State ex rel. Smith v. Paul's Ex'r

• Decision Date: 31 March 1855
• Citation: 21 Mo. 51
• Parties: THE STATE, TO THE USE OF SMITH, Respondent, v. PAUL'S EXECUTOR, Appellant.
• Court: Missouri Supreme Court

21 Mo. 51

THE STATE, TO THE USE OF SMITH, Respondent,

v.PAUL'S EXECUTOR, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. A county or probate court has jurisdiction of a demand against the estate of a decedent, founded upon a bond with a collateral condition.

2. The security in a curator's bond in force at the date of his final settlement, is prima facie liable for the amount thereby shown to be in his hands, although received before the bond was given. To render the security in a former bond liable, it must be shown that the money was converted during the period covered by that bond.

Appeal from St. Louis Circuit Court.

This was a demand presented in the St. Louis Probate Court for allowance against the estate of Rene Paul, deceased, founded upon alleged breaches of a bond for $4000, executed to the state of Missouri, by said Paul as security, on the 16th of March, 1844, conditioned for the faithful discharge by Frederick W. Beckwith of his duties as curator of Philomena Smith, a minor. This action was brought to the use of Philomena Smith, by Henry Chouteau, her guardian. The breaches assigned were: 1st. That between the 16th of March, 1844, and September, 1851, the sum of $8000 came into Beckwith's hands as such curator, which he failed to account for, or pay over, as required by law, and as demanded by Chouteau, her guardian. 2d. That said Beckwith kept no separate account of the money received by him as curator, but mixed the same with his own, and converted it to his own use. 3d. That he failed to put such money out at interest upon mortgage or other sufficient security, as by law he should have done. 4th. That he did not make annual settlements of his accounts as such curator. 5th. That in March, 1851, he converted to his own use certain bonds of the city of St. Louis which came to his hands as such curator. 6th. That at his settlement in June, 1850, there was a balance in his hands of $5049 51, which he converted to his own use. 7th. That in September, 1851, he sold and converted to his own use certain bonds of the city of St. Louis which came to his hands as curator. 8th. That he did not put out at interest the balance which was in his hands at his settlement in June, 1850. 9th. That on the 28th of June, 1851, he was ordered to pay over to Henry Chouteau, as guardian of the person of Philomena Smith, the sum of $500, which he failed to pay.

A motion to dismiss for want of jurisdiction was made in the Probate Court and renewed in the Circuit Court, but in both instances overruled.

At the trial in the Circuit Court, the plaintiff offered in evidence the record of the appointment of Beckwith, as curator of Philomena Smith, on the 8th of March, 1843, and the bond sued upon. He then offered the record of the annual settlements of Beckwith, as curator, from 1844 to 1850 inclusive. This last was objected to, because it was not a complete record, and did not contain all the settlements made by said Beckwith, as such curator. The objection was overruled, and the record permitted to be read in evidence. Each of these settlements showed a balance in the hands of the curator, and the settlement of 1850 showed a balance in his hands of $5049 52. It was admitted that Beckwith made no settlement in 1851. The plaintiff also read in evidence a record of the appointment of Henry Chouteau as guardian of the person and estate of Philomena Smith on the 12th of April, 1852; also the order of the Probate Court at the June term, 1851, requiring the curator to pay $500 to Chouteau, as guardian of the person of Philomena Smith. It was proved that a copy of this order was served on Beckwith, the curator, on the 12th of September, 1851, and a demand made for the money.

The defendant, on his part, offered in evidence a record of the final settlement of Beckwith, as curator, in June, 1852, showing a balance in his hands of $5561 84, and an order by the Probate Court to pay the same to Henry Chouteau, guardian; also a bond executed by Beckwith, as principal, and Louis C. Smith, as security, dated September 19th, 1851, conditioned for the faithful discharge by Beckwith of his duties as curator. It was admitted that Rene Paul died in May, 1851.

The court gave the following instruction asked by the plaintiff, to which the defendant excepted:

“If the jury find that Beckwith, in June, 1850, was indebted to his ward, Philomena Smith, in the sum of $5049 51; that said Beckwith failed to make a settlement in the Probate Court, at the June term, 1851, and failed to pay the $500 ordered by the Probate Court at the June term, 1851, after the same was demanded, and that Paul was his security at that time, the jury ought to find for the plaintiff the amount of such indebtedness, not exceeding $4000, unless the defendant has shown to the satisfaction of the jury that Beckwith, at the date of the bond executed in 1851, had still in his hands the amount of funds belonging to his ward; and the final settlement made in June, 1852, read in evidence, is insufficient for that purpose.”

There was a verdict for the plaintiff for $4000.

Cline & Jamison, for appellant.

1. The Probate Court has only jurisdiction of an action on a curator's bond where the court has ordered the curator to pay, and in such case, the proceeding must be by scire facias. (Sess. Acts of 1850-51, p. 211, § 11. R. C. 1845, tit. Administration, art. 5, §§ 11, 12, 13 and 14.) The Probate Court cannot render a judgment on a penal bond, for, in such case, the judgment is for the amount of the penalty, with leave to take out execution for the amount of damages sustained. 2. The court below erred in admitting in evidence the certified copy of the accounts and settlements of F. W. Beckwith, as curator, because it did not contain all the accounts and settlements made by him, and was not a full and complete transcript of the record. 3. The instruction given was erroneous. It required the defendant to prove that the curator did not convert to his own use the balance in his hands at his settlement in June, 1850, whereas it was incumbent on the plaintiff to prove that he did convert it. (17 Mo. Rep. 431.) The final settlement of the curator, made at the June term, 1852, showed a balance against him of $5561 84, (in which was included the balance on hand at the June term, 1850.) The curator was only bound to pay the money in his hands belonging to his ward, when ordered by the Probate Court, and, until then, there was no breach of the bond; and there was no order to pay until the final settlement at the June term, 1852, at...