State ex rel. Williams v. Carroll

• Decision Date: 31 October 1876
• Citation: 63 Mo. 156
• Parties: STATE ex rel. W. J. WILLIAMS, CURATOR, &C., Plaintiff in Error, v. DANIEL CARROLL, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 156

STATE ex rel. W. J. WILLIAMS, CURATOR, &C., Plaintiff in Error,

v.DANIEL CARROLL, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Osage Circuit Court.

Lay & Belch, for Plaintiff in Error.

Henry Flanagan, for Defendants in Error.

I. The petition must show how the plaintiff is guardian; if appointed by a court exercising probate jurisdiction, the name of the court, and the county in which it exercises its functions, should be stated. (Stanley vs. Chappell, 8 Cow. 235; State, &c., vs. Matson, 38 Mo. 489; Higgins vs. Hannibal & St. Joseph R. R. Co., 36 Mo. 418.)

II. The petition does not show that the alleged ward is a minor. (Stanley vs. Chappell, 8 Cow. supra; Higgins vs. Hannibal & St. Joseph R. R. Co., 36 Mo. 418, supra.)

III. The petition fails to show how Carroll ceased to be curator, or that there was a vacancy in the office. If he resigned, or was removed, that fact ought to be properly alleged. (1 Wagn. Stat. p. 675, § 22.) The petition alleges that Carroll was discharged; from which it may be presumed that his ward had arrived at full age, and that under §§ 48, 49, 50, 51 (Wagn. Stat. p. 681), the curator having made a final settlement, was discharged from his trust. If the ward was of full age then, that is, when the settlement was made, he alone can bring the action. Nor does the petition show when the plaintiff became curator.

WAGNER, Judge, delivered the opinion of the court.

The court sustained a demurrer to the petition, and the plaintiff refused to amend and sued out his writ of error. The petition averred that on the 24th day of April, 1870, Daniel Carroll was duly appointed guardian and curator of the estate of James C. Williams, a minor heir of Geo. A. Williams, deceased, in conformity to law in such cases made and provided, and that he executed his bond as principal, with John A. Bowen and Will. J. Knott, as sureties, to the State of Missouri in the sum of $600, conditioned that the said Daniel Carroll, principal therein, should, as such guardian of the person and curator of the estate of said James C. Williams, minor heir of Geo. A. Williams, faithfully discharge his duties as such guardian and curator according to law.

It is further stated that said Daniel Carroll, on the 22nd day of July, 1872, made a settlement of the estate of said minor; that said settlement was approved by the county court of Osage county, which court, then and there, had jurisdiction of the same; and that it was found that there was in the hands of the curator, belonging to the estate of said minor, the sum of $617.23; that said Carroll was discharged from the office, and the said W. J. Williams, was duly appointed curator of the estate of said minor, and having duly qualified and entered upon the duties of the office, said Carroll was ordered and directed, according to law, to pay over and deliver all the money, goods and estate whatsoever, belonging to said minor, to said Williams; that said Williams demanded said estate, and that said Carroll failed and refused to deliver the same. Breaches were then assigned and judgment demanded.

The grounds assigned in the demurrer were: first,...