State v. Greer

• Decision Date: 28 April 1903
• Citation: 101 Mo. App. 669,74 S.W. 881
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. SCOTT v. GREER et al.

74 S.W. 881

101 Mo. App. 669

STATE ex rel. SCOTT v. GREER et al.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

PUBLIC ADMINISTRATORS—BONDS—LIABILITY OF SURETIES—DISCHARGE OF SURETIES— ACTION ON BOND—CORRECTION OF ANNUAL SETTLEMENT.

1. Where there was no evidence to prove that a public administrator's defalcation occurred during his first term, but there was evidence that it occurred later, the annual settlements he made showing the balance sued for to be still in his hands during his second term, the sureties on his second bond were the parties liable.

2. The sureties on a public administrator's bond were not discharged from liability by a settlement of a ward's estate made by the individual administrator of such public administrator when he surrendered charge to the latter's successor in office, but continued liable until the balance shown in favor of the ward's estate was paid to a succeeding curator or to the ward himself.

3. An annual settlement of an estate made by a public administrator is subject to correction at any time while the administration is in progress.

4. For a curator and his sureties to be discharged from responsibility it is as necessary for the former to pay over the money in his hands as it is to file a final settlement.

5. The coming of age of the ward terminates a curatorship as to all things except the settlement between the ward and the curator provided for by Rev. St. 1899, § 3529, and such details as are necessary to wind up the estate and settle with the ward.

6. After the coming of age of a ward, he, and not his curator, is the proper party to sue on the bond of a prior deceased curator to recover money belonging to the ward, which came into the deceased curator's hands, but was never turned over to his successor in office.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by the state, on the relation of Alonzo Scott, against J. J. Greer and others. Judgment for relator, and defendants appeal. Affirmed.

Philips & Philips, for appellants. John G. Wear, for respondent.

Statement of Facts and Opinion.

GOODE, J.

This is an action on the bond of Thomas M. Lane as public administrator of Butler county, Mo., by virtue of an election held November 8, 1892. Lane was first elected public administrator of said county in 1888, and gave bond on December 13, 1888, with W. F. Neal and others as sureties. While Lane was serving his first term, the estate of relator, Alonzo Scott, then a minor, was ordered into his hands by the probate court of Butler county, and he was appointed ex officio curator of said estate. He remained in charge of it until his death, which occurred January 30, 1895, during his second term, and meanwhile had made several annual settlements. After Lane's death, James L. Dalton was appointed administrator of his individual estate, and qualified as such, and Aaron Mast was appointed and commissioned public administrator of Butler county to fill out Lane's unexpired term. On March 4, 1895, the probate court ordered Aaron Mast to take charge of the estate of Alonzo Scott, and thereafter, on May 9th, Dalton, as administrator of Lane's estate in charge of Scott's estate, made (as appellants' abstract says) "a transfer settlement of assets" in his hands belonging to the estate of Alonzo Scott to Aaron Mast, the new public administrator, which settlement showed a balance due the estate of $356.75, and Mast subsequently charged himself with that sum in his annual settlements. Dalton afterwards resigned as administrator of Lane's individual estate, and turned that over likewise to Mast by order of the probate court. It was conclusively shown by the evidence of both Dalton and Mast that, instead of Dalton delivering to Mast any assets in his hands as administrator of Lane's estate which belonged to the estate of Scott, the minor, Dalton, found no such assets among Lane's effects. About all the assets Lane had when he died were several thousand dollars worth of promissory notes payable to himself, and there was but little, if anything, in his hands belonging to the various estates in his charge as public administrator. Outside of a few worthless notes, whatever was in his hands belonging to those estates he seems to have converted into notes payable to himself individually. Mast afterwards discovered he had made a mistake in debiting himself with the amount shown to be due Scott's estate by the "transfer settlement" (so called) of Dalton; and, as he stood charged with that amount ($356.75), and responsible to Scott for it, he filed a petition in the probate court June 30, 1898, asking to have his third annual settlement, in which that erroneous charge still appeared, corrected, which petition was granted, and the correction made by striking the item from the debit charges against Mast. It seems that about the same time Mast instituted some sort of a proceeding against the sureties on Lane's bond to recover the balance shown to be in Lane's hands, but never turned over to him. This proceeding was subsequently dismissed. In 1899 Mast was removed from the office of public administrator of Butler county, and Lemuel Mills was appointed in his place, and took charge of Scott's estate, in which, so far as appears, there has been no final settlement by either Mast or Mills. When Scott attained his majority, he instituted this action on the second bond given by Lane as public administrator to recover the money belonging to Scott which came into Lane's hands, but was never turned over to either of his successors in the curatorship.

Three defenses are made: First. That the action ought to be on Lane's first official bond, because he took charge of Scott's estate during his first term of office. Second,...