89 Mo. 470 | Mo. | 1886
Lead Opinion
In 1871, Joseph H. Locke was found to be of unsound mind, and incapable of managing his affairs, and, thereupon, the probate court of St. Louis county appointed Jones guardian of his person and estate. The guardian gave bond as required by law. By order of that court, Jones gave a new bond in April, 1874, with Howard and others as sureties. In 1878 the court ordered the guardian to procure and file another bond, and for failure to comply with that order the court revoked the former appointment, and appointed R. D. Lancaster guardian of the insane person. The deposed guardian failed to make settlement of his accounts, and Lancaster brought this suit on the second bond, assigning various breaches. Locke, it appears, at and prior to the inquisition, had been engaged in selling cement and lime, and'.in manufacturing lime ; the business had a reputation of considerable value. Jones, as guardian, in addition to collecting debts due to and paying
1. The referee and court denied any compensation on the volume of business done, on the theory that the guardian had no right, with or without an order of the probate court, to carry on the business of the ward, and that every dollar thus invested was a breach of trust. That the guardian conducted the business with ability and perfect honesty, is not disputed. In determining the powers and duties of a guardian of an insane person, it will not do to follow closely, by analogy, the law with
The power conferred upon the court to make an order for the “management of his estate” must be construed in the light of the other sections, and the nature of the subject matter with which the statute deals. The insanity is often of short duration, and the law contemplates cases where such persons may even make contracts, with the consent of the guardian. Section 5816. When restored to his right mind, it is made the duty of the guardian to yield up the property to his former ward. It is rather the duty of the guardian to protect and preserve the business affairs of the ward than to wind them up. To that end the statute, has invested the probate court with large discretionary powers. In the exercise of these powers the court should not, for any. considerable length of time, continue a hazardous manu
* It has been held that the approval of an administrator’s sale of real estate need not appear by a formal entry; it is sufficient if it appears from the whole record. Grayson v. Weddle, 63 Mo. 525; Henry v. McKerlie, 78 Mo. 430. The annual - settlements and the orders of approval made thereon, in this case, were competent evidence to show, and they do show that the business was carried on under the eye and supervision of the court, and that is sufficient, though no previous order therefor was procured. It follows, from what has been said, that the guardian made no breach of his trust in the matter under consideration. So far as commissions are concerned it does not follow that he is entitled to five per cent, on all disbursements. The statute does not fix the amount of compensation. The rule, made applicable to administrators, would seem to be proper enough as to the collection and payment of debts existing at the date ■of the appointment, but for continuing a business and receiving and paying out moneys in that behalf, reasonable compensation, and that only, should be allowed. Indeed the five per cent, rule should only be adopted when, under the circumstances, it is reasonable for the services rendered.
2. The further claim is that these annual settlements are conclusive. The law is well settled in this state that annual settlements of administrators, and of guardians and curators of minors, are not conclusive. They are subject to review and correction at the final settlement. Picot v. O'Fallon, 35 Mo. 29; State to use v. Hoster, 61 Mo. 544; State to use v. Roeper, 82 Mo. 58; Folger v. Heidel, 60 Mo. 284; Seymour v. Seymour,
3. The next question is whether these sureties on the second bond should be held liable for any excessive ■commissions retained by and allowed to the guardian in the previous annual settlements. The probate court has
4. Other exceptions were taken to the report of the referee because of a refusal to allow certain notes and due-bills as a credit, which came to the guardian when first appointed, and which, it is claimed, could not be collected with diligence. The-difficulty, and it seems to be recognized by counsel for defendants, arose fiom the peculiar state of the pleadings, and the failure of defendants to make proof of the matters alleged in the answer and put in issue by the reply. As the judgment must be reversed and the cause remanded for new trial, for the reasons before stated, this exception need not be considered. The proof can be made and the pleadings reformed if desired. . The judgment is reversed and the cause remanded for a new trial.
Dissenting Opinion
Dissenting. — I do not concur in one point of the foregoing opinion. It has always been my understanding of the matter, that probate courts were creatures of the statute, and could do nothing except where the statute gave power so to do; and even where they have jurisdiction to act, such jurisdiction
The majority opinion seems to rest upon cases where an informal approval of an administrator’s sale of land has occurred. I take it that there is wide distinction between that class of cases and the present one. There the order of sale was regularly made after the taking of all' necessary precedent steps; the sale occurred with the observance of all legal formalities, and the only question was whether approval of the court had sanctioned the sale. The statute in such cases requires no order of approval; approval is manifested in such cases, by the failure to order a new sale (sections 168, 169), and by acts and entries repugnant to the idea of approval. Here, on the contrary, no order at all is made, but reliance is sought on the approval of an act confessedly unauthorized when done. It has been expressly held by this court, that without an order of sale was made, an approval of such sale was a nullity. Evans v. Snyder, 64 Mo. 516. Now, if it be true that probate courts must exercise their jurisdiction in the manner prescribed by law, and that law requires that an order be made that a given act be done, subsequent approval of the act will not answer in lieu of prior authorization; and it makes no matter what the char