State ex rel. Wagenmann v. Rosswaag

• Decision Date: 10 July 1876
• Citation: 3 Mo.App. 11
• Parties: THE STATE OF MISSOURI, to use of ALFRED WAGENMANN, Respondent, v. CHARLES ROSSWAAG et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 11

THE STATE OF MISSOURI, to use of ALFRED WAGENMANN, Respondent,

v.CHARLES ROSSWAAG et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jul. 10, 1876.

1. Where a guardian, after his ward becomes of age, makes a settlement with him concerning the ward's estate, which settlement shows an indebtedness of the guardian to the ward, and is filed in, and approved by, the Probate Court, such settlement is an admission of indebtedness on the part of the guardian, and is evidence, but not conclusive, against the guardian's sureties.

2. Where, in such case, the property of the ward is an individual interest in his father's estate, in which dower has not been assigned his mother, no abatement can be made from the rents of such estate on account of the dower, in a suit on a bond of the guardian to the use of the ward.

APPEAL from St. Louis Circuit Court.

Affirmed.

F. & E. L. Gottschalk and Finkelnburg & Rassieur, for appellants, cited: Wag. Stat. 538, secs. 48, 49; Co. Lit. 124 b; Laws N. J. 1709-1868; Nixon's Dig., 4th Am. ed., 250, secs. 1-3; Skouten v. Wood, 57 Mo. 382; McLaughlin v. McLaughlin, 12 N. J. Eq. 505-509; Perine's Exrs. v. Perine, 35 Ala. 644; Walker's Code Ala. 1867, p. 374, sec. 1630; Picot v. O'Fallon, 35 Mo. 29; Lewis v. Williams' Admr., 54 Mo. 200; Gamble v. Gibson, 59 Mo. 586; The State ex rel. v. Langford, 55 Mo. 564; Jones v. The State, 14 Ark. 170; 37 Penn. 60, 61; 1 Root, 51; 21 Ark. 447; 3 McCord, 237; 8 Ala. 781; 5 Binn. 184; 5 Mass. 7; 2 Hill, 313; 2 Blackf. 26.

Slayback & Haeussler, for respondent, cited: Glenn v. Fields, 53 Mo. 475; Haygood v. McKoon, 49 Mo. 78; Tourville v. Boland, 23 Mo. 95; Mitchell v. Williams, 27 Mo. 399; Finney v. The State to use, 9 Mo. 231.

GANTT, P. J., delivered the opinion of the court.

This was an action on the bond of Rosswaag as curator of Alfred Wagenmann, to whose use plaintiff sues. The petition alleged that Rosswaag was duly appointed curator of Alfred Wagenmann, and executed his bond with sureties, etc., conditioned for the faithful performance of his duties as curator; that Alfred Wagenmann became of age, and Rosswaag made final settlement as guardian, by which it was found that $2,833.47 was due to his late ward, and on his refusal to pay this sum this suit was brought.

Rosswaag made default. The other defendants, who were his sureties, denied that Rosswaag made a final settlement, but admitted that he filed a memorandum in the Probate Court whereby it would appear that the sum claimed was due, but averred that this admission was made by a fraudulent combination between Rosswaag and his ward, for the purpose of defrauding the sureties, defendants; that Rosswaag was insolvent; and they prayed that the account might be opened and adjusted according to right and equity. The new matter in the answer was denied by a reply.

The cause was referred to a referee, who examined the account, took a mass of testimony, and ascertained a balance of $1,820.99 in favor of Alfred Wagenmann. The testimony was reported, exceptions were filed to the referee's report, and overruled, and judgment was given on the report. After saving all exceptions, defendants brought the case here by appeal. The suit was brought on March 20, 1874; was determined on January 18, 1875, in the Circuit Court at special term, and on April 2, 1875, by the court at general term.

The referee's report finds that Rosswaag was appointed curator of Alfred Wagenmann in the year 1861, when the latter was nine years old, and continued such curator until Wagenmann attained his majority; that in March, 1874, he made a final settlement of his accounts as such curator, whereby it appeared that he was chargeable with $2,833.47, which settlement was approved by the St. Louis Probate Court, and filed; that Rosswaag failed to pay this balance; that, in making up the account, Rosswaag, at the request of Wagenmann, charged himself with divers large sums of money which did not belong to the estate of Wagenmann, and for which Rosswaag was not accountable as curator, but Rosswaag did not fail, in said settlement, to credit himself for all money wherefor he was entitled to credit against his ward; that said charges were not made fraudulently, but mistakenly; that the account should be opened as to the said sureties, and accordingly he states the account. In this he charges Rosswaag with the interest of Alfred Wagenmann in the rents of certain real estate belonging to Henry Wagenmann, his father. Rosswaag had administered on Henry Wagenmann's estate, and married his widow. He partially settled, as administrator, for these rents and profits, at the September term, 1866. From that time until March, 1874, the portion of said rents accruing to Alfred Wagenmann and received by Rosswaag, and not accounted for, was $1,013.90. The referee also found that Rosswaag had collected, between 1861 and 1866, certain rents of the same property, for which he had not accounted either as administrator or curator, the portion whereof accruing to Alfred was $320.66; that, when he made his final settlement as administrator, Rosswaag had in his hands two notes of Carl Hildebrand in favor of Henry Wagenmann, one dated April 17, 1858, for $500, and another for $75, both due in twelve months, with 10 per cent. interest; also one note of Adolph Hildebrand for $800, dated January 20, 1859, payable in twelve months, with 10 per cent. interest, and that Rosswaag charged himself with the principal of said notes; that he thereafter actually received, as interest thereon, the additional sum of $1,031.25, one-third of which accrued to Alfred Wagenmann, making $343.75 which has never been accounted for by Rosswaag. These sums--the sum of $135 taxes refunded by a lessee of the real estate, and $84.47 wherewith Rosswaag was chargeable as curator, as appears by an account filed March, 1863--made up a sum of $1,820.99, for which the referee recommended that judgment should be given against him in favor of Alfred Wagenmann.

The referee further reported that Henry Wagenmann, father of Alfred, had as his mansion-house No. 2406 Franklin avenue; that he left a widow and three children; that after his death the widow and children resided at this house; that, in 1861, she (the widow) married Rosswaag, and that she continued to live there after said marriage until the present time; that she has never had dower assigned to her in the estate of Henry Wagenmann; that the whole of the premises was not occupied by her, but she rented out parts of it both before and after her marriage, and Rosswaag, after the marriage, received large sums of money for the rent thereof, wherewith he charged himself in his final settlement as curator of Alfred; that Rosswaag was not accountable on his bond as curator for these rents, and that his charging himself therewith was a fraud in law on his sureties; that Rosswaag charged himself, in his final settlement with Alfred in 1874, with interest on Hildebrand's note, that accrued prior to September, 1866, and such charge was in like manner fraudulent as to his sureties.

The referee further reports that he made no abatement of the rents charged against Rosswaag on account of the dower of the widow, because that dower had not been assigned; also that in pursuit of equity he has omitted to charge Rosswaag with interest on the yearly rents, etc.; that Rosswaag is insolvent; that, in his settlements with Alfred and the other children of his wife (the three cases were consolidated and tried together), Rosswaag charged himself, or professed to charge himself, with all the rents received by him from the real estate of Henry Wagenmann, including the mansion-house, and that, deducting therefrom $818, for which he had accounted as administrator, he deducted from the remainder the sum of $3,406.33, being one-third thereof, as due to the widow of Henry Wagenmann as dowress, and also $1,900.29, for which he had accounted in his prior settlement as curator. But the referee saw fit to state the account as above shown.

To this report the sureties filed exceptions as follows:

1. Because the referee excluded proper, and admitted improper, evidence.

2. Because the referee refused to declare the legal propositions claimed by the sureties.

3. Because the referee did not allow dower to the widow.

4. Because of the allowance of anything on the notes of Hildebrand.

5. Because the referee erred in going behind and opening the settlements made by Rosswaag as administrator.

6. Because the referee erred in refusing to hear testimony relative to proper charges against plaintiff by his curator.

7. Because the finding of the referee is against law and evidence.

8. Because the referee erred in admitting the final settlement of Rosswaag as conclusive evidence.

We will consider these points in their order, taking as the specifications of the several heads of exception what was urged orally at the hearing, and what is stated in the printed and written arguments of appellants.

1. The averment of the admission of improper evidence is supposed to be established by the fact that the referee admitted the settlement made by Rosswaag in 1874, called a final settlement. Appellants contend that this paper was not admissible for any purpose, or to any degree, and they claim that the referee not only admitted it as evidence, but treated it as conclusive.

We do not think the referee treated this paper as conclusive evidence. He has certified to the contrary, and has liberated the sureties from several of the particular sums with which Rosswaag charged himself in making up the balance of...