29 Mo. App. 595 | Mo. Ct. App. | 1888
Lead Opinion
At the conclusion of plaintiff’s case defendant offered an instruction in the nature of a demurrer, which being refused by the court, defendant stood thereon and refused to introduce any testimony. The'action was instituted on a guardian’s bond against W. J. Bradley as principal, and defendant and one other as sureties. The suit was dismissed as to Bradley and the other surety, and left standing against defendant alone. The evidence for plaintiff consisted of the bond, Bradley’s third annual settlement showing a balance due plaintiff, and oral evidence, to the effect that plaintiff, at the institution of the suit, was twenty-six years old, and was the son of James S. and Mary J. Piles, they being dead.
I. Defendant objected to the introduction of a certified copy of the annual settlement, for the reason that it did not appear that it had ever been filed or passed upon by the probate court. It is certified by the judge of probate as being “a true and correct copy from the records of said court.” If it is a copy from the records of the probate court, it is certainly proper to assume, nothing appearing to the contrary, that it was filed
II. The objection, that there was no evidence that 'the guardian ever took charge of the estate, or that he had not paid over the amounts stated to be due in Ms settlement, or that the bond had ever been approved, are not well taken. Giving bond and filing his settlement showing a balance against himself, is certainly at least prima-facie evidence against him. The recital of his appointment in the bond he gave is an admission of
III. The next contention urged upon us is, thatthe trial court erred in charging compound interest on the balance in the guardian’s hands from the date of his settlement, in 1876, to the date of the judgment, in 1887, a period of eleven years. The matter of interest is within the equitable supervision, control, and discretion of the court, such control and discretion to be exercised according as the circumstances may surround the particular case. In this case it may be fairly stated, as arising from the record before us, that the curator has neglected for a period of eleven years to account for his ward’s money, and that he has, without any apparent cause or excuse, abandoned his trust and left the state. I ought to say, in addition, that, it further aj)pearing the ward was of age for five years prior to the judgment rendered. Under these circumstances, has the .guardian been properly charged with interest at the rate of ten per cent., with annual rests from 1876 to the date of the judgment ? I have looked into the question at some length, and find there is no great degree of uniformity in the adjudicated cases. In this state the courts have shown great jealousy of the conduct of guardians. They hold such trustees to a more rigorous account, and visit upon them more serious consequences for a breach of trust, than in many of the states. And yet it is held, in effect, in Thomas v. Liebke, 81 Mo. 675, that the principle is compensation to the ward and not punishment of the guardian. It is held in that case that the compensation to which the ward is entitled is to be measured by what the guardian did or could have made out of the fund. And that, at all hazards, the court
IV. On becoming of age he was no longer the protege of the law. He became sui juris. While the debt remained due him from the guardian, for which the sureties would remain liable, yet the debt took upon itself the nature of an ordinary debt, and the guardian should thereafter be held for ordinary interest between debtor and creditor, which in this case would be six per cent. Armstrong v. Walkup, 12 Gratt. 608; Tanner v. Skinner, 11 Bush (Ky.) 120; Clay v. Clay, 3 Metc. (Ky.) 548. The case of Payne v. King, 38 Mo. 502, countenances the rule as stated.
It is among the objections made in this case that the-court should have allowed, against the balance found due from the guardian, his commission as such. The objection is not tenable. Commission is compensation for the performance of duty. The performance of such duty is the consideration justifying commission. In this case there was a total failure of duty, and ■ the dis-allowance of any charge, though asked in behalf of the-
If plaintiff will, within fifteen days, enter a remittitur for the amount of the difference between ten per cent, compound interest and six per cent, simple interest for five years before the judgment below, the time when the ward became of age, we will affirm the judgment ; otherwise it will be reversed and the cause remanded.
Rehearing
On rehearing.
A rehearing was granted in this cause that we might consider the suggestion of counsel, that that portion of the opinion holding that, when a balance was shown to be due the ward, it threw the onus on the guardian to show he had paid or discharged, was in conflict with the case of Renfro, Adm’r, v. Price, 17 Mo. 431, which had not been called to our attention. Since granting the rehearing, the case of State ex rel. v. Weaver, 92 Mo. 673, has been published, which fully sustains the position taken by us. That case, like this, was against the guardian’s sureties, and the plaintiff’s evidence in that case was quite like the evidence in this. It is, therefore, unnecessary for us to consider the case of Renfro v. Price, supra, as we, under the constitution, follow the latest ruling from the Supreme Court. The same remittitur being entered as required in the original opinion, the judgment will be affirmed.
