Estate of Padgett v. Smith
89 S.W. 886
Mo. Ct. App.
1905
Check Treatment
NORTONI, J.

(аfter stating the facts). — 1. The principal contention of plaintiff in error is that the circuit court of Schuyler county had no jurisdiction to proceed in the case wherein Jоhn C. Mills was appointed guardian, which was prosecuted to judgment against the curator in that court. With that question we are not concerned in this collateral procеeding. That case is not before this court for review. Under the state of the record before us, we are concerned only with the question of whether or not there was substantial evidence to support the finding and judgment of the trial court in removing the curator under the law as is provided for the conduct of like causes.

2. In speaking of guardians and curators, our statute, section 3498, R. S. 1899, provides among other things, that “the court or judge in vacation shall have power to order them to give supplemental security or а new bond, with sufficient security, upon like notice, for the same causes, in the same manner and with like effect as is authorized by law in the case of administrators, and in default thereof or for other good cause, to remove them, and appoint or admit the choice of others in their stead ” There is no question in this case concerning the ‍‌‌‌​​‌​‌​​‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​​​‌​​‌​‌​​‌‌​‌‌​‌​‍сurator’s bonds. The allegation of the com*313plaint is leveled at mismanagement. Under the statute quoted, the probate court is clothed with power to remove a guardian or curator not only for failure to furnish the supplementary security when required, but as well “for other good causes.” The question thus arises as to what is good cause for removal or what do these general words signify employed as they are in this general grant of power to the probate court? We must hold that the words were employed by the Legislature in this connectiоn with the full knowledge and understanding of the settled law on the subject. It has long since been determined and it is treated as elementary law that the courts, having power to appoint guardians and curators, have likewise, in their supervisory capacity, power to remove them from their trust for gross and confirmed habits of intoxication, any breach оf official duties amounting to misconduct, failure to file inventories or accounts as required by the terms of his trust, using the ward’s funds for the guardian’s own advantage to the ward’s detriment, abandоnment of trust, ignorance or imprudence on the part of the guardian whereby the ward’s interest suffer, waste of the ward’s estate, and the like. [Schouler’s Domestic Relations (5 Ed.), sеc. 316; King v. King, 73 Mo. App. 78.] We must understand, then, that the existence of any one of these well-settled adjudicated causes for removal of a guardian or curator would be good cause within the contemplation of our statute on the subject.

Section 3534, R. S. 1899, provides, among other things, that “any guardian or curator may resign his trust or be removed from office for like сauses and in like ‍‌‌‌​​‌​‌​​‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​​​‌​​‌​‌​​‌‌​‌‌​‌​‍manner and with like effect as in the case of an executor or administrator.” Thus we are referred to the administration law for additional light on the subject.

The administration law, section 42, R. S. 1899, provides :

“If any executor or administrator become of un*314sоund mind, or be convicted of any felony or other infamous crime, or has absented himself from the state for the space of four months, or become an habitual drunkard, or in аnywise incapable or unsuitable to execute the trust imposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any coexecutor or coadministrator, the court, upon complaint in writing made by any person interested, supported by affidavit and ten days’ notice given to the person complained of, shall hear the complaint, and if it finds it just shall revoke the letters granted.”

By this section, waste or mismanagement of the estate are made suffiсient cause for removal of guardians or curators as well as of administrators or executors. The complaint in this case charges mismanagement of the estate in terms and specifies the wrongful appropriation of $1,400 of the ward’s funds without authority of the court in that behalf as an instance of such mismanagement, and indeed, the evidence in support thereof is not only substantial but is abundant to sustain the finding of the court thereon. It has been judicially determined by our Supreme Court that for a curator to thus apprоpriate his ward’s means to the purchase of lands without the sanction of the probate court, is a devastavit. [West v. West, Admr., 75 Mo. 204; Steel v. Holladay, 20 Ore. 70; 3 Williams on Executors (7 Amer. Ed.), 321, 322.] This is the settled and determined law on the subject thrоughout those jurisdictions where the common law obtains, and should be so, else trust funds in such cases would ever be insecure and the substance of the helpless would be mismanaged and wasted not only to the detriment of the ward, but to the utter chagrin and humiliation of civilized society which has sought to provide a manner for their safe-keeping and proteсtion. The American & English Ency. of Law, vol. 15 (2 Ed.), at page 80, states the law ‍‌‌‌​​‌​‌​​‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​​​‌​​‌​‌​​‌‌​‌‌​‌​‍to be: “Any mingling by the curator of the ward’s funds with his *315own by which their identity is lost, or any nse of such funds for his own benefit, is a conversion.” [geе also 3 Williams on Executors (7 Amer. Ed.), 321-322; Schouler’s Domestic Relations (5 Ed.), sec. 316; 9 Amer. & Eng. Ency. Law (2 Ed.), 416.]

The evidence in this case shows conclusively that the curator wrongfully appropriated $1,400 of the ward’s funds to the purchase of the lands mentioned without any authority whatever from the probate court in that behalf. This, of itself, was a conversion amounting to a devastavit, and afforded sufficient grounds for his removal from the trust theretofore reposed in him, and upon such showing, the court would indeed have been derelict in its duty had it not made such order of removal. The fact that the executor, a year afterwards, placed a deed of trust for $1,400 among the assets to make this good, cannot help the matter in this procеeding. The law will not permit men occupying positions of sacred trust to thus play fast and loose with the assets of the estate.

3. It is further shown that the curator was contending that he owned the interest in the land purchased, by the investment of $1,275 of the means of Mrs. gmith, his deceased wife, the ward’s mother. He was thus asserting a claim adverse to the interest of the ward whose interest it was his duty to protect, and this matter was then involved in litigation, pending in gchuyler county. It is not our province to pass upon the merits or demerits of the claim as thаt case is not before us and we express ‍‌‌‌​​‌​‌​​‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​​​‌​​‌​‌​​‌‌​‌‌​‌​‍no opinion thereon, but it is patent from the record here that there is a conflict of interest between the ward and the curator therein and for this reason the curator should be removed, if for no other, gection 42 of the administration law, supra, which, by section 3534, supra, is made to apply to сurators as well as executors and administrators, provides that “if any executor or administrator become ... in anywise incapable or unsuitable to execute the trust reposed in him,” he *316may be removed, etc. The Court of Appeals of Kentucky, in a case almost on all fours with this phase of the case at bar, said: “It is directly charged that he was asserting a claim as survivor of his deceased wife to rights belonging to and claimed by his ward as part of her deceased father’s estate, and this is not denied.” In declаring the law on these facts, the court said: “When he assumed the attitude and asserted a claim hostile to the interests of the ward, the fact that he was a stranger in blood tendеd to fortify the-conclusion that he had become evidently unsuited for a faithful discharge of his duties as guardian, and unfit for the position.” [Winsor v. Macatee, 2 Metc. (Ky.) 430.] That the same person should not be permitted to act in a fiduciary capacity under the jurisdiction of the probate court and represent interests which are hostile to eaсh other, seems to be well settled by our Supreme Court in State to use Miller v. Bidlingmaier, 26 Mo. 483, and Clark et al. v. Crosswhite, 28 Mo. App. 34.

4. It is contended that the grandfather, the next of kin, standing in loco parentis to the ward and in the event of the ward’s prior dеath, his heir, was not a “party interested” within the purview of section 42, B. S. 1899, and therefore cannot maintain this proceeding. It is not necessary' to pass upon .the question as to who is a party interested within the purview of that statute in the state of the record before us, inasmuch as the curator appeared in the probate court and, uрon a decision against him, appealed therefrom to the circuit court and contested the merits of the complaint, whereupon the facts appearing as disclosed by the record, it was the duty of the court to remove him from his trust on its .own motion whether the grandfather was an interested party or not.

The judgment was clearly right and should ‍‌‌‌​​‌​‌​​‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​​​‌​​‌​‌​​‌‌​‌‌​‌​‍be affirmed. It is so ordered.

Bland, P. J., and Goode, J., concur.