted in the name of the state to the use of Richard Hospes, trustee of Alice Crookes, and at the relation and to the use of Alice Crookes against Joseph W. Branch as principal and E. C. Tittman, administrator of B. W. Alexander, deceased, and Elizabeth Parks, administratrix of Robert M. Parks, deceased, both of said sureties being dead at the time.
The petition is in usual form, counting upon the conditions of the bond, and alleging as a breach the misappropriation of all the balance found due on the final settlement. Branch made default, and the other defendants, the sureties, pleaded the appointment of Branch as trustee by the circuit court, in pursuance of the will, his receipt as trustee for the estate he held as guardian and his discharge as above set forth. Plaintiffs filed replies denying all the new matter, and requiring strict proof.
On the trial plaintiffs made proof of demand by Hospes the succeeding trustee for the balance shown to be due as curator by the final settlement, a refusal to pay, and rested.
Thereupon defendants put in evidence the final settlement and receipt in full by Branch, and all the proceedings appointing him trustee and his qualification as such and discharge, and rested.
Plaintiffs then recalled Joseph W. Branch, and made the following offer in rebuttal:
Counsel for defendants objected to the question on the ground that the evidence is incompetent and immaterial, and that the entry of satisfaction and discharge in the probate court, given in evidence by defendants, is conclusive and cannot be collaterally attacked; which objection was sustained by the court, to which ruling of the court in sustaining said objection plaintiffs, by their attorney, then and there excepted at the time.
Plaintiff by counsel, then offered to prove by the testimony of witness Branch, that at the time when the entry of satisfaction was made in the probate court, on June 16, 1885, the witness did not have in his hands or under his control any assets belonging to the estate of Alice Crookes; to which testimony so offered defendants objected on the ground that the...
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