State v. Branch

• Decision Date: 19 June 1899
• Citation: 52 S.W. 390,151 Mo. 622
• Parties: STATE ex rel. HOSPES et al. v. BRANCH et al.
• Court: Missouri Supreme Court

52 S.W. 390

151 Mo. 622

STATE ex rel. HOSPES et al. v. BRANCH et al.

Supreme Court of Missouri.

June 19, 1899.

TRIAL — INSTRUCTIONS — GUARDIAN'S BOND — RELEASE OF SURETIES — ESTOPPEL — IMPEACHING WITNESS — ARGUMENTS OF COUNSEL.

1. Where defendant asked no other instructions than that embraced in the one given by the court, he cannot complain of a failure to give any other instructions.

2. Where one holds funds as a guardian, he cannot, by giving a receipt from himself as trustee to himself as guardian, shift the liability of his sureties as guardian to his sureties as trustee, where there was no transfer of substantial assets.

3. Where a ward, after final settlement by her guardian, in which he receipted as trustee to himself as guardian for a legacy in his possession, received money from him as trustee, and acknowledged payment by receipt to him as trustee, and thereafter petitioned for his removal as trustee, on allegations that he had misappropriated funds as trustee, it does not estop her to sue the sureties on his bond as guardian, where the misappropriation was made by him while guardian, where the sureties had no knowledge of such statements by her, and did not act on such knowledge to their own injury.

4. It was the duty of the sureties on a guardian's bond, on an order of the court requiring him as guardian to turn over to himself as trustee the amount found to be due, to see that the order was carried out; and their liability did not cease until such order was carried out, or they were prevented from fulfilling their duty by some act of the ward on which they relied.

5. Refusal of instructions fully covered by instructions given is not error.

6. Where defendant examined plaintiff's witness on new matters not drawn out in chief, as to such matters the witness becomes defendant's witness, and he may be contradicted by plaintiff.

7. An objection that counsel, in his argument, went outside of the record and misquoted the testimony, cannot be considered when first made on motion for new trial.

In banc. Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by the state, on the relation of Richard Hospes and others, against Joseph Branch

and others. Judgment for plaintiffs, and Eugene C. Tittman, administrator of Basil W. Alexander, appeals. Affirmed.

R. S. MacDonald and Edw. C. Kehr, for appellant. B. Schnurmacher, Jos. S. Laurie, and Valle Reyburn, for respondent.

ROBINSON, J.

This is an action at the relation and to the use of Richard Hospes, trustee of Alice Crookes, and the said Alice Crookes, against Joseph Branch, her former curator, and the personal representatives of the sureties on his bond. The cause comes up from the St. Louis circuit court, and makes its appearance in this court for the fourth time; the former appeals being reported, respectively, in 112 Mo. 661, 20 S. W. 693; 126 Mo. 448, 28 S. W. 739; and 134 Mo. 592, 36 S. W. 226. Suit was originally commenced on March 12, 1889. Defendant Branch suffered a default to be taken against himself. Defendant Elizabeth M. Parkes, executrix of Robert M. Parkes, deceased, although filing a general denial, took no part in the trial. The issues were made up by the petition of the plaintiffs and the second separate amended answer of E. C. Tittman, administrator of the estate of Basil W. Alexander, deceased. Upon the last trial a jury, being called, returned a verdict assessing plaintiffs' damages at the sum of $30,000, whereupon the court entered a judgment in accordance therewith. Defendant Tittman, administrator, filed a motion for a new trial, and, the same being overruled, in due time perfected his appeal.

The petition alleged the appointment and qualification in April, 1878, of Joseph W. Branch as curator of the estate of Alice Crookes, who was then a minor; the execution of a bond for the faithful discharge of his duties, in the sum of $32,000, with Parkes and Alexander as sureties; the subsequent death of Parkes and Alexander, and the appointment and qualification of the present defendants as their personal representatives, respectively. The petition then charges a breach of the conditions of the bond sued on, in that Branch received and collected the sum of $29,514.32, the property of his ward, which sum he converted to his own use, to the extent of $20,511.95, for which plaintiffs pray judgment, together with interest and costs. The second amended answer of E. C. Tittman, administrator, upon which the case was tried, admits the death of the sureties on the curator's bond, the appointment and qualification of the personal representatives, and the appointment of Joseph W. Branch as curator of the estate of Alice Crookes, but denies the other allegations of the petition, and, as an affirmative defense, avers that Alice Crookes is the daughter of one Joseph Crookes, who died testate in St. Louis in November, 1874, and that she is a legatee under his will, by the terms of which he directed that Joseph W. Branch should be appointed curator of her estate during her minority, and further provided, upon her reaching the age of 18 years, that her estate should be placed in the hands of a trustee for her sole and separate use and benefit. The answer sets up the final settlement of Joseph W. Branch as curator of the estate of Alice Crookes upon the attainment of her majority, the approval of such settlement by the probate court, his discharge as curator, and the order finding the balance in his hands at the sum of $19,832.15, and directing that it be paid to the trustee of Alice Crookes, when one should be appointed as provided for by the will of her father. The answer contains a further averment that, subsequent to such action of the probate court, Alice Crookes filed a petition in the circuit court of St. Louis setting up the foregoing facts, and praying for the appointment of Joseph W. Branch as her trustee, upon which the circuit court found the facts to be as contained in the petition, and appointed Branch trustee, who accepted the trust, and gave bond in the sum of $40,000, with Charles P. Chouteau and R. M. Parkes as sureties, which bond the court approved. In addition, the answer sets out the filing of a receipt in the probate court, signed by Branch as trustee to himself as curator, for the sum found to be in his hands, and states that, at the time of his discharge as curator, Branch was solvent, and had sufficient property to satisfy the sum of $19,832.15; that afterwards suit was brought by Alice Crookes in the circuit court against Branch, charging him with the misappropriation of her funds held in the capacity of trustee, and asking for his discharge, and an accounting of the sum due, which proceeding resulted in an account being taken, and in the removal of Branch as trustee. The answer also charges that a new trustee was appointed, who subsequently, upon the failure of Branch to pay over the amount as ascertained to be due from him, brought suit against him as trustee, and the sureties on his bond as such, which suit is still pending. "And the defendant says that the several allegations and admissions aforesaid are solemn declarations made by the said Alice Crookes, and by the plaintiffs herein, to the effect that the fund in question came to the hands of said Branch as trustee after he was appointed and qualified as such, and are inconsistent with the averments now made by the plaintiffs in this cause, that said fund was never received by said Branch as trustee, but was converted by him to his own use whilst in his hands as curator; that said Alice Crookes having in her aforesaid pleadings admitted and averred that said Branch had said fund in his hands as curator at the time he was appointed trustee, and that after he was appointed and gave bond as trustee he paid the same over to himself as trustee, and thereafter had it in his possession and custody as trustee, and having induced this court to so find and declare by its record, this defendant's intestate, said B. W. Alexander, was justified in relying upon the facts so stated and declared, and did rely upon the same, and in consequence thereof did forego all steps or actions which he otherwise would or could have taken during the time of Branch's solvency to compel payment of said fund or to obtain security for its payment, and this defendant is advised that with such allegation and admission on the part of said Alice Crookes appearing of record, and the court's finding and judgment thereon, said Alexander could not at any time during his lifetime, nor could this defendant after his death, have maintained any action or proceeding to compel said Branch to pay or secure said sum, though until the day of his failure, in 1888, said Branch was amply able to pay or secure said sum;" and that by reason thereof the plaintiffs are estopped to assert a conversion of such funds by Branch as curator; and further claiming that by reason of the commencement of this suit against Branch as trustee, and the sureties on his bond in that capacity, plaintiffs elected to hold him as trustee, and not as curator, — which new matter plaintiffs generally denied by reply.

The evidence shows that in 1874 Alice Crookes, then a minor, became a legatee under the will of Joseph Crookes, her father. In his will, Joseph W. Branch, who was the maternal uncle of Alice, was appointed her curator. He duly qualified as such, and executed the bond which is the basis of this suit, in the sum of $32,000, with Basil W. Alexander and Robert M. Parkes as securities. Joseph Crookes and Branch had been engaged in business together, although, just prior to his death, Crookes had sold out his interest to Branch, but had never withdrawn any money, and at the time of his death the legacy of Alice was in the hands of Joseph Branch. The will of Crookes further provided that, when Alice should become 18 years of age, her estate should be turned over by the curator to a trustee, who should hold the same...