114 Mo. App. 307 | Mo. Ct. App. | 1905
(after 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 John 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 proceeding. 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.
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 causes 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*314 sound 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 anywise 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 sufficient 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 appropriate 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 throughout 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 protection. 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
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 proceeding. The law will not permit men occupying positions of sacred trust to thus play fast and loose with the assets of the estate.
The judgment was clearly right and should be affirmed. It is so ordered.