73 Mo. App. 78 | Mo. Ct. App. | 1898
This is a proceeding which originated in the probate court of Saline county, having for
The appellant assails the judgment on the ground that the proceeding was irregular and unauthorized by law. Section 26, Revised Statutes 1889, provides that if any heir, legatee, creditor, or other person interested in any estate, file in the probate court an affidavit stating that the affiant has sufficient cause to believe and does believe that the security in the executor’s or administrator’s bond has or is likely to become insolvent, or has died, or has removed from the state, or that the principal in such bond has or is likely to become insolvent, or is wasting the estate, or that the penalty in such bond is insufficient, or that such bond has not been taken according to law and shall have given the principal in such bond at least ten days’ notice of the complaint, the court shall examine into the complaint. And the next succeeding section (27) for the' same causes authorizes a similar proceeding by a security against bis co-security or the principal in the bond. And it is further provided in another section (28) that if the court shall find for the complainant under either of the preceding sections referred to, it shall- order another bond with sufficient security to be given and for failure to give such bond it shall revoke the letters (section 30).
Section 5299, Revised Statutes, provides that the court or judge in vacation shall have power to order every guardian and curator to give supplemental security or a 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
This is not a proceeding to require the guardian to give additional security or another bond, but to remove him from office for misconduct in the execution of his trust. The statute relating to guardians and curators already quoted not only provides that a guardian or curator may be removed if they fail to give bond when so ordered by the court, but they may be removed for other good cause. What is other good cause and what is the proceeding to remove a guardian or curator for such good cause'? While the language of the statute is somewhat obscure in its meaning and wanting in clearness of expression, yet we must think it was the intention of the lawmakers that it should apply to a proceeding of this kind, in so far as it relates to the requirement of notice and the complaint specifying the ground of removal.
In section 141 of Field on the Law of Infants, Parent and Child, Guardian and Ward, it is stated: “The court having competent jurisdiction of the case, always has power to remove any guardian for good and sufficient cause. If on a proper application to the court and due notice to the guardian, or his appearance on such application, it appears that there has been an abuse of the trust, he will be removed.” The chancery court may remove a guardian whenever he abuses his trust or the interests of the ward require it. And so, too, probate courts may summarily remove guardians of their own appointment for good cause. But no removal can be had without good cause shown.
Among the causes which have been deemed sufficient for removal of a guardian are these: Gross and confirmed habits of intoxication. Any breach of offi
The complaint charged that affiants have reason to believe that said guardian is likely to become insolvent and is wasting the estate of said minors; that said guardian is not faithfully discharging his duties according to law and the conditions of his bond as guardian in this: That is, on the —:- day of June, 1895, the said Will R. King, as guardian of said minors, made his first annual settlement, and that said settlement showed a balance due from said King as guardian aforesaid amounting to $418.73; that it was the dirty of the said guardian to loan the amount so found due at the highest legal rate of interest that could be obtained on prime real estate security, and that both prior and subsequent to said settlement he has wholly failed and neglected so to do, and at the time of making said settlement failed to report his inability so to do; that subsequent to the date of said settlement said Will R. King, as guardian as aforesaid, has received large amounts of money which he has failed, neglected and refused tq loan as required by law; that the money received as aforesaid has not been used in improving the real estate of said minors; that they believe that the said Will R. King has and is now using the said money received as aforesaid for the transaction of his own business; that the
An examination of the evidence has convinced us that it is sufficient to warrant the finding and judgment of the trial court. The notice was signed by the three minors. One of them appears to have been under fourteen years of age and her name was signed by her next friend. If the notice was defective in any material respect, any objection that the appellant might have urged thereto was waived by his voluntary appearance to the proceeding. The court was invested by the statute with jurisdiction of the subject-matter and the voluntary and unlimited appearance of the appellant to the proceeding gave the jurisdiction of his person, so that the jurisdiction rightfully extended to both subject-matter and the person of the appellant. Schouler, Dom. Rel., sec. 317; Carter v. Wamack, 64 Mo. App. 338.
The rule is well settled that the probate courts are allowed a liberal discretion over removals, and their decisions will not be reversed on appeal unless palpable injustice has been done. Schouler, Dom. Rel., sec. 317, sivpra, and cases cited in note 2.
No error is perceived in the action of the court in refusing defendant’s instruction which is in the nature of a demurrer to the evidence. The judgment will be .affirmed.
