223 S.W. 1087 | Mo. Ct. App. | 1920
Plaintiffs are husband and wife. They filed a demand for $5394.16 in the probate court of Scotland county against the administrator of the estate of Aaron Hilbrant, an uncle of the plaintiff wife. The probate judge being wanted as a witness, the case was transferred to the circuit court of Scotland county. Afterwards a change of venue was awarded to the circuit court of Macon county at LaPlata. The cause was referred to a referee by the latter court. He made his report awarding plaintiffs a balance of $2308.41. Defendant filed exceptions to the report which were overruled by the trial court and judgment was rendered for the plaintiffs for that amount. Defendant appealed.
It appears that Aaron Hilbrant died in June, 1915. That in June, 1906, he was brought to the home of plaintiffs (the plaintiff wife being his niece). He was sick *192 and so continued for three weeks, during which time he was boarded and waited upon by plaintiffs. That he owned a home of his own consisting of about 90 acres of land. That in the latter part of the summer (1906) in which he had been brought to their house, they moved to his farm with the agreement that they would "take care of him, nurse him and provide for his wants, and were to receive for their compensation that which would be reasonable and just."
Afterwards, during the first part of the second year, being January, 1908, he was declared by the probate court incapable of managing his affairs and a guardian was appointed for him, who took charge of his estate and remained in charge for more than eight years and up to his death in 1915, when defendant was appointed administrator of his estate. That upon the appointment of the guardian in 1908, he and plaintiffs contracted that plaintiffs would board and care for him and provide him with clothing and other necessities and he (the guardian) "would pay them for said services that which would be just and right under the circumstances."
As stated at the out set plaintiffs filed their demand against the estate in the probate court on the 15th of August, 1915. As will be seen from what we have already stated this demand consisted of items which were authorized by the deceased in the years 1906 and 1907. We say authorized by deceased but we do not mean that they were expressly authorized by him, for there was no evidence of that. But as he went to the house of plaintiffs and remained three weeks while sick, an implied promise arose that he would pay them what it was reasonably worth. And the same may be said of the items of the demand arising after he got well and up to the time of the appointment of his guardian. The items of the account after the appointment in 1908 accrued, of course, against the guardian.
A question of limitation arises which involves two points of view, on two parts of the statute. As the demand was filed in the probate court in August, 1915 *193 the items against deceased in 1906 and 1907 under his implied contract, having accrued more than five years before presenting the demand, are barred under section 1889, Revised Statutes, 1909, of the general limitation statute, unless the whole demand is a mutual running account in which case, if the last item is within five years the whole account is saved by section 1893, Revised Statutes, 1909.
Now in our opinion this account being composed of accruing with the deceased in his lifetime before he was adjudged insane, cannot be connected with items accruing against the guardian after he became insane. The guardianship necessarily broke the continuity of the account. There was a change in one of the parties. In Gerard B. Allen Co. v. Mining Co.,
This part of the claim is also barred by the special statute in relation to guardians. In case of an insane person the guardian must take charge of his estate (section 497, Revised Statutes 1909) and all demands against such estate then existing must be presented to the probate court and notice served on the guardian and "All demands not thus exhibited and presented for allowance in two years from publication of notice of the appointment of the guardian shall be forever barred." [Section 498, Revised Statutes 1909.]
The statute just referred to necessarily applies to demands existing at the appointment of a guardian, or, at least, from the publication of notice; and does not comprehend current claims for expense in caring for the ward and his estate during the guardianship.
But the following considerations show that the entire demand should have been disallowed. By reference to the statute of "Guardians and Curators of Insane Persons" (sections 474 to 533, Revised Statutes 1909), it will be seen that proceedings in the estate of an insane person in the hands of a guardian are much like those of estates of deceased persons in the hands of an administrator. The guardian must take charge of the estate, give notice of his appointment, execute a bond, file inventory of the estate and have appraisement made. Demands against the estate of the ward must be presented and exhibited in the probate court for allowance, and, as we have said, those not presented within two years are forever barred; and the guardian is to make final settlement of his accounts. That statute (section 521) contemplates that upon the death of the ward, the guardian shall settle his account with the probate court and deliver the estate to the ward's administrator; and to that end he shall make a just and true exhibit of the account *195 between himself and ward and file the same in the probate court, a copy of which he shall give the administrator with four weeks' notice before the first day of the term of such court when settlement will be made. And at the time specified in the notice, the court shall examine the accounts of such guardian, correct all errors and make final settlement with him.
Undoubtedly accounts against the guardian for expenses of guardianship, under contract with him for services rendered to the ward and to the estate, must be presented to the guardian and included in the settlements made in that court and finally adjusted in the final settlement he makes on the death of the ward, preparatory to delivering the estate to the administrator as required by section 521. It is not within the bounds of probability, or reason, that the statute in relation to the guardianship of wards and their estates, may be ignored at the pleasure of claimants and the settlement of the affairs of the guardianship transferred to the administrator of the estate. The later would be a stranger to the guardianship, the contracts and dealings of the guardian, as well as to the necessities of the ward and to the propriety of action taken by the guardian.
But plaintiffs insist that they may ignore that statute and sue the administrator, as in this case, and cite Reando v. Misplay,
The case of Reando v. Misplay, even under the erroneous construction placed upon it by plaintiffs, should have no influence on this case from the fact that it arose under the statutes of 1865 and 1879, which are essentially different from the present statute in the particulars here involved. Those statutes did not provide for the presentation and allowance of claims in the probate court; The guardian settled claims without allowance. [Sec. 5804, R.S. 1879]; nor did they contain a statutory bar after two years, as by our section 498. Nor did they contain section 521, providing, in detail, for the adjustment and final settlement of all current claims against the guardian for expeses of guardianship; though under the later decisions of the Supreme Court in Coleman v. Farrar,
It is said by plaintiffs that defendant did not plead limitations. The case originated in the probate court where formal pleadings are not required. It is sufficient if the record shows that the party relying on limitations objected to the claim on that account. Even in cases originating in the circuit court, the general statute need not be pleaded by an administrator (Stiles v. Smith,
The judgment should be reversed. All concur.