Tittman v. Green

• Decision Date: 22 December 1891
• Citation: 18 S.W. 885,108 Mo. 22
• Court: Missouri Supreme Court
• Parties: TITTMAN v. GREEN.<SMALL><SUP>1</SUP></SMALL>

18 S.W. 885

108 Mo. 22

TITTMAN v. GREEN.¹

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

TRUSTEES — ACTION ON BOND — RECEIPT OF FUNDS — CURATOR — CONVERSION OF WARD'S FUNDS.

1. In an action against a surety on the bond of a trustee the order appointing the trustee is properly admitted in evidence.

2. A receipt from the trustee as such to himself as curator of the cestui que trust, given after the assumption of the trust and the giving of the trustee's bond, and presented to the probate court on a settlement of his accounts as guardian and curator, was properly admitted against the surety as evidence that thereafter he held the estate of his ward by virtue of his appointment as trustee.

3. The fact that a curator kept the funds of his ward mingled with his own does not show that he made a wrongful conversion thereof, or that he did not have them in his hands as curator when he was appointed trustee of such funds, especially in view of evidence that he was perfectly solvent and able to pay at the time he was appointed trustee and rendered a final account as curator, and as such took a receipt from himself as trustee for the funds.

Appeal from St. Louis circuit court; JACOB KLEIN, Judge.

Action by Eugene C. Tittman, public administrator, in charge of the estate of Florence E. Garrison, deceased, against James Green as surety on a bond. Judgment for plaintiff, and defendant appeals. Affirmed.

Lee & Ellis and Jos. S. Laurie, for appellant. Rassieur & Schnurmacher, for respondent.

GANTT, P. J.

This is an action on a bond executed by Joseph W. Branch as principal, and the appellant, James Green, and Robert B. Brown, as sureties. The plaintiff sues on this bond as the legal representative of Mrs. Florence E. Garrison, deceased. A trial was had in the circuit court of the city of St. Louis; and on June 22, 1889, judgment was rendered against James Green, the appellant, surety on said bond, for $21,200.36. A motion for new trial was overruled, and appeal taken to this court.

The petition alleges that Florence Eliza Garrison, nee Crookes, died on December 14, 1885, and that plaintiff, as public administrator, took charge of her estate in pursuance of an order of the probate court of the city of St. Louis, made July 9, 1888; that on November 13, 1883, Joseph W. Branch was duly appointed trustee of the estate of said Florence by the circuit court of the city of St. Louis, and that said Branch, as such trustee, on the same day, in obedience to the order of said court, executed a bond to said Florence in the sum of $42,000, with James Green and Robert D. Brown as sureties, conditioned that said Branch "should well and truly perform his duties as such trustee, and should account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee," and for breach of said bond assigns that said Branch, as such trustee, on December 28, 1883, received into his hands, custody, care, and charge the sum of $20,767.11 of the trust fund of which said Florence (now deceased) was and is the beneficiary, and that upon her death as aforesaid, and when plaintiff took charge of the estate of said Florence, said Branch was lawfully required to account for said sum, and pay the same, together with interest, to plaintiff, but that he failed and refused so to do. Judgment is prayed in accordance with the premises. The answer of defendant, James Green, who is one of the sureties on said bond and the appellant herein, is a general denial, and further avers that, prior to the commencement of said suit, said Branch, as such trustee, had accounted for and paid over to said Florence E. Garrison and her estate all sums of money due from him by reason of his relation to her as trustee. A general reply was filed to said answer. Branch, as principal, and Robert E. Brown, as co-surety with appellant, were also named as defendants in the petition; but the cause was dismissed by plaintiff, as to said parties, preceding the trial.

Upon the trial the plaintiff, in order to sustain the issues on his part, proved his title to the office of public administrator of St. Louis, and qualification as such; the death of Florence E. Garrison; the order of the probate court directing him to take charge of the estate of Mrs. Florence E. Garrison, deceased, upon the application of one of her heirs. He also proved that Mrs. Garrison was Florence E. Crookes, the daughter of Joseph W. Crookes, deceased. He then read in evidence the following order of the circuit court of the city of St. Louis: "Tuesday, November 13, 1883. In the matter of Florence Eliza Crookes. Now, at this day, comes Florence Eliza Crookes, in her own proper person, and submits to the court the petition filed herein, and moves that Joseph W. Branch be appointed as her trustee; and the court, having examined said petition as to said application, and she now in open court admitting that said application is made by her, of her own free will, and that the facts set forth in said petition are true, being fully advised, finds (1) that on November 1, 1874, Joseph W. Crookes, the father of her, the said Florence Eliza Crookes, died, leaving a will, which was thereafter admitted to probate in the probate court of the county (now city) of St. Louis, wherein he devised to her certain property, appointed a curator for her during her minority, provided that upon her attaining her majority her said curator should turn said estate over to her trustee, to be held by him for her sole and separate use and benefit, to be used and enjoyed by her free from any management or control of any husband which she might at any time have; (2) but that her said father did not appoint or make any provision for the appointment of a trustee for her; (3) that she, the said Florence Eliza Crookes, has attained her majority; (4) that her curator holds estate amounting to $20,767.11, subject to the order of her trustee when appointed; and the court being of opinion that, in the exercise of its chancery powers, it may make the appointment prayed, and that the same should be made, it is therefore ordered by the court that Joseph W. Branch, of the city of St. Louis, be and he is hereby appointed trustee, with all the powers and authority in and by said will vested in the trustee of her, the said Florence Eliza Crookes, and said Joseph W. Branch here, in open court, accepts said trust, and files his bond in the sum of forty-two thousand dollars, with Robert B. Brown and James Green as sureties, conditioned for the faithful discharge of said trust, which bond the court now approves." Plaintiff then introduced said bond, which is as follows: "Know all men that Joseph W. Branch, as principal, and Robert B. Brown and James Green, as securities, are held and firmly bound unto Florence Eliza Crookes in the penal sum of forty-two thousand dollars, lawful money of the United States, to the payment whereof they bind themselves, their heirs, executors, and administrators, firmly by these presents. Sealed with their seals at the city of St. Louis, state of Missouri, this 13th day of November, A. D. 1883. The conditions of the above obligation are such that, whereas, the said Joseph W. Branch has on this day been appointed trustee of said Florence Eliza Crookes, now, therefore, if said Joseph W. Branch shall well and truly perform his duties as such trustee, and shall account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee, then the bond to be void; otherwise to remain in full force and virtue. [Signed] JOSEPH W. BRANCH. [Seal.] ROBERT B. BROWN. [Seal.] JAMES GREEN. [Seal.]" Plaintiff next offered in evidence a paper shown to have been signed by Joseph W. Branch, which reads as follows: "$20,767.11. St. Louis, Dec. 28th, 1883. Received of Joseph W. Branch, curator of Florence Eliza Crookes, twenty thousand and seven hundred and sixty-seven and 11-100 dollars, as her estate in full. [Signed] JOSEPH W. BRANCH, Trustee of Florence Eliza Crookes-Garrison." Defendant objected to the admission of said paper because it was not an official act, but an ex parte and voluntary statement of the trustee subsequent to the execution of the bond, and therefore not competent as against the sureties. Said objection was overruled, and defendant excepted. Plaintiff also offered in evidence the will of the late Joseph W. Crookes, and the settlement made by Branch as curator of Florence in the probate court on July 1, 1881; but, upon objection of defendant, said instruments were excluded. A formal demand by plaintiff on Branch, as trustee, for the balance alleged to be due, and his failure to respond, were also shown. Plaintiff then rested; and defendant offered an instruction in the nature of a demurrer to the evidence, which was refused by the court, and defendant excepted.

Defendant thereupon called to the witness stand Joseph W. Branch himself, who testified to the effect that Florence Crookes (who afterwards married Garrison) was his niece; that he qualified as her curator after the death of her father, which occurred in November, 1874; and that, at various dates during the interval between 1875 and 1880, he, as her curator, received from the executor of her father's estate sums of money aggregating about $20,000, which sums, when received, he entered to the credit of his individual account; and that he invested and used the entire amount on his own account, and in his own private business enterprises, except the sum of $4,000, which in 1879 he invested in a loan for five years to Mr. Alexander, secured by deed of trust, and which was repaid to him by Alexander in May, 1884. In regard to this Alexander investment, however, he is very indefinite. He had loaned him $24,000 all together, and the note and mortgage were in his individual name. He says "he calculated $20,000 of it for Alice, and $4,000 for Eliza." No further explanation is given why h...