State v. Allen

• Decision Date: 10 August 1920
• Docket Number: No. 2658.,2658.
• Parties: STATE ex rel. RICHARDSON v. ALLEN et al.
• Court: Missouri Court of Appeals

224 S.W. 11

STATE ex rel. RICHARDSON v. ALLEN et al.

No. 2658.

Springfield Court of Appeals. Missouri.

August 10, 1920.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Suit by the State of Missouri, on the relation of Caleb B. Richardson, guardian of the person and estate of Banks M. Burrow, an insane person, against Lewis L. Allen and another. Judgment for plaintiff, and defendants appeal. Reversed.

W. Cloud, of Pierce City, for appellants.

Theodore Alvord, of Pierce City, for respondent.

STURGIS, P.

This is a suit on the bond of the guardian, Allen, of an insane person, Banks M. Burrow, the other defendant, Stark, being a surety on such bond. Allen had acted as guardian of Burrow for a number of years and resigned as such in November, 1913. The relator, Richardson, was in January, 1914, appointed guardian of such insane person as Allen's successor. Thereupon Allen filed and exhibited his account in such estate for final settlement. Among other things, this settlement showed that Allen had loaned various sums of money belonging to the estate to various parties taking notes therefor and these notes were listed as assets of the estate. Among such notes is one for $325, signed by one Bennett, which is the basis for this action; it being alleged as a breach of Allen's bond that such note is worthless, and that the guardian, Allen, violated the law in loaning such money without real estate security, as required by sections 444 and 533, R. S. 1909. The relator, as guardian of Banks M. Burrow, insane, filed exceptions to the proposed settlement of Allen, the resigned guardian, in the probate court. Such exceptions were there heard, and on appeal to this court a judgment was directed sustaining part of the exceptions and overruling others. Richardson v. Allen, 185 S. W. 252. The exceptions so filed did not in any way question or involve this note. On the case again reaching the probate court the resigned guardian, Allen, conforming to the rulings of this court and of the circuit court, filed what he termed a supplemental final report. That report again contained the note now in question as part of the assets of the estate. This report proved satisfactory, or at least same was approved by the probate court. The relator, as guardian de bonis non, executed a receipt to Mien acknowledging the receipt of all assets of the estate as shown by such final settlement. The probate court then made an order discharging Allen, the former guardian. Some two years later the present suit on Allen's bond was filed, alleging as a breach of said bond that Allen had loaned Bennett the sum of $325 of his ward's estate without taking real estate security as required by sections 444 and 533, R. S. 1909; that the maker of the note is insolvent and the note uncollectable and worthless.

The defendants have interposed as a defense the facts above stated in reference to the filing and approval by the probate court of the final settlement of Allen as guardian in the estate mentioned, after the exceptions to such settlements had been filed and disposed of, and defendants claim that the approval of such final settlement of said estate is in the nature of a final judgment and res judicata of the present controversy. An examination of the authorities convinces us that defendants' contention is correct. The plaintiff does not deny that final settlements of administrators, guardians, etc., are, as a general rule, conclusive and binding, unless same be set aside for fraud or the like. Woodworth v. Woodworth, 70 Mo. 601. The relator claims, however, that this rule as to the conclusiveness of final settlements does not apply to the settlement of a guardian or administrator who has resigned, died, or been discharged when such settlement is made with his successor in office. We find no such distinction in this state, but, on the contrary, that a settlement duly made by an administrator or guardian who has resigned or been discharged, made with his successor in office, has the same conclusiveness and finality as other final settlements. Thus in State ex rel. v. Gray, 106 Mo. 526, 17 S. W. 500, the settlement of Owens as administrator of Hickox with his successor in office was attacked by a suit on the bond as here on the ground of obtaining false credits in such settlement. Such settlement had been approved by the...