Veterans Administration v. Boles

• Decision Date: 19 June 1933
• Docket Number: No. 5226.,5226.
• Citation: 61 S.W.2d 757
• Parties: VETERANS ADMINISTRATION, FORMERLY UNITED STATES VETERANS BUREAU, APPELLANT, v. CLARENCE C. BOLES, INCOMPETENT, R.S. HOGAN, GUARDIAN, RESPONDENT.
• Court: Missouri Court of Appeals

61 S.W.2d 757

VETERANS ADMINISTRATION, FORMERLY UNITED STATES VETERANS BUREAU, APPELLANT, v. CLARENCE C. BOLES, INCOMPETENT, R.S. HOGAN, GUARDIAN, RESPONDENT.

No. 5226.

Springfield Court of Appeals. Missouri.

June 19, 1933.

Appeal from the Circuit Court of Oregon County. — Hon. John E. Duncan, Special Judge.

REVERSED AND REMANDED.

V.E. Willis and H.L. Songer for appellant.

H.D. Green and A.W. Landis for respondent.

SMITH, J.

This is an appeal from a judgment of the circuit court dismissing an appeal from the Probate Court of Oregon County. The probate court had overruled exceptions to an annual settlement filed in said court by R.S. Hogan, guardian of a war veteran.

The facts are simple. Clarence C. Boles is a veteran of the United States Army. He was adjudged insane by the Probate Court of Oregon County, Missouri in September, 1922, and Dora Boles, his mother, qualified as his guardian in said court and acted as his guardian until in August, 1930, when she resigned, and R.S. Hogan was appointed at that time and has been the duly acting guardian since his appointment.

The record before us is rather incomplete, but from compensation and insurance, one or both, due Clarence C. Boles, the guardian had received and had in his possession on August 11, 1931, $12,518.04 belonging to the veteran. The record before us does not show what amount of this, if any, was received from the former guardian at the time of Hogan's appointment, nor does the record show what amount had been received by him within the year preceding the annual settlement in question, but the exceptions state that "Clarence C. Boles is now receiving and for a number of years has received benefits from the Veterans Bureau, now the Veterans Administration, and that this estate was derived in this manner."

In his annual settlement filed in the probate court on August 11, 1931, R.S. Hogan as guardian took credit for and charged the estate with five per cent of $12,518.04 as his commission, amounting to $625.90.

On February 1, 1932, the Federal Administration through its attorney filed in the probate court the following exceptions to the charge of the guardian, caption and signature omitted:

"Comes now H.L. Songer, acting regional attorney, Veterans Administration, and duly authorized attorney of Frank T. Hines Administrator of the Veterans Administration, with offices at Kansas City, Jackson County, State of Missouri, an interested party, in accordance with Section 21 (2) of an Act of Congress known as the World War Veterans Act (U.S. Statutes, Volume 44, Part 11, page 792) as amended by the Act of May 29, 1928 (Public 585, 70th Congress) which, in part, provides as follows:

"`Section 21 (1) That where any payment under this Act is to be made to a minor, other than a person in the military or naval forces of the United States, or to a person mentally incompetent, or under other legal disability adjudged by the court of competent jurisdiction, such payment may be made to the person who is constituted guardian, curator, or conservator by the laws of the state of residence of claimant; or is otherwise legally vested with the care of the claimant or his estate... .'

"`(2) Whenever it appears that any guardian, curator, conservator, or other person is not in the opinion of the director properly executing the duties of his trust or has collected or is attempting to collect fees, commissions, or allowances that are inequitable or are in excess of those allowed by law for the duties performed or expenses incurred, or has failed to make such payments as may be necessary for the benefit of the ward or the dependents of the ward, then and in that event the director is hereby empowered by his duly authorized attorney to appear in the court which has appointed such fidiciuary and make proper presentation of such matters to the court; Provided, that the director in his discretion may suspend payments to any such guardian, curator, conservator, or other person who shall neglect or refuse, after reasonable notice, to render an account to the director from time to time showing the application of such payments for the benefit of such minor or incompetent beneficiary.'

"Section 606 of the Revised Statutes, State of Missouri, is as follows:

"`Sec. 606. Bureau to have notice, when — In all cases wherein a guardian has been appointed, or may hereafter be appointed under the laws of this State, for any person entitled to money benefits from the United States veterans' bureau, said bureau may enter its appearance in writing, providing it maintains an office in this State and thereafter shall be entitled to ten days' notice of all applications, citations, notices, motions, petitions, annual settlements, or final settlements filed by any person in such cases. Said notice so required shall consist of a copy of such pleading filed, together with a statement containing the date the matter is set for hearing, and shall be mailed by registered letter to the official of the United States veterans' bureau whose name and address is contained in the entry of appearance. The probate court shall not take up for hearing any pleading so filed until proof of the service of such notice has been made.'

"Section 607 of the Revised Statutes, State of Missouri, reads as follows:

"`Sec. 607. Compensation of Guardians — The compensation allowed to guardians of such persons entitled to money, benefits from the United States veterans bureau shall not exceed five per cent of the income of a ward during any year.'

"Your petitioner further advises the court that Clarence C. Boles is now receiving and for a number of years has received benefits from the Veterans Bureau, now the Veterans Administration, and that this estate was derived in this manner.

"Your petitioner respectfully shows that R.S. Hogan, on the 14th day of August, 1930, was duly appointed guardian of the person and estate of Clarence C. Boles, an insane person, by the Probate Court of Oregon County Missouri; that from and since that date R.S. Hogan has been exercising his duties as guardian of the person and estate of Clarence C. Boles; that entry of appearance in writing has been entered in this case as provided by sections 605 to 607 of article 22 of the Revised Statutes of Missouri, 1929; that your petitioner objects and excepts to the account of R.S. Hogan examined, approved and filed the 11th day of August, 1931, and recorded in Book 5 at page 251, for the reason that this administration was not served with notice as provided by section 606 of the Revised Statutes of Missouri, 1929; that the item of the guardian's commission as shown and allowed in said report, `May 11, 1921, by guardian's commission, five per cent on $12,518.04, $625.90, is improper and contrary to law; that said guardian's commission is unreasonable and improper and the court was without authority to allow a commission in the amount of $625.90; that in cases of this kind when the estate is derived from the Veterans Administration the probate court can in no event allow just and reasonable fees in excess of five per cent of the income of the estate during the calendar year; that the income of this estate was not $12,518.04 during the calendar year.

"Therefore, the court erred in allowing the excess commission. From the facts shown in this case it is believed that a fee of five per cent of the income of the estate during the year would be unfair, unreasonable and excessive for the work done by the guardian.

"Wherefore, your petitioner objects and excepts to the allowance of $625.90 as commission to the guardian for the reasons above stated and requests this court to issue an order to show cause why the compensation of said guardian...