State v. Martin
| Decision Date | 15 June 1885 |
| Citation | 18 Mo.App. 468 |
| Parties | THE STATE OF MISSOURI TO THE USE OF JOHN E. SMITH, GUARDIAN AND CURATOR OF JOHN W. ROBERTS, JAMES L. ROBERTS, AND MARY E. ROBERTS AND IDA M. NICHOLS AND DAVID H. NICHOLS, HER HUSBAND, Respondents, v. ROBERT S. MARTIN AND JOSEPH G. JONES, Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Boone Circuit Court, HON. GEO. H. BURCKHARTT, J.
Reversed and remanded.
Statement of case by the court.
Before judgment in the circuit court the above named plaintiffs, Ida M. Nichols and David H. Nichols, dismissed this suit as to them. This statement will, therefore, contain the facts so far only as they concern the remaining parties herein.
Plaintiff for amended petition alleged the appointment of one Tyre M Roberts, by the probate court of Boone county, as curator of John W., James L., and Nancy E. Roberts; that said Tyre M Roberts duly qualified as such curator by giving and executing his curator's bond, with himself as principal and the defendants as his sureties, in the penal sum of one thousand dollars, which was duly accepted and approved by the probate court aforesaid, and that said Tyre M. Roberts, as such curator, received the property and the estate of his said wards, and proceeded to control and administer the same. That thereafter the said Tyre M. Roberts died intestate, and Eli Penter was duly appointed by the probate court administrator of his estate, and was required by said court to make a statement showing what amount, if any, was due from said intestate as the guardian and curator of said wards. That after a just and proper accounting was had, it was found and adjudged by said probate court, on the 13th day of November, 1881, that there was due to each of the three said wards the sum of one hundred and twenty-six dollars and twenty-two one-hundredths, and thereupon judgment was rendered by said court in favor of John E. Smith, guardian and curator of said wards, for the sum of three hundred and seventy-eight dollars and sixty-six one-hundredths, said Smith having been duly appointed and qualified as such guardian and curator, on the 17th day of May, 1881, etc., etc., for which sum, with interest, etc., judgment was asked.
The defendants for answer admitted all the allegations of the petition down to and including the words " proceeded to control and administer the same " ; and denied generally all the other allegations of the petition. Further answering, the defendants alleged the utter insolvency of Tyre M. Roberts for three years prior to his death, and his total inability, owing to his poverty and helpless invalid condition two years prior to his death, to support, maintain, and educate his said wards and children, otherwise than by using their estates; that he used their estates during those years solely in procuring the necessaries of life and educating them; that he intended to charge and did charge them, during those last years of his life, with the amounts he was thus compelled to use for them, which consumed their respective estates, and that the charges so made by said Tyre M. Roberts, as curator, are not itemized by defendants, as the items of those charges are more particularly within the knowledge of relators than of appellants, and that appellants are wholly without remedy, as said sureties, unless allowed to maintain the defence made.
The plaintiff demurred to that part of defendant's answer containing the new matter. The demurrer was sustained by the court below. The defendants declined to answer further and the court rendered judgment in favor of plaintiffs, in accordance with the prayer of the petition. From that judgment the defendants have appealed to this court.
DOUGLASS & BABB and W. J. WARREN, for appellants.
I. The court erred in sustaining demurrer to answer. There are cases where the allowance ought to be made to the parent from the ward's estate for support, and especially where the father has been compelled to use the means of his wards, and has, in good faith, charged the wards with the means so used. The answer discloses that the father was for three years prior to his death utterly insolvent, was a helpless invalid, wholly unable to support and educate his wards and children out of his own means, or by his labor, and was compelled to use the property to supply them with the necessaries of life and furnish the means of education, and that he charged these wards with these necessaries, etc., furnished. Guion v. Guion's Adm'r, 16 Mo. 48; Otto v. Breton, 55 Mo. 99.
II. The sureties on the bond of a deceased curator can not, under the guardian's and curator's act (ch. 37, Revised Statutes, 1879), confer any jurisdiction on the probate court by appearance, nor can the court otherwise acquire jurisdiction for the purpose of rendering a judgment against said sureties. The appellants have the right to be heard fully in regard to the whole administration of the deceased curator, in this or a similar proceeding.
III. In the answer, a number of the material averments of the petition are denied--in short, everything alleged except the curatorship of Roberts. Notwithstanding this, however, the court, after sustaining the demurrer, proceeded at once without any evidence whatever to render judgment against the appellants. This was manifest error.
WELLINGTON GORDON, for the respondents.
I. The court committed no error in sustaining demurrer to appellant's answer. The parent is bound to support, maintain, and educate his child. He can not appropriate its estate, for the above purposes, except under the order and direction of the probate court. He should have applied for such order, and, failing to do so, his securities are liable. The statute expressly provides for such order and appropriation. Section 2586, Revised Statutes of Missouri, 1879; Gillette v. Camp, 27 Mo. 502; Otto v. Boctom, 55 Mo. 99; State to use Brent v. Grace's Adm'r, 26 Mo. 87; Guion v. Guion's Adm'r, 16 Mo. 48.
II. The record shows, and the answer admits, that whatever was due from Roberts was used and converted by him in the manner stated in the answer, and the amount was adjudged to be due them by the probate court on final settlement had with said court by the administrator of said curator (Roberts). This judgment was final and conclusive, and binding on appellants as his securities. This rule holds as to securities on bonds of administrators and is equally applicable to securities on bonds of guardians and curators. State to use, etc., v. Holt, 27 Mo. 340; Dix v. Morris, 66 Mo. 514.
III. The father, although he is guardian of the child, is bound to support it, and if not so, he must, before being permitted to apply any portion of his ward's income to that end, procure the sanction of the probate court or other proper court. Am. Probate Reports, vol. 2, p. 489; Burke v. Turner, 85 N.C. 509; Horton's Appeal, 94 Pa.St. 62.
IV. The court did not err in giving judgment for plaintiff on the demurrer, as defendants elected to stand on their answer and refused to amend or proceed further with the trial of the cause, and the answer admitted all of the essential facts authorizing the court to render judgment against defendants.
1. The defendants complain of the judgment of the circuit court among other reasons, because the answer only admitted the appointment and qualification of Tyre M. Roberts as curator of the said wards, as alleged in the amended petition, and denied all the other allegations of the petition, including the allegations as to the appointment of Eli Penter as administrator of the estate of said Tyre M. Roberts, and the judgment of the probate court against him as such administrator, and the appointment of John E. Smith as guardian and curator of the said wards after the death of their former curator, Tyre M. Roberts. This is unquestionably the real condition of the pleadings. All those material averments of the petition were denied, and the judgment rendered by the circuit court should not have been rendered without proof of the truth of said averments. For this reason, the judgment of the circuit court...
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