Cohen v. Atkins

73 Mo. 163 | Mo. | 1880

I.

'Sherwood, C. J.

The appeal was taken in time, being taken at the term at which the judgment was really rendered and the claim allowed against the estate. The proceedings first had in the county court only resulted in a computation being made as to the amount due from the curator to his ward. Considered as a claim against the curator’s estate, that claim could not be regarded as complete; could not, under the statute, be allowed and classified against the estate until the proper affidavit was made, which was not made till the second term after the computation‘was had by the court as to what was the amount with which the estate should be charged. When that affidavit was filed, then the claim was classified and allowed; thus became a judgment, and then, and not before, was the appeal taken, nor could it have been taken prior to that time.

MI.

Under the law as it existed prior to the revision of 1855, it was competent for the county court, upon the death of a curator, to summon the legal representative of the deceased curator, anu ascertain the amount of the ward’s assets in the hands of the curator, at the time of his death, section 11, page 211, Session Acts 1851, authorizing the county court to ascertain such amount “ in any practicable way,” etc. And so it was ruled in State v. Grace, 26 Mo. 87; and further, that the settlement thus made with the legal representative of the deceased curator could be made the basis of a suit on the bond of the curator, and was prima facie evidence of the liability of his sureties on such bond. But that useful statute passed out of existence with the revision of 1855, and has never been re-enacted, except to a certain extent by section 2614, R. S. 1879. So that the proceeding in the county court in the present ease, whereby the executrix was summoned and a settlement endeavored to be made with her as such executrix, did not possess the sanction of statutory authority, and, therefore, must be regarded as coram non judice.

III.

If that proceeding is to be thus regarded, and it was, as seems to be evident from the record, made the basis for the claim thereupon presented by the plaintiffs for allowance, such allowance would manifestly possess no greater legal validity than the proceeding whereon it was bottomed. When the curator took possession of his ward’s estate and gave bond as required by law, that bond thereupon constituted the basis aud measure of his legal liability. The remedy of his ward was thenceforward, two-fold: 1st, By putting the machinery of the county court in motion to compel her curator to make annual settlement, and then a final settlement. Gen. St., §§ 42, 48, 50, pp. 471, et seqs. 2nd, An action on the bond for any breach of the conditions thereof. But any proceeding had against the curator could only have been had against him in his official, and not in his individual capacity. Eor illustration, he could not have been sued as an individual for conversion of the property of his ward, nor for money had and received belonging to his ward. The only method of redress would have been those already pointed out. If he could not, while in full life, have been sued as an individual of and concerning anything touching his curatorship, nor proceeded against in the county court, except in his official capacity, with the view of compelling settlement, most assuredly the remedies against him in that regard would not be enlarged as a consequence of his death, unless special statutory provision to that effect existed. If the foregoing positions be correct, then it results that any liability incurred by the curator during his life, could not be enforced after his death by having a claim allowed in the ordinary way against his estate, but only by a suit on his bond.

IV.

And even if a claim could be allowed against the estate of the curator, as a mere ordinary claim is allowed, for a liability incurred as a mere individual, it is clear that, as ruled by the circuit court, the statute commenced to run as to that portion of the indebtedness which accrued prior to June 20th, 1869, when the ward attained her majority, and from that date. If, however, a suit had been brought on the bond for all the breaches thereof, down to the time of the curator’s death, as was perhaps the proper course, inasmuch as no final settlement had been made of the ward’s estate, it may be a different ruling in such case ought to prevail as to the matter of the statute of limitations, a point which it is not now necessary to rule. Eor the reasons aforesaid, the judgment will be affirmed.

All concur.