West v. West's Adm'r

• Citation: 75 Mo. 204
• Parties: WEST, Appellant, v. WEST'S ADMINISTRATOR.
• Decision Date: 31 October 1881
• Court: Missouri Supreme Court

75 Mo. 204

WEST, Appellant,

v.WEST'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Strong & Mosman for appellant.

When West assumed and charged himself with the balance due from Mrs. Neely, he only did what the law required of him. Allen v. McCullough, 2 Heisk. 174; s. c., 5 Am. Rep. 27; Tyler on Inf. and Cov., §§ 216, 217, 218; 2 Williams Executors, (4 Am. Ed.) pp. 1529, 1561; Schouler Dom. Rel., 105. Nor did his liability expire with his life. 1 Parsons Contracts, (5 Ed.) 344; Tyler Inf. and Cov., § 219; Burton v. Burton, 5 Harr. (Del.) 441. Having assumed the curatorship, the nature of the debt was altered, and from that time it became his own debt. Eaton v. Walsh, 42 Mo. 272; Ex parte Mc Williams, 1 Scho. & Lefr. 173; Goss v. Mather, 2 Lans. 283; Duffy v. Neale, Taney 271.

Wm. Heren for respondents.

HENRY, J.

Mrs. Neely was the curator of the estate of her minor children, and, without an order of court authorizing her to do so, invested about $2,000 of their money in a tract of land, taking a deed to herself and holding the land in trust for said wards. In a settlement made by her as curator, in March, 1872, she charged herself with $7,003.94, and took credit for $1,677.69, leaving a balance against her of $5,306.22. This $7,003.94 included the amount invested in the land. Subsequently, she intermarried with Jas. West, but before said marriage, he agreed with Mrs. Neely, as she and her son testified, in consideration of a large amount of personal property owned by her, that he would pay her indebtedness to her wards. After this intermarriage, West was appointed curator of the estate of said minors, and, in his first settlement as such with the probate court, charged himself with the balance which appeared against his wife in her settlement, $5,306.25, and interest $530.62, and at the conclusion of the settlement he added the following:

“The aforesaid guardian and curator further reports that the balance remaining due said wards, there now being five remaining under age, is invested in real estate by the former guardian, and that he proposes to account for interest on the same at ten per cent per annum, and to pay each ward, when he arrives at full age, the amount then due, all of which is respectfully submitted.

JAMES WEST.”

It seems that he had, before his marriage, borrowed of Mrs. Neely $1,000 of her wards' money, and there was evidence tending to prove that he had paid her all of that debt, except $100, and, that she then destroyed his note. The amount invested by Mrs. Neely in the land above mentioned was $2,100, and this is a proceeding against West's estate, by his widow, as curator, to recover of that estate, with other amounts, the money so invested, and other sums for which Mrs. Neely, as former curator, was liable.

1. CURATOR AND WARD: wrongful investment of ward's funds; husband and wife

Mrs. Neely's investment of the money of her wards in real estate, was a devastavit. Williams on Exrs., vol. 2, p. 1529. By his intermarriage with her, James West became liable for the debts and obligations of his wife existing at the date of the marriage. Tyler on Infancy and Cov., § 216, p. 330. This liability for a debt or obligation of hers ceased at his death, if it occurred before a judgment obtained upon it, unless he assumed it as his own debt in his lifetime. Williams on Exrs., 1561; Tyler on Infancy and Cov., 335. His common law liability is a sufficient consideration for a promise to pay the wife's debt; but here, the evidence shows that he received a large amount of personal property from his wife, under an agreement made before their marriage, that in consideration of said property, he would pay her indebtedness to her wards. His written agreement attached to his first annual settlement, shows that the charge against himself of the balance of her entire indebtedness to her wards, as ascertained by her settlement, was not the result of a mistake, but was in strict compliance with an express verbal agreement, made before their intermarriage.

With regard to the $1,000, if paid to Mrs. West before her intermarriage with West, and she has not accounted for it, his estate is liable for it under the verbal promise made to her by him to pay all she owed her wards, in consideration of the property he received from her. If he paid it to her after he qualified as curator of the children, he is of course liable,...