15 Mo. 225 | Mo. | 1851
delivered the opinion of the court.
This was a bill in chancery filed in February, 1848, by John A. Trimble and Elizabeth his wife, against the appellants. The bill substantially charges, that the said Elizabeth, whose maiden name was Reid, in the year 1839 or 1840, was a minor, residing with her friends in Kentucky; that she possessed about $200 which was in the hands of her guardian. Unwilling to diminish her small patrimony, her friends, charged her little or nothing for board; that about this time A. P. Old-ham, a relation of hers and a resident of Monroe county in this State, came to Kentucky and proposed to her to.go home with him and live in hás family, as he desired her company for his wife; that he would take her to Missouri and she should be treated as one of his own children, free of any expensé, so long as she pleased to remain with him, and that he would gratuitously act as her curator; that she accepted this proposition and accompanied Oldham to Missouri, in whose family she lived until some time in September, 1844, performing such duties as were appropriate for one in her situation; that in June, 1845, the said John A. Trimble and the said Elizabeth were married; that in September, 1840, by appointment of the county court of Monroe county, the said Oldham became curator and guardian of the said Elizabeth, and pursuant to law executed a bond with Jesse Oldham and Hudson Bfroaddus as his securities; that in the year 1840 or ’41, the said Oldham received as curator, from her former guardian in Kentppky, about the sum of $201 64; that in 1842 he made a settlement of his -accounts as curator and charged himself with the sum. of $185, which was alleged to have feeed received from her guardian in Kentucky; that in February, 1844 another settlement was. made, in which he, against all his promises and assurances, fraudulently and without any vouchers charged the said Elizabeth with the sum of $185 for ftboard and clo tiling fa r four years, e$id bringing her frém Kentucky, and for home, saddle, and bridle,
The answer, of Oldham admits that he brought the complainant Elizabeth. from Kentucky, in the early part of the year 1839, and by her election became her guardian and curator and executed the bond as stated in the bill; that he was induced to become her curator, because it was-represented here, that her guardian in Kentucky was-in failing circumstances; that to obtain-the money to which the said Elizabeth was entitled in Kentucky, he went thither at' a* time little suited to his convenience and found her guardian charged with about $200, subject to some claims- amounting to about $15, which being deducted left the sum of $185, with which he charged himself as stated in the bill; that said Elizabeth lived in his family four years and* was provided with board, lodging, clothing, medical attendance, &.c.,.and¡w-as; seift to the singing school at his expense;, but he is not aware of' her rendering any serviee to-his family, as an equivalent therefor; that said Elizabeth’s friends in Kentucky were his.mother, who was a. widow, and encumbered with a large family, and the complainant’s step-mother, who having taken a younger sister of the complainant, to live with her, was unwilling to support said complainant; that for these reasons he brought her from Kentuckjn He admits the last settlement as charged in the bill, but although it. was out of time, he denies that it was fraudulent. He alleges that he has no. recollection of having made any promise to the said Elizabeth, that she should live in his family free of all charge; that, he may have said that, he was as able to support her as any other connexion, and if she never got any thing, he should never charge her. That said complainant'has received a negro girl from her-father’s estate. He admits the marriage of the complainant.
Broaddus, in his answer, admits that he was security in the bond off Oldham as curator.
No notice 'is taken of the ero&s bill and answer, because the matte® they eontain is all involved in the original bill and answer.
John A. Trimble* one of the complaints laying died,, the causa stood in- the- name of Elizabeth his wife.
Several witnesses were examined, whosea depositions-sustained: the averments in the complainants bill. ¿li^abe% Reid was about fourteen
The court rendered-.a verdict for the complainant for the sum of $85, from which the defendants appealed to this court. It has been long settled in this State, that an action on an administration bond may be instituted against -a security before any indebtedness has been previously established or any judgment obtained against the administrator: Devore vs. Pitman, 3 Mo. Rep. 130. This rule, although contrary to that which prevails in some other States, has been too long established now to be overturned. No distinction can be maintained between an administrate r and a curator. In the case before us a settlement of the curator’s accounts had been-made and it appears that he had disposed of and accounted for all of his ward’s estate. This settlement had the sanction of the county court, and was.prima fade correct. But although a final settlement of the accounts of a curator may be made in the county court, yet that settlement will not prevent the ward from filing a bill in equity, surcharging and.falsifying .his accounts. - In the case of Clark and wife vs. Henry’s administrator, 9 Mo. Rep. 839, it was held, that after the final settlement of an administration account, a bill in equity might be filed for the purpose of overhauling the settlement and showing that the administrator had committed a devastavit or fraud in the management of the estate entrusted to his care. If the settlement of the accounts of administrators are subject to the revision of courts
If an action of law had been instituted on the bond the settlement in the county court might have been interposed as a defense, it being equivalent to a judgment of a court of competent jurisdiction. The complainant was then driven to his bill in equity. There is no obstacle in enforcing the liability of the curator in-this form of procedure. The only difficulty is as to the security. The penalty of the bond prescribed a limit to his responsibility. Whatever form- of remedy may be adopted it is clear, that he cannot be subjected to the payment of a sum exceeding the penalty of the bond. But even if the surety was not subject to the mode of proceeding which has been employed in this cause, yet, as the parties had answered, and the cause had1 been tried on its merits, and all the evidence had been heared, it was-too late for the first time to raise the question of jurisdiction as to the-parties. This court has repeatedly held, that if a defendant answer instead of demurring to the bill, and the cause comes on to be heard upon the merits, it is too late to object to the jurisdiction of the court, on the ground that the plaintiff has adequate remedy at law which he might have pursued: Martin vs. Greene, 10 Mo. Rep. 652.
On the merits, the case is clearly with the complainant. From the evidence, there can be no doubt, but that the defendant Oldham induced the complainant to believe that she should live with him free of expense. She was living in a family were she was not charged with board. He induced her to leave that family and reside with him, saying, that he was as able to support her as any of the connexions. If she was not to have been supported gratiutiously, it does not appear, but that the services rendered by her were an equivalent for her maintainance. If Oldham had intended from the first to charge the complainant with the expenses incurred in bringing her to Missouri, why did he not have them allowed at his first settlement, as they were then due? The charge for the horse is manifestly so unjust, that it is of itself sufficient to stamp the whole account with suspicions. The defendant Oldham gave complainant a horse, which she afterwards exchanged with him for another. The horse given in exchange was sold by the defendant and its value never accounted for. Because he, without the consent of the complainant sent her horse to the south and sacrificed him, he cannot, deprive her of his worth in Missouri. It may well be supposed that she was charged with the value of the horse, as esti
Judge Gamble concurring, the decree will be affirmed.