State v. Slevin

• Decision Date: 28 November 1887
• Citation: 6 S.W. 68,93 Mo. 253
• Parties: STATE ex rel. GARESCHE v. SLEVIN and others.
• Court: Missouri Supreme Court

6 S.W. 68

93 Mo. 253

STATE ex rel. GARESCHE v. SLEVIN and others.

Supreme Court of Missouri.

November 28, 1887.

1. GUARDIAN AND WARD — ACTION ON BOND — WHEN MAY BE MAINTAINED — PARTIES.

In Missouri, a ward who has reached majority may maintain a suit against the sureties on his guardian's bond, although the guardian is not joined as party defendant, and although the action is brought before he makes his final settlement; and this rule is not changed by Acts Mo. 1883, p. 23, requiring executors and administrators to make a final settlement after the expiration of two years from the publication of notice of the grant of letters; nor is it changed by Rev. St. Mo. § 2612, providing that, if a guardian fail to pay to the ward money ordered on final settlement, the same proceedings may be had against him and his sureties as against an executor or administrator who fails to pay.¹

2. SAME — DUTIES AND LIABILITIES — INVESTMENTS — INSTRUCTIONS TO JURY.

The question whether a guardian is reckless or injudicious in loaning his wards money is one of fact for the jury; and an instruction that if the guardian acted, in loaning the money, with ordinary care and prudence, and in good faith, and if he fully believed the security taken was ample to secure the loan, the guardian and his sureties would not be liable for loss; and a charge to the effect that if the land mortgaged to secure the loan was, at the time the mortgage was executed, sufficient to properly secure the amount, then, although it had since depreciated, the guardian and his sureties would not be liable for a loss sustained thereby, — are not erroneous.

3. SAME — ACCOUNTING — RIGHT TO CHARGE WARD'S BOARD.

A guardian who furnishes board to his wards without intending to charge therefor at the time it was furnished, cannot, at a later time, claim a credit for such board against his wards.

Transferred from St. Louis court of appeals.

Eugene C. Slevin and A. J. P. Garesche, for appellant. J. L. Hornsby, for respondents.

NORTON, C. J.

This suit was instituted in the circuit court of the city of St. Louis to recover damages occasioned by an alleged breach of a guardian's bond. It is averred in the petition that, in 1871, John F. Slevin was appointed, by the probate court of St. Louis county, guardian of the person and estate of Louis Garesche, then a minor about 15 years old; that said Slevin made and executed his bond, with defendants Charles Slevin and Alexander P. Garesche as sureties, with the condition that, if said John F. Slevin should well, truly, and faithfully discharge the duties of his office as guardian according to law, the bond should be void; otherwise to be in full force. As a breach of the bond, it is averred that, on the first of June, 1875, said guardian loaned to John Slevin and T. E. Slevin $4,000 of the estate of his ward, Louis Garesche, took their notes therefor, payable two years after date, and to secure the same took from them a mortgage on a tract of land in Williamson county, Illinois, particularly described in the petition. It is further averred that, at the same time, said guardian also loaned to the same parties, on the same security, $4,500 belonging to the estate of Adele Garesche, who was also his ward; that he made report of these loans to the probate court, and represented these lands taken as security for said loans to be worth $10,000, when in fact the land was only worth $2,000. It is further averred that plaintiff and said Adele Garesche, in 1882, filed a bill to foreclose said mortgage, that it was foreclosed, and the land was sold for $4,600, and that said plaintiff's share of the proceeds of said sale was $2,000. It is also averred that said John and T. E. Slevin became bankrupts in 1876, that John has died leaving no estate, and said F. E. Slevin was insolvent. It is then averred that said investment of plaintiff's money was reckless and injudicious, and that by reason thereof he had been damaged $4,000.

The answer of defendants Charles Slevin and Garesche admits the appointment of John F. Slevin as guardian, and the execution of the bond sued on, as alleged; admits that said Slevin loaned $4,000 of his ward's money, and secured the same by mortgage, as stated in the petition; but denies that the loan was made to John and Thomas E. Slevin, and avers that it was made to J. & J. Slevin & Sons, of Cincinnati. The answer denies that the investment of the ward's money was reckless or injudicious, and avers that, at the time of said loan, the said guardian truthfully and correctly represented the value of said land to the probate court, and that the security received was ample, and sufficient to secure said investment, and that in making the loan the guardian acted in good faith. It is further claimed that, there having been no final settlement, credit should be given the guardian for the ward's board and lodging from March, 1871, to the date of his majority, and that it was reasonably worth $25 per month. The matters set up in the answer were denied by replication. It appearing that defendant John Slevin was not served with process, the suit was dismissed as to him, and the trial was proceeded with against the securities, in which plaintif...