The State ex rel., Bay v. Holman

• Decision Date: 02 June 1902
• Citation: The State ex rel., Bay v. Holman, 68 S.W. 965, 96 Mo.App. 193 (Kan. App. 1902)
• Parties: THE STATE OF MISSOURI ex rel., SAMUEL L. BAY, Guardian, etc., Respondent, v. WILLIAM A. HOLMAN, Administrator, etc., et al., Appellants
• Court: Kansas Court of Appeals

68 S.W. 965

96 Mo.App. 193

THE STATE OF MISSOURI ex rel., SAMUEL L. BAY, Guardian, etc., Respondent, v. WILLIAM A. HOLMAN, Administrator, etc., et al., Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Ray Circuit Court.--Hon. J. W. Alexander, Judge.

REVERSED.

STATEMENT BY BROADDUS, J.

This is a suit on the bond of William A. Holman as public administrator and ex-officio public guardian and curator of Ray county, Missouri.

The petition, after alleging the election of Holman in November 1894, and the execution and approval of the bond in March thereafter, states that at the July term, 1895, of the probate court of Ray county, upon an inquest duly had before a jury therein, Julia Elliott, a resident of said county, was found and adjudged to be a person of unsound mind and incapable of attending to her affairs; that Holman, the then public administrator and ex-officio public guardian and curator of said county, was by the probate court ordered to take charge of the person and estate of said Julia Elliott as such public guardian; that under, and in obedience to said order, and by virtue of his said official position, he did take charge of her person and estate as such public guardian and continued in charge thereof until the time of his removal by the court; that at the July term, 1901, of said court Holman made his final and turnover settlement; that the court ascertained that the amount due and owing from said Holman as such public guardian, to his said ward was $ 1,297.95, and rendered judgment accordingly; that in said proceedings costs had been necessarily incurred in compelling said Holman to make settlement, amounting to $ 18; that said Holman had failed and refused to pay said costs or the amount found to be due or any part thereof, though demand had been made upon him by his successor in office; and asked judgment for the penalty of the bond with execution for the damages as above set forth.

The answer was a general denial.The facts on which the case was tried were agreed upon and are as follows:

Holman was elected to this office in November, 1894, to fill out an unexpired term.In March, 1895, he gave the bond in suit, the execution and approval of which was admitted.The bond is in the usual form, conditioned for the faithful discharge of all the duties of the office.One of the sureties, W. W. Brown died prior to this suit, and Mary A. Brown is his executrix.In July, 1895, Julia Elliott, a resident of Ray county, Missouri, was, upon an inquest duly held in the probate court, found and adjudged to be a person of unsound mind and incapable of attending to her affairs, and Holman ordered by the court to take charge of her person and estate as public guardian of said county.Under and in obedience to this order, and by virtue of his official position, he did take charge of the money and property of said ward and continued in charge thereof as such officer until he was, by the court, removed from the guardianship of her estate.In November, 1896, Robert J. Clark was elected public administrator of Ray county, and again in 1900 as his own successor, but resigned in July, 1901, and Samuel L. Bay, who now holds that office, was appointed in his stead.

On July 16, 1896, Holman filed his first annual settlement as public guardian of said estate, reciting the receipt of $ 1,147.30 of his ward's money in 1895, and showing a balance in his hands as such public guardian of $ 1,136.85 belonging to his ward on that date.In July, 1897, he filed his second annual settlement showing a balance in his hands of $ 1,108.70 belonging to his ward.His third annual settlement, made in July, 1898, shows a balance of $ 1,104.18 due his ward; and his fourth annual settlement, filed in July, 1899, shows a balance in his hands of $ 1,095.65 belonging to his ward.February 20, 1901, after due notice, his appointment as public guardian of said estate was revoked, and he was removed from the guardianship thereof and ordered to make final settlement.Thereupon Robert J. Clark, the then public administrator of Ray county, was ordered by the court to take charge of the estate as public guardian; he did so, and continued the guardianship thereof until July 3, 1901, when he resigned his office as public administrator and Samuel L. Bay, who had been appointed in his stead, took charge of said estate as public guardian under the orders of the probate court, and he still has charge thereof.

On July 18, 1901, at the regular July term of the probate court, Holman, after taking the necessary legal steps and giving the proper notice, filed his final and outgoing settlement as public guardian of said ward, and the court, upon investigation, found: "That said William A. Holman is, in his official capacity as public guardian of the estate of said Julia Elliott and by virtue of his former official position as public administrator and ex-officio public guardian and curator of Ray county, indebted to said Julia Elliott in the sum of $ 1,297.95," rendered judgment accordingly, as well as for costs in that behalf expended, and ordered that he pay over the amount so found to be due to Samuel L. Bay, public guardian in charge of said estate.All this Holman failed and refused to do, though demand was made upon him therefor.

The court found for the plaintiff against said Holman and his securities in the sum of $ 1,335.42.The defendant sureties appealed.The contention is that the defendant sureties are not liable on the bond for the following reasons:

First.Because it became the duty of the probate court, when it found by judicial inquiry that said Julia Elliott was insane, to have appointed a special guardian for her, and that the placing of her person and estate in the hands of said Holman, as such public administrator, was in disobedience of law.

Second.Because after the execution of said bond by them, the duties and responsibilities of the office of public administrator were enlarged by act of the Legislature.

Judgment reversed.

J. L. Farris & Son for appellants.

(1) By virtue of the Revised Statutes 1889, chapter 86, and after ascertaining under said statute that the said Julia Elliott was insane and incapable of managing her affairs, it then became the imperative duty of the judge of the probate court, to appoint a special guardian of the person and estate of the said Julia Elliott, and to have required said guardian to give a good and sufficient bond.Secs. 5517 and 5521, R. S. 1889, chapter 86.(2) Hence, the order of the probate judge placing Julia Elliott, insane, with her property in the hands and under the control of the public administrator, was in disobedience of the law governing the management of the insane and their property, which being true the defendants, being the securities on the bond, should not be made liable.(3) At the time the defendants became securities upon the bond here sued upon, there was no law in existence whereby the judge of the probate court under any conditions could order the public administrator to take charge of Julia Elliott, insane, or control of her property.Section 299, article 15;Session, Acts, 1895, p. 35.(4)The appellants as securities can not be held beyond the precise terms of their contract, nor can their liability be extended by implication; neither can they be made liable on this official bond for new responsibilities which were added to the office of public administrator, subsequent to the execution of said bond by the securities, appellants herein, through subsequent legislative amendments.McCurdy v. Brown,8 Mo. 549;Blair v. Ins. Co.,10 Mo. 560;State to use v. Roberts,68 Mo. 234;Bauer v. Cabanne,105 Mo. 110;Bricker v. Stone,47 Mo.App. 530;Erath v. Allen,55 Mo.App. 107;Schuster v. Weiss, 114 Mo. 158.

Garner & Divelbiss for respondent.

(1)The amendment of 1895 added no new or additional duties or burdens to the office of public administrator and ex-officio public guardian and curator.R. S. 1889, secs. 296, 300.(2) The probate court could order Holman to take charge of any estate in which no letters had been previously granted.R. S 1889, sec. 299;Callahan v. Griswold,9 Mo. 784;Headlee v. Cloud,51 Mo. 301.(3) Even though the Act of 1895 did add new duties to the office of public administrator and exofficio public guardian and curator, they were germane to the original duties of that office and were of the same general nature and character as those imposed by law on the holder of that office at the time of the execution of the bond sued on.Woerner Am. Law, Guardianship, pp. 432, 451, and note.Johnson v. Bank,56 Mo.App. 257;Oldham v. Trimble,15 Mo. 225;State v. Rolland,23 Mo. 95;R. S. 1889, secs. 5297, 5298, et seq.;R. S. 1899, secs. 5525, 5526, et seq.;Laws 1893, p. 178;R. S. 1899, sec. 3704.(4) An official bond covers not only duties imposed by existing law, but also those that may be subsequently added by the Legislature, where they are such as may reasonably or naturally be connected with the office or its business; that is, if the additional duties are germane to the office, or are of the same general character and nature as the duties originally belonging to the office.Throop on Pub. Off., sec. 271;State v. Marney,13 Mo. 7;State v. Smith,57 Mo.App. 120;King v. Nichols,16 Ohio St. 80;Dawson v. State,38 Ohio St. 1;Bartlett v. Governor, 2 Bibb (Ky.) 586;Colter v. Morgan's Adm'r.,12 B. Mon.(Ky.) 278; Com. v. Gabbert, 5 Bush (Ky.) 438;Governor v. Ridgway,12 Ill. 14;Smith v. Peoria Co.,59 Ill. 412;Prickett v. People,88 Ill. 120;Territory v. Carson,7 Mont. 417;People v. Vilas,36 N.Y. 469, 93 Am. Dec. 520;Bd. of Ed. v. Quick,99 N.Y. 138;People v. Backus,117 N.Y. 196;White v. Fox,22 Me. 341;Brown v. Sneed,77...