State ex rel. Brent v. Grace's Administrator

26 Mo. 87 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

It is true that there is no privity between Garesché, the administrator of Grace, who was guardian of the minor Eliza Brefit, and the plaintiff, who is the successor of Grace as guardian. The administrator of Grace, as such, has no control over the estate which Grace held as guardian. If Grace converted the trust funds in his hands, or incurred a liability to bis ward by the mismanagement of her estate, a claim for such misconduct might be preferred against his administrator, and proceeded with like other demands against a decedent’s estate. But the act of March 3d, 1861 (Sess. Acts, 1851, p. 211) provides that when a guardian or curator dies, the county court may ascertain, in any practicable way, the amount in his hands, and his successor may have such proceedings against his securities as are authorized in cases where an administrator fails, when ordered, to pay demands allowed against an estate. We do not regard this act as restrictive to the remedies provided in the 13th and 14th sections of the 5th article of the administration law of 1845.' There is no reason for so restricting the language of the act. A ward should be entitled to the same remedies for a breach of the condition of the bond given to secure the management of his estate, that those have who are interested in the estate of a decedent. The 8th section of the 7th article of the administration law gives a remedy, by an action on the bond, to any party injured, for a breach of any of its conditions. We have seen that the act of 1851, to which reference has been made, authorized the county court, in any practicable way, to ascertain the amount in the hands of the deceased guardian. It is no objection that the court made use of the administrator of G-race for this purpose. No one was more likely to know the situation of his accounts than his administrator, who had access to all his books and papers. The settlement of the accounts of Grace, the guardian, thus made, can not be regarded as the exhibition and allowance of a demand against his estate. The balance, thus ascertained, was binding on the estate of Grace, and created a prima facie liability on the part of his sureties, who might have shown the settlement to be erroneous. (Nolley v. Callaway County Court, 11 Mo. 445.) A sum being found in the hands of the guardian due to his ward, by the provision of the administration law, to which we have already referred, a suit was authorized on the bond. The petition has been examined and we find it like the declaration in the case of Finney et al. v. The State of Missouri, 9 Mo. 624. No demand was averred, and though the declaration was closely scrutinized, it does not appear that any such objection as the omission of a demand was taken. When parties have resisted a claim on other grounds, and have failed, it is with a bad grace that they come into this court and object that no demand was made on them, when every thing in the record shows that if one had been made, it would have been to no purpose.

As the evidence is not preserved in the record, and as no review of the finding of the facts was asked for, we can not go into the question of the sufficiency of the proof to support the finding.

There is no foundation in law fo,r the claim to a set-off made by the defendants, as there was a separate and distinct curatorsliip for each child and a separate bond for the management of each estate. The judgment is affirmed,

the other judges concurring.