State ex rel. Smith v. Leslie

• Decision Date: 31 October 1884
• Citation: 83 Mo. 60
• Parties: STATE EX REL. SMITH, Curator, Plaintiff in Error, v. LESLIE et al.
• Court: Missouri Supreme Court

83 Mo. 60

STATE EX REL. SMITH, Curator, Plaintiff in Error,

v.LESLIE et al.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Webster Circuit Court.--HON. R. W. FYAN, Judge.

REVERSED.

John A. Patterson and C. B. McAfee for plaintiff in error.

(1) No objection was made in the lower court to the petition, either by demurrer, answer or otherwise. (2) The final settlement was fraudulent and should be set aside. In his settlement with Bigger, Leslie was acting for his own interest and not for his ward, a course inconsistent with his duties. White v. Parker, 8 Barb. 48; Williams on Executors, p. 449; Reeves Dom. Relations, 325 et seq.

Smith & Krauthoff for defendants in error.

There is no properly authenticated bill of exceptions in this case. Fulkerson v. Houts, 55 Mo. 302; Pope v. Thomson, 66 Mo. 661; Lumber Co. v. Howard, 76 Mo. 517; Carter v. Prior, 78 Mo. 222. The final settlement was a complete bar to the action at law stated in the second count. State v. Roland, 23 Mo. 95; Mitchell v. Williams, 27 Mo. 399. Upon the first count plaintiff could only recover on proof of fraud, and this the evidence fails to show. Brent v. Grace, 30 Mo. 253; Lovell v. Minot, 20 Pick. 116; White v. Parker, 8 Barb. 48; Fletcher v. Fletcher, 29 Vt. 98.

HENRY, J.

This suit was instituted against A. H. Leslie, and Butts and Graham as his sureties, in a curator's bond and against Bigger successor of Leslie, as curator of the estate of Geo. S. Welch. Relator is the successor of Bigger as curator of said estate. The petition contained two counts, one an action at law on the bond of Leslie on which the court properly found for defendants, because Leslie, as guardian, had made a final settlement, which at law is conclusive upon the ward. Mitchell v. Williams, 27 Mo. 399; State to use of Tourville v. Roland, 23 Mo. 95.

The other count charged that in the year 1876, Bigger being insolvent and largely indebted to Leslie, the two conspired to defraud said ward and agreed that Leslie should resign his said curatorship and that Bigger should be appointed in his stead. That Leslie should be one of Bigger's sureties in his bond, and that upon a settlement by said Leslie of his curatorship with Bigger as his successor, the latter should take as the assets of the estate of said ward, his, Bigger's, note to Leslie, and receipt to Leslie for the amount as so much money paid by Leslie to him as his successor. That this arrangement between them was carried out, except that Leslie did not become one of Bigger's sureties on said bond. That the bond executed by Bigger and his sureties was and is worthless, he and they then being and still are insolvent. That the sum of $2000 in money and other property came into the hands of Leslie as curator of the ward's estate. That the probate court approved the final settlement of said Leslie containing said fraudulent receipt in ignorance of the transaction between him and his successor and prays that said settlement be set aside and for general relief.

There was a trial which resulted in a verdict and judgment for defendants, from which this appeal is prosecuted. Bigger testified for plaintiff substantially to the facts alleged in the petition, except as to a prior agreement or conspiracy between him and Leslie. That Leslie turned over to him as his successor, his, Bigger's, own note to Leslie, for $1200, with about one year's interest and $13 in cash. The note and $13 was all he ever turned over to him. That Leslie promised to go on his bond, but after Bigger was appointed refused to do so. Leslie, called by plaintiff, also, testified, that Bigger owed him $1200, secured by deed of trust on land, for which the note was given by Bigger. That this land transaction had nothing to do with Leslie's curatorship. That the land was his own. He considered the note good and it was well secured. That he turned this note over to Bigger and paid him $13, the balance owing by him to the estate of his ward. That he never promised to go on Bigger's bond. Admitted that, after turning the note over to the payor thereof, Bigger, he duly acknowledged satisfaction of the mortgage securing said note. Further testified that Bigger's bond as curator was good when it was executed. The receipt executed by Bigger to Leslie was as follows:

“$1344.40.

MARSHFIELD, Mo., Sept. 15, 1876.

Received of A. H. Leslie, curator of the estate of George S. Welch, thirteen hundred and forty-four dollars and forty cents, the amount due from him as said curator.

N. H. BIGGER.”

Mrs. Welch, mother of George S. Welch, testified that Leslie told her he would go on Bigger's bond. This was all the evidence bearing on the issues made on the first or equity count of the petition. And the question arises on these facts, whether Leslie and his sureties can shield themselves behind his final settlement. “The guardian's trust is one of obligation and duty and not one of speculation and profit.” Schouler's Dom. Rel., sec. 341. “Chancery treats with suspicion all acts and circumstances evincing a disposition on the part of the guardian to derive undue advantage from his...