127 Mo. 492 | Mo. | 1895
From a judgment rendered in the circuit court, plaintiff appealed to the Kansas City court of appeals, where the judgment was reversed and the cause remanded, but, because of an apparent conflict in the decision of the case by the court of appeals, and the decision of this court in State to use v. Jones, 89 Mo. 470, the case was certified to this court. The case' is reported in 54 Mo. App. 345. The facts, as stated by Smith, P. J., are as follows:
“This was an action at law, based upon a judgment recovered by the plaintiff against Ebenezer D. Frost, who had previously been adjudged insane. The peti
“There was a submission of the case to the court and a separate finding of facts and conclusions of law by it, which (omitting the facts admitted by the pleadings) was as follows: ‘That there came into his hands, as such guardian and curator, prior to the commencement of this suit, in cash and other personal property, the sum of $4,216.25. That this suit is based on a debt existing, due and owing by said E. D. Frost to plaintiff N. B. Frost at the time he was so adjudged insane, which was reduced to judgment in this court on the seventeenth day of February, 1891, in a suit thereon against Ebenezer D. Frost, to which action said defendant herein (Bedford) appeared and defended as guardian, and the amount of said judgment was $2,353.75, bearing interest at the rate of six per cent, per annum.
“ ‘The court further finds that in December, 1888, or at least prior to January 29, 1889, the date of sale, plaintiff N. B. Frost gave the said defendant Bedford notice of said demand so due and owing by said E. D. Frost and demanded payment thereof, which demand was refused by said Bedford; that, at the-time said E. D. Frost was adjudged insane, he was indebted to and owing divers parties, including this plaintiff, in the aggregate, the sum of $12,069.05. It does not affirmatively appear whether there were any other debts or not;
“ ‘That the defendant Redford has never paid anything to this plaintiff on said demand, nor on the judgment aforesaid; that the same and every part thereof is still due and owing.
“ ‘On the foregoing facts found and the pleadings in the case, the court declares the law to be that, this is an action at law against defendant Redford as a trustee in charge of a trust fund liable to be applied in payment of plaintiff’s demand, and not against him as guardian. That the report of the probate court of his skid disbursement and the approval of the same by the court precludes plaintiff from recovering in this action,
It will be observed that the petition contains no allegation of fraudulent conduct on the part of defendant as guardian, in failing and refusing to pay his demand pro rata, as he did other creditors, but the action is predicated of the fact alone that it was his legal duty to do so, and, because of' his failure, he is personally liable to plaintiff for the amount to which he was thus entitled, and that he should have judgment against him therefor.
The statute in regard to insane persons makes no provision as to the order in which demands against such persons shall be paid, but by section 5530, Revised Statutes, 1889, it is provided that “it shall be the duty of every such guardian to prosecute and defend all actions instituted in behalf of or against his ward; to collect all debts due or becoming due to his ward, and give acquittance and discharges therefor, and to adjust, settle and pay all demands due or becoming due from his ward, so far as his estate and effects will extend, as hereinafter provided.” Then follows a number of sections which pertain to real estate when owned by by such persons, but, as the ward in this case was not the owner of any such property, they have no bearing upon this controversy.
By section 5545, Revised Statutes, 1889, it is provided that in case the estate of such insane person shall
An insane person who is the head of a family, is entitled to precisely the same exemptions under our statute as a sane person similarly situated, and no more, and his debts must be first paid, after allowing such exemptions, before anything can be kept out of what remains of his estate to maintain the ward and his family or- for the education of his children. He continues to be the owner of the property and may sue by his guardian, be sued and defend by his guardian, an execution may be issued against his property. E. S. 1889, sec. 5544. His property rights, and rights under the exemption laws, were not changed by reason of ■ his being declared insane s and placed under guardianship.
There is no pretense that defendant had, at the time of the commencement of this suit, any money or property in his hands belonging to his ward over and above the amount of $1,000, which he was ordered by the probate court to keep and set apart for the care and keeping of his ward, the support of his family and the education of his children. Whether or not that court had the power to make any such order until after all the creditors had been paid, defendant should be protected in complying with it, so long as it remains unchallenged. It was competent evidence to show, and does show, “that the business was carried on under the eye and supervision of the court, and that is suffU cient.” State to use v. Jones, 89 Mo. 470.
No one will question the right of defendant’s ward to have preferred any one or more of his creditors before he became insane, and his guardian, in the absence of
It follows, from what has been said, that the-guardian committed no breach of his trust by reason of the causes assigned in plaintiff’s petition. The judgment of the court of appeals is reversed and the cause remanded to that court, with directions to enter up judgment affirming the judgment of the circuit court.
