Steina v. Bergstein

• Decision Date: 04 May 1920
• Docket Number: No. 15593.,15593.
• Citation: 204 Mo. App. 366,221 S.W. 420
• Parties: STEINA v. BERGSTEIN
• Court: Missouri Court of Appeals

221 S.W. 420

204 Mo. App. 366

STEINA v. BERGSTEIN

No. 15593.

St. Louis Court of Appeals. Missouri.

May 4, 1920.

Rehearing Denied May 27, 1920.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Proceedings commenced in probate court and appealed to the circuit court by Lillian Stetina against Charles Bergstein, administrator of Kathrine Zacek, deceased. Prom a judgment for plaintiff, defendant appeals. Reversed and remanded.

Pierre Vogel, of St. Louis, for appellant. Harry G. Finley and Earl M. Pirkey, both of St. Louis, for respondent.

BIGGS, C.

Plaintiff had judgment in the circuit court for $700, based on the following statement of account originally filed as a claim in the probate court, where she likewise had judgment:

                                  St. Louis, Mo., May 23, 1916
                

                To Charles Bergstein, Administrator of the Estate
                   of Kathrine Zacek, deceased; to Lillian Stetina
                   formerly Lillian Rezney, Dr
                To money loaned and advanced Kathrine
                   Zacek under a continuous open account in
                   various sums and amounts at various
                   times between November 1, 1909, and July
                   6, 1915 .........................................  $1,900 00
                                      Credits
                By money repaid by said Kathrine Zacek in
                   various sums and amounts at various
                   times between November 1, 1909, and July
                   6, 1915 .........................................     700 00
                                                                       ________
                      Balance due ..................................  $1,200 00
                

Plaintiff is a granddaughter of Kathrine Zacek, and had lived with her since 1901, when she was six years of age. When of the age of 14 years, in 1909, plaintiff started to work, and her evidence tends to show that she turned her earnings as received over to her grandmother, who, after providing the plaintiff with food, clothing, and shelter, was to account to plaintiff for the balance in her hands. The arrangement was not definitely established by the evidence, but it may be inferred from the declarations of the deceased, Kathrine Zacek, that it was her intention to keep said funds for the benefit of the plaintiff after providing for her board and clothing. This arrangement continued for about two years after the plaintiff reached the age of maturity, at which time Kathrine Zacek died.

Kathrine Zacek was not the legally appointed guardian of the plaintiff, and the plaintiff, being a minor, was unable to enter into any contractual relation in regard to her estate or earnings, and the result of the arrangement between the grandmother and the granddaughter was to constitute the grandmother a trustee of the funds of the plaintiff which came into her hands and for which she would be accountable. Kathrine Zacek, being without legal appointment or qualification, exercised control over the estate of the minor, and thereby became what is termed a quasi guardian or guardian de son tort.

By the statement filed in the probate court and by the evidence it is conceded by the plaintiff that Kathrine Zacek is entitled to claim credit against the funds in her hands for all sums reasonably expended by her for food, clothing, and shelter furnished the plaintiff between the time she began turning over said funds to her grandmother in 1909 until the time of her grandmother's death in 1915. Although the plaintiff became of age some two years prior to her grandmother's death, there was never at any time a settlement between the parties, and the trust remained an open and unsettled account until the grandmother's death.

This is an action for money had and received. Ordinarily where a trust relation exists between the parties, and the trust has been settled, and the balance agreed upon, or where there is no question as to the amount owing from the trustee to the cestui que trust, an action for money had and received will lie against the trustee.

And it is the law of this state that an action for money had and received will lie on behalf of a ward, upon the ward attaining the age of maturity, against the one who has assumed the relation of guardian without authority, and this is so even though the trust is an unsettled and open one. Johnson v. Smith's Administrator, 27 Mo. 591; Zeideman v. Molasky, 118 Mo. App. loc. cit. 116, 94 S. W. 754.

After the plaintiff became of age the same arrangement between herself and grandmother continued in the matter of her earnings and support, and it follows...