State v. Hardy

• Decision Date: 02 December 1918
• Docket Number: No. 13040.,13040.
• Citation: 206 S.W. 904,200 Mo. App. 405
• Parties: STATE ex rel. and to Use of SHORT v. HARDY et al.
• Court: Missouri Court of Appeals

206 S.W. 904

200 Mo. App. 405

STATE ex rel. and to Use of SHORT v. HARDY et al.

No. 13040.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Moniteau County; Jack G. Slate, Judge.

Action by the State, at the relation and to the use of J. M. Short, guardian and curator of the estate of Grace Miller, Goldie Miller, and Henry Miller, against H. B. Hardy, Edward C. Nischwitz, G. F. Tising, Heman C. Thing, and John L. Tising, executors of the last will and testament of J. F. Tising, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

S. C. Gill and J. B. Gallagher, both of California, Mo., for appellants.

Embry & Embry, of California, Mo., for respondent.

TRIMBLE, J.

Defendant Hardy was public administrator and ex officio public guardian and curator of Moniteau county for three successive terms, the last of which ended January 1, 1909. During his last term, and on July 30, 1906, he was ordered by the probate court to take charge of the persons and property of Grace, Goldie, and Henry Miller, minors. He did so, and continued as guardian and curator of said minors through the remainder of his term and thereafter until November 9, 1914, when he voluntarily appeared in the probate court and asked to be permitted to execute a new bond as guardian and curator and that his bond as public administrator be discharged. The court made an order permitting him to execute said new bond, which he did; and same was filed and approved by an order which further directed that "the said bond as public administrator as aforesaid be, and the same is hereby, finally discharged from further liability in this behalf."

Hardy continued as guardian and curator, under said new bond, until November 26, 1917, when, upon proof of the publication of four weeks' notice in a newspaper of the presentation of his application for permission to resign, he filed what the probate records term a "final settlement" showing a balance due the estate of $3,183.61, which amount the probate court ordered Lo be forthwith paid over to his successor, Short, who, on the same day, was duly appointed and qualified as such. Hardy also filed his resignation, which was accepted by the court; but he failed to pay over to his successor the balance found to be due or any part thereof.

Whereupon his successor brought this suit on the aforesaid bond against hist and his sureties, one of whom is dead, but whose estate is represented herein by his executors. Said bond recites that, whereas Hardy had been appointed guardian of the persons and curator of the estates of said minors, "now, if the said H. B. Hardy shall faithfully discharge his duties as said guardian and curator, according to law, then this bond to be void," etc.

The petition, after alleging the appointment of the successor guardian and the execution of the bond sued upon, sat up the resignation of Hardy, the filing of said settlement showing the balance hereinbefore mentioned, the order to pay over said balance, and the demand therefor in open court by said successor, and, for the breach of said bond, charged the failure and refusal of said Hardy to pay said amount as ordered.

Hardy filed no answer, but the sureties defended upon the ground that Hardy converted the funds before the execution of the bond sued on, and that on the 9th day of November, 1914, the day said bond was executed, and for at least six months prior thereto, he did not have, and had not had, in his possession or under his control, any money, notes, or personal property belonging to said heirs, except certain yearly rents from real estate which the sureties alleged had been duly accounted for in his settlements. All this was denied by the reply.

The case was tried before the court without a jury. The judgment recites that the court found that, after notice of his intention to resign, duly published according to law, Hardy filed his written resignation, made a final settlement, and his resignation was accepted, that the said settlement showed he was indebted to said minors in said sum of $3,183.61, and that the probate court had ordered the same paid forthwith over to his successor, who then and there demanded it of him in open court, but that he had failed and refused to pay it or any part thereof; wherefore judgment was rendered for $6,000, the penalty of the bond, to be satisfied by the payment of $3,183.61 and costs. The sureties appealed.

After defendants' demurrer to the evidence had been overruled, they asked the court to give two declarations of law, the first to the effect that, if the court found Hardy did not have the estate of said minors in his hands or possession at the time of the execution and approval of the bond sued on, but had used it in private business or in settlement of other estates in his hands prior to November 9, 1914, then the fact that he charged himself up in settlements of the estates was not binding upon the defendant sureties, and the finding should be in their favor. The second declaration was to the effect that, if the court found that at the time of the approval of the bond sued on Hardy, as curator, had used the assets of said estate in his private business, or in settling up other estates of which he may have been in charge, and did not have said assets in his hand, or in his possession or under his control, although he was solvent, then the finding should be in favor of the defendant sureties, notwithstanding the fact that Hardy kept up his settlements as curator and charged himself with the balances thereof as though he had the moneys of the estate in hand. Both of these declarations were refused.

It is defendants' contention: First, that the court should have sustained their demurrer to the evidence; second, that the court erred in refusing each of said declarations.

Prior to and after the giving of the bond sued on, to wit, November 9, 1914, Hardy made annual settlements with the probate court wherein he charged himself with a balance expressed merely in dollars and cents, with no statement as to what the estate consisted of or how it was invested, and the balance on each settlement was carried over into the next in the same way. The balance on the first settlement was a little over $4,000, and the balances continued to run between $3,800 and $3,135.95, the last-named sum being the balance on the eighth settlement, made August, 1914, the last settlement made before the new bond was executed. This balance was carried over into the ninth settlement, made in August, 1915, the first settlement under the new bond; and the balance on the settlement made August 19, 1916, was $3,211.62, and the last settlement, made on November 26, 1917, the date of his resignation, showed a balance, as before stated, of $3,183.61.

With reference to whether defendants' demurrer should have been sustained, we think that, regardless of the questions hereinafter discussed, the court did right in overruling the demurrer. For, without regard to the time when the conversion occurred, the settlements made under the new bond show that about $450 of rents came every year into the curator's hands, and, in accounting for these, Hardy credited himself with various sums for his services. Now, the rule is that a curator who has converted assets of the estate is not entitled to pay for his services, since pay is an Incident to a faithful discharge of the trust. State, to Use, v. Berning, 74 Mo. 87, 100. So that the curator has not fully accounted for the rents that came Into his possession after the execution of the bond sued on, but owes the said sums which he paid to himself. It would seem that this would justify the court in refusing to sustain the demurrer, and would authorize a judgment for the amount of these credits against the sureties on the bond in suit, even if said sureties should not be held responsible for any other amount.

It will be observed that the bond sued on was a new bond given as surety for Hardy as guardian and curator in his private capacity, and not as public guardian by virtue of being public administrator. Hence it was not an additional bond to guarantee the faithful performance of his duties as public administrator and guardian, nor are the terms of the bond such as to make it retrospective in character.

For the purpose of showing that liability was on the sureties of his bond as public administrator, and not on the present or second set of sureties, the defendant introduced Hardy as a witness to prove that he converted the heirs' money before the present bond was executed, and that he did not have any money of these heirs in his official hands at the time the bond in suit was executed, and that none had come into his hands as guardian since, except the rents heretofore mentioned, which rents he said he had correctly accounted for and paid out for expenses. His testimony, however, is very indefinite and unsatisfactory. He was asked if he had any of the money or personal property of the Miller heirs at the time the bond in suit was executed or at any time for a period of six months before that, and he answered in' the negative. But he could not be induced on cross-examination to say when he converted the Miller money, and his testimony as a whole tends to show that it is only his conclusion that he had converted the money of these heirs at that time. He kept all funds in his hands as public administrator, including the Miller money, in one general fund in a public administrator account at the bank. This account was not introduced in evidence, nor was he able to testify with reference to it and admitted he had not examined it. No showing whatever was made as to when this public administrator account was exhausted if it ever was. So far as the evidence shows, there may have been money in this account at the time the second bond was executed and thereafter, but that he considered the Miller money had been checked out either in...