| Mo. | Oct 15, 1884
This suit was instituted against A. H. Leslie, and Butts and Graham as his sureties, in a curator’s bond and against Bigger successor of Leslie, as curator of the estate of Geo. S. Welch. Relator is the successor of Bigger as curator of said estate. The petition contained two counts, one an action at law on the bond of Leslie on which the court properly found for
The other count charged that in the year 1876, Bigger being insolvent and largely indebted to Leslie, the two conspired to defraud said ward and .agreed that Leslie should resign his said cnratorship and that Bigger should be appointed in his stead. That Leslie should be one of Bigger’s sureties in his bond, and that upon a settlement by said Leslie of his curatorship with Bigger as his successor, the latter should take as the assets of the estate of said ward, his, Bigger’s, note to Leslie, and receipt to Leslie for the amount as so much money paid by Leslie to him as his successor. That this arrangement between them was carried out, •except that Leslie did not become one of Bigger’s sureties on said bond. That the bond executed by Bigger and his sureties was and is worthless, he and they then being and still are insolvent. That the sum of $2000 in money and other property came into the hands of Leslie as curator of the ward’s estate. That the probate court approved the final settlement of said Leslie containing .said fraudulent receipt in ignorance of the transaction between him and his successor and prays that said settle-. ment be set aside and for general relief.
There was a trial which resulted in a verdict and judgment for defendants, from which this appeal is prosecuted. Bigger testified for plaintiff substantially to the facts alleged in the petition, except as to a prior agreement or conspiracy between him and Leslie. That Leslie turned over to him as his successor, his, Bigger’s, •own note to Leslie, for $1200, with about one year’s interest and $13 in cash. The note and $13 was all he •ever turned over to him. That Leslie promised to go on his bond, but after Bigger was appointed refused to do so. Leslie, called by plaintiff, also, testified, that Bigger owed him $1200, secured by deed of trust on land,
“$1344.40. Marshfield, Mo., Sept. 15, 1876.
Received of A. H. Leslie, curator of the estate of George S. Welch, thirteen hundred and forty-four dollars and forty cents, the amount due from him as said curator.
N. H. Bigger.”
Mis. Welch, mother of George S. Welch, testified that Leslie told her he would go on Bigger’s bond. This was all the evidence bearing on the issues made on the first or equity count of the petition! And the question arises on these facts, whether Leslie and his sureties can shield themselves behind his final settlement. “The guardian’s trust is one of obligation and duty and not one of speculation and profit.” Schouler’s Horn. Rel., sec. 341. “Chancery treats with suspicion all acts and circumstances evincing a disposition on the part of the guardian to derive undue advantage from his position.” Ib. 348. “ The trust should be managed exclusively in the interest of the cestui que tmost, or in case of guardianship for the ward’s benefit.” Ib. “He must not mingle his own with the funds of his ward,” and “unauthorized acts which turn out ill for the ward are not protected.” These general principles all condemn the Transaction between Leslie and Ms successor. It was a ■fraud upon the ward’s estate. Instead of money wMch
But we are not without direct authority on the subject. In his work on Domestic Relations, Mr. Schorder says: “It is the duty of every guardian whose trust as such is revoked to account honestly to the late ward or to - his successor in the trust, if there be one. Thus a guardian cannot discharge himself by simply turning over to his successor the latter’s note for an individual debt due the guardian and taking a receipt in full; but he will still be bound in equity to the ward, unless he transfers the ward’s .property or money in lieu, or good securities, such as are admitted to be proper investments.” Sec. 372. The case of Manning v. Manning, 61 Ga. 137" court="Ga." date_filed="1878-08-15" href="https://app.midpage.ai/document/manning-v-manning-5558981?utm_source=webapp" opinion_id="5558981">61 Ga. 137, cited by Mr. Schouler, is directly in point and fully sustains the text. The securities spoken of in the text are those in which the ward’s money has been invested; not securities which the guardian may own in his own right.
There is nothing in the point made by respondents that the bill of exceptions is not properly authenticated. In the record proper is the following entry: “Plaintiff then filed a motion for a new trial, which being overruled, he excepted and filed his bill of exceptions in words and figures as followsThen follows the bill of exceptions. That was sufficient. The case is wholly
The judgment is reversed and the cause remanded to he proceeded with in conformity with this opinion.