Frost v. Winston

32 Mo. 489 | Mo. | 1862

Rates, Judge,

delivered the opinion of the court.

In 1836, James R. Erost died in North Carolina, having made his will, whereby he appointed the defendant executor thereof, and his widow Louisa and the defendant (who was brother of the widow) guardians of his two children, of whom the plaintiff is one.

The defendant administered the estate, which was all converted into money. In 1838 the defendant and the widow Frost removed to Missouri, bringing the children with them, and so much of the estate as was then realized, and the remainder was afterward sent to and received by the defendant. Immediately after their arrival in Missouri, William Frost died. The defendant retained the estate and applied portions of it for the benefit of the children, and, when the plaintiff became of age, paid him some considerable sums of money. The plaintiff became of age in 1855, and in 1858 he began this suit, in which he charged that the defendant had received the estate of the plaintiff’s father, one half of which belonged to him (the plaintiff), and that the defendant held it as. his guardian; and admitted that the defendant had paid him several sums of money, the amount of which he did not know, and asked that the defendant should disclose the same, and that he might have judgment against the defendant for the balance. The defendant answered, and among other things insisted that he had fully paid the plaintiff.

The cause was, by agreement of parties, referred to a commissioner.

The referee having heard the cause, reported to the court an account, in which a statement is made of the receipts and payments by the defendant, the items of which are not disputed. In stating the account, the referee computed interest at the highest rate allowed by law each year upon the sum in the hands of the defendant, and added that interest to the principal, and from that sum deducted the amounts expended during the year for the ward, and also a commission which he allowed the defendant of two per cent, on the amount in his hands at the beginning of the year, and the remainder became the principal for the next year, with which he proceeded in like manner; and so of each year to the end of the account.

The result showed an indebtedness of the plaintiff to the defendant of five hundred and seventy-five dollars and sixty-one cents.

Both parties excepted to the report, and the court being of opinion that the referee had erred in computing the interest with annual rests and additions of interest to principal, so as to compound the interest, and also in allowing the defendant two per cent, commission annually, remanded the case to the referee, with instructions to compute the interest at simple interest, and to allow the defendant only one commission of five per cent, on the whole amount in his hands.

The referee reported an account stated in obedience to the instructions of the court, the result of which showed an indebtedness of the plaintiff to the defendant of three thousand and seventy-four dollars and seventy-six cents, for which sum the court rendered judgment in favor of the defendant against the plaintiff. This judgment must be reversed. If a guardian voluntarily disburse on account of his ward a sum greater than the ward’s estate, he has no recourse upon the ward for the overplus unless there be a special promise to pay it. (Wyatt v. Woods, 81 Mo. 351.)

In remanding the cause, it is proper to state that we are of opinion that the mode of computing the interest adopted by the referee in his first report — that is, charging it at the highest legal rate and compounding it — is the correct one. In so doing, it is proper to allow the defendant a liberal commission, because he is not only charged with the highest interest he could get for the money, but, if he have lent it out, is made a guarantor of payment. The amount allowed appears to be reasonable; but, as it is not in our province to judge of that, we must remand the caitse.

At the hearing before the referee, it appeared that in 1850 the defendant had been appointed, in Missouri, guardian of the plaintiff, with a view, apparently, of his managing other property of the plaintiff, but that no such property had come to his hands as such guardian, but accounts against the ward had been allowed in his favor, and that the credits given the defendant by the referee were for the same items allowed the defendant in the Probate Court, and objection was made to their allowance on that account. The objection was overruled, and, we think, properly. The defendant was guardian of the whole estate of the plaintiff, and not merely of that derived from a particular source, and the allowance was a proper credit to him upon all his indebtedness as guardian.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.