108 Mo. 22 | Mo. | 1891
This is an action ou a bond executed by Joseph W. Branch as principal, and the appellants, James Green and Robert B. Brown, as sureties. The plaintiff sues on this bond as the legal representative of Mrs. Florence E. Garrison, deceased. A trial was had in the circuit court of the city of St. Louis, and on June 22, 1889, judgment was rendered against James Green, the appellant, surety on said bond, for' $21,200.36. A motion for new trial was overruled, and appeal taken to this court.
The petition alleges that Florence Eliza Garrison, nee Crookes, died on December 14, 1885, and that plaintiff, as public administrator, took charge of her estate, in pursuance of. an order of the probate court of the city of St. Louis, made July 9, 1888 ; that on November 13, 1883, Joseph W. Branch was duly appointed trustee of the estate of said Florence, by the circuit court of the city of St. Louis, and that said Branch, as such trustee, on the same day, in obedience to the order of said court, executed a bond to said Florence, in the sum of $42,000, with James Green and Robert D. Brown as sureties, conditioned that said Branch “should well and truly perform his duties as such trustee, and should account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee;’ and for breach of said bond assigns that said
The answer of defendant. James Green, who is one of the sureties on said bond, and the appellant herein, is a general denial, and further avers that prior to the commencement of said suit said Branch, as such trustee, had accounted for and paid over to said Florence E. Garrison and her estate all sums of money due from him by reason of his relation .to her as trustee. A general reply was filed to said answer. Branch, as principal, and Robert B. Brown, as cosurety, with appellant, were also named as defendants in the petition, but the cause was dismissed by plaintiff as to said parties, preceding the trial.
Upon the trial, the plaintiff, in order to sustain the issues on his part, proved his title to the office of public administrator of St. Louis and qualification as such; the death of Florence E. Garrison; the order of the probate court directing him to take charge of the estate of Mrs. Florence E. Garrison, deceased, upon the application of one of her heirs. He also proved that Mrs. Garrison was Florence E. Crookes, the daughter of Joseph W. Crookes, deceased.
He then read in evidence the following order of the circuit court of the city of St. Louis:
“Tuesday, November 13, 1883.
“In the matter of Florence Eliza Crookes.
“Now at this day comes Florence Eliza Crookes in her own proper person, and submits to the court the petition filed herein, and moves that Joseph W. Branch*28 be appointed as her trustee ; the court having examined said petition as to said application, and she now in open court admitting that said application is made by her of her own free will, and that the facts set forth in said petition are true, being fully advised, finds, first, that on November 1, 1874, Joseph W. Crookes, the father of her, the said Florence Eliza Crookes, died leaving a will, which was thereafter admitted to probate in the probate court of the county, now city, of St. Louis, wherein he devised to her certain property, appointed a curator for her during her minority, provided that upon her attaining her majority that her said curator should turn said estate over to her trustee, to be held by him for her sole and separate use and benefit, to be used and enjoyed by her free from any management or control of any husband which she might at any time have; second, bnt that her said father did not appoint or make any provision for the appointment of a trustee for her; third, that she, the said Florence Eliza Crookes, has attained her majority; fourth, that her curator holds estate amounting to $20,767.11, subject to the order of her trustee, when appointed ; and the court being of opinion that in the exercise of its chancery powers it may make the appointment prayed, and that the same should be made, it is, therefore, ordered by the court, that Joseph W. Branch, of the city of St. Louis, be, and he is hereby, appointed trustee, with all the powers and authority in and by said will vested in the trustee of her, the said Florence Eliza Crookes, and said Joseph W. Branch here, in open court, accepts said trust and files his bond in the sum of $42,000, with Robert B. Brown and James Green as sureties, conditioned for the faithful discharge of said trust, which bond the court now approves.”
Plaintiff then introduced said bond, which is as follows:
“Knowall men, that Joseph W. Branch, as principal, and Robert B. Brown and James Green, as*29 secur'ti ;s, are held and firmly bound unto Florence Eliza Crookes, in the penal sum of $42,000, lawful money of the United States, to the payment whereof they bind themselves, their heirs, executors and administrators firmly by these presents. Sealed with their seals at the city of St. Louis, state of Missouri, this thirteenth day of November, A. D. 1883. The conditions of the above obligation are such, that, whereas the said Joseph W. Branch has on this day been appointed trustee of said Florence Eliza Crookes. Now, therefore, if said Joseph W. Branch shall well and truly perform his duties as such trustee, and shall account for and pay over, when lawfully required so to do, all sums of money coming into his hands as such trustee, then the bond to be void, otherwise to remain in full force and virtue.
“(Signed) Joseph W. Branch, [Seal.]
“Robert B. Brown, [Seal.]
“ James Green, [ Seal.] ”
Plaintiff next offered in evidence a paper shown to have been signed by Joseph W. Branch, which reads as follows:
“$20,767.11 St. Louis, December 28, 1883.
“Received of Joseph W. Branch, curator of Florence Eliza Crookes, $20,767.11 as her estate in full.
“[Signed] Joseph W. Branch,
“Trustee of Florence Eliza Crookes-Garrison.”
Defendant objected to the admission of said paper, because it was not an official act, but an ex parte and voluntary statement of the trustee subsequent to the execution of the bond, and, therefore, not competent as against the sureties. Said objection was overruled, and defendant excepted.
Plaintiff also offered in evidence the will of the late Joseph W. Crookes, and the settlement made by Branch, as curator of Florence, in the probate court, on July 1, 1881, but upon objection of defendant said instruments were excluded. A formal demand by the
Defendant thereupon called to the witness stand Joseph W. Branch himself, who testified to the effect that Florence Crookes (who afterwards married Garrison) was his niece; that he qualified as her curator after the death of her father, which occurred in November, 1874, and that, at various dates during the interval between 1875 and 1880, he, as her curator, received from the executor of her father’s estate sums of money aggregating about $20,000, which sums, when received, he entered to the credit of his individual account, and that he invested and used the entire amount on his own account, and in his own private business enterprises, except the sum of $4,000, which, in 1879, he invested in a loan for five years to Mr. Alexander, secured by deed of trust, and which was repaid to him by Alexander in May, 1884. In regard to this Alexander investment, however, he is very indefinite. He had loaned him $24,000 altogether, and the note and mortgage were in his individual name. He says, “he calculated $20,000 of it, Alice, and $4,000 for Eliza.” No further explanation is given why he intended Alice should have the larger, and Eliza the smaller, amount.
He testified that on the twenty-eighth day of December, 1883, the date of the receipt, he went through no formality of transferring from himself, as curator, to himself, as trustee, the money he held for his ward and beneficiary further than executing the receipt in evidence, and exhibiting the same to the probate court. He kept no separate bank account as trustee of this fund. When .he collected it, it went into his private bank account, and was used by him. He says in explanation of the receipt, that he gave it as a settlement with the probate court of his curatorship. He
Counsel also went through a long account of the witness to show payments to his ward after the exhibit for final settlement was filed, but Mr. Branch very frankly says that he charged his ward with all those payments and he was not entitled to further credit for them. Although the court excluded the final settlement on the objection .of counsel for the defendant, they examined Branch on all the debits and credits, and for all practical purposes it was before the trial court, and showed a balance of $20,767 due the ward.
On cross-examination, it was clearly shown that Joseph W. Branch was on December, 1883, worth between $160,000 and $170,000, over and above all his liabilities. His credit was first class. He was the owner of a large business house under the firm-name of Branch, Crookes & Co. He discounted all his bills for merchandise and material. His partners simply had an interest in the profits of the business. He testified he was amply able, at the time he qualified as trustee, to turn over the amount due his ward. He succeeded himself in the trust, but if anyone else had been appointed he could have turned over the amount.
I. There was no error in admitting the order appointing the trustee. It was a substantive fact essential to the plaintiff’s case. It was necessary to inform the court of the relation Branch bore to Miss Crookes, and defendant having bound himself by the terms of the bond for the faithful performance of
II. Nor was there any error in admitting the receipt in evidence. It was an admission made after the trust was assumed, and at a time when defendant was standing sponsor for Branch’s conduct. It related directly to the business in hand. While the principal .is acting, his declarations may be so interwoven with his acts, as to stand in direct connection with them and form part of the res gestee. Brandt on Suretyship, sec. 518.
It is true, the court on the defendant’s objection, and we think erroneously, excluded the settlement when it was offered by the plaintiff, but the defendant sufficiently proved by Branch that he had made a final settlement in the probate court, and that the balance against him was the amount of this receipt, and that he gave this receipt as a settlement with that court. While open to explanation as other receipts, it was competent evidence as an admission of the principal against himself. State to use v. Roeper, 82 Mo. 57; State to use v. Dailey, 52 Mo. 601; Father Mathew Society v. Fitzwilliams, 84 Mo. 406. Nor can we look upon this receipt as a mere form. When his ward reached her majority, the guardianship was required by the law to be settled. While the defendant has prevented that settlement from going into this record, he has shown by his own witness that he actually made a settlement. The other evidence shows he has assumed a new fiduciary relation to his ward. He was now her trustee, and he alone could give acquittances for her. This receipt presented to the probate court was an unmistakable and unequivocal act, by which he intended that court to understand he henceforth held
III. The important question in this case, and one discussed with great ability on both sides, is whether, upon the whole evidence, the defendant is liable as surety on the trustee bond. That the condition of the bond sued on is prospective, and that defendant cannot be held for past defaults, is conceded by respondent, and is too clear to admit of discussion or require any citation of authority. The .surety is not to be held beyond the terms of his contract. He is bound by his agreement and nothing else. Bauer v. Cabanne, 105 Mo. 110. And, where an officer succeeds himself, his sureties are only bound for the breaches of duty occurring during the term for which they bound themselves. State to use v. McCormack, 50 Mo. 568; State ex rel. v. Alsup, 91 Mo. 172; State ex rel. v. Finn, 98 Mo. 532. But it is conceived that these principles of law, however well settled, do not of themselves solve the difficulties of this case.
By the last will of Joseph W. Crookes, Joseph W. Branch was made a testamentary guardian and curator of Florence E. Crookes, a minor daughter of the testator, during minority. By the will the testator further provided that, upon Florence E. attaining her majority, said curator should turn over her estate so derived to her trustee, to be held by him for her sole and separate use and benefit, free from the control of any husband she might at any time have. In the argument of counsel, it was assumed that Branch gave bond as curator, and, in the absence of a provision, in the will exempting him, of course he was required so to do.
The testator did not name her trustee, but, upon coming to the age of eighteen, acting upon the well-defined maxim, that a court of equity will not suffer a trust to fail for want of a trustee, but will appoint one, she applied to the circuit court of the city of St. Louis to appoint a trustee for her to execute the trust created
On December 28, 1883, the record of the probate court, offered in evidence by plaintiff, shows that on that date Branch and Miss Florence E. Crookes, then Mrs. Garrison, and William O. Garrison, her husband, appeared in that court, and the final settlement was examined, and the court found a balance in the curator’s hands of $20,772.36, which the court ordered paid over to her trustee under appointment of the circuit court in accordance with the will of her father. There is a controversy between counsel as to .the action of the court in regard to this entry. Counsel for respondent maintains it was admitted in evidence, and counsel for appellant as confidently assert it was excluded by the circuit court. We have carefully read the full stenographic report of the offer, the objections, the colloquy between counsel, and the court and counsel, and we tbinh the record entry was admitted, but the settlement itself was excluded.
We would not be misunderstood. In our view, the curator’s itemized account, signed and sworn to, was the settlement alluded to, objected to and excluded by the court. In contemplation of law, that paper and accompanying vouchers with the action of the court upon it, as shown by the record, constitutes the settlement proper. But in all his offers counsel for plaintiff
On the same day, Branch, who now occupied the dual position of curator and trustee, executed this receipt:
“$20,767.11. St. Louis, December 28, 1883.
“Received of Joseph W. Branch, curator of Florence Eliza Crookes, $20,767, as her estate in full.
“ Joseph W. Branch,
“Trustee of Florence Eliza Crookes-Gfarrison.”
Branch says that, in point of fact, on that day, he did not, as curator, go through any kind of ceremony or formality of turning over the actual money to himself as trustee. Nor did he deposit that amount as a trust fund in any bank, and open a new account with himself as trustee. It is now earnestly contended by. counsel for appellant, that, inasmuch as there was not such a formal transfer of the fund itself, and as he placed his ward’s moneys, as. he received them, into his private account, and on that day they were mingled with his own, and not kept separate, that he never received these moneys as trustee; that he had committed a breach of his curator’s bond, and was guilty of a devastavit, and the liability must fall on the sureties on the curator’s bond, and not on the sureties on the trustee’s bond.
We recognize the necessity of a careful discrimination here. We fully agree with counsel that “ a fiduciary cannot transfer Ms mere indebtedness in one capacity to Mmself in another capacity so as to exonerate his sureties in the one, and throw the burden upon his sureties in the other. To make the transfer valid, it must consist of something more than a mere naked liability. It must be substantial assets'if made
The decision of that case turned largely upon the fact, that long after Gregory qualified as guardian he continued in his settlements to charge himself with the fund that he had converted as executor. Judge Staples well said: “When a fiduciary thus charges himself with assets, when he deliberately holds himself out to the world as chargeable in a particular character, neither he nor his sureties should be permitted to destroy the effect of admissions thus solemnly made, by any mere private entries of the executor himself. * * * We must look to the records only.” The court of appeals in that case bases its opinion on the fact that a devastavit had occurred prior to the attempted transfer of the liability from the sureties of the executor to those of the guardian, and because the transfer so called was a private, secret arrangement of the executor alone, and was
But, while it is true that a fiduciary, guilty of a devastavit or wrongful conversion, ' cannot thus, at his pleasure, shift the responsibility of one set of sureties to another, we think it is firmly settled, that when one person is both executor and guardian, or guardian and trustee, he may transfer his account as executor to his account as guardian or as guardian to trustee, and when he has made this election in a solemn, decisive way, he and his sureties will be bound by that election.
It is essential then in the very outset, to determine whether Joseph W. Branch had assets in his hands as curator belonging to his ward at the time he was appointed trustee. His testimony is unchallenged that he had received assets of his ward from her father’s executor aggregating $20,000 ; that he carried this in his private account. He made annual settlements with the probate court, charged himself from time to time with the amounts he received, accounted for seven-per-cent, interest on the amount in his hands. On the trial of this cause in the court below, the defendant called him as a witness. His testimony does not indicate any desire to lean to one side or the other. He says that when he made his final settlement as guardian, he was worth $160,000 to $170,000; that he was able on that day to have paid his ward or her trustee the $20,767.11 found due on the settlement. Counsel now seem to question this statement. Waiving the rule that they are bound by his answers to their own questions, being their own witness, we think we are bound to accept this as a fact because it stands uncontradicted by any other fact or statement in the record.
Nor is it at all conclusive that Branch was guilty of a devastavit because he did not keep these funds of his ward at all times separated from his individual moneys. It was his duty to invest them for her, if he
In Gilmer v. Baker, supra, the court said : “Bat if tbe fund was in tbe bands of Berry at tbe time said order was made, or if it came to bis bands thereafter and before tbe injunction was granted, or if he was then solvent, and able to pay it over., all that was necessary, in any of these events, to fix bis liability as administrator was for him to make bis election to bold it as administrator, and manifest it by some act, declaration or admission.” And again in that case it-was said, “there was no evidence that he was insolvent.” See, also, Gottsberger v. Taylor, 19 N. Y. 150; State to use of Gable v. Cheston, 51 Md. 352.
In tbe case last cited, tbe supreme court of Maryland, in discussing this proposition, says: “ But assuming tbe proposition to be true, that if tbe assets are wasted by tbe executor before bis duties as such have ceased, so that nothing then remains in bis bands
It was decided by this court in State to use v. Hearst, 12 Mo. 365, when the same person is executor of an estate and guardian of a distributee, and there is nothing to show in which capacity he holds funds, after payment of debts and settlement of the estate, he will be presumed to hold them as guardian. Watkins' Adm'r v. State to use of Shaw, 2 Gill. & Johns. 220; Karr's Adm'r v. Karr, 6 Dana, 3; Adm'r of Johnson v. Ex'r of Johnson, 2 Hill Ch. (S. C.) 285; Walker's
Applying these principles here, when Mrs. Garrison reached her majority, it became the duty of her curator to turn over her estate to her trustee. In obedience to this provision of the will, she went with her curator to the court having equity jurisdiction, and prayed that court to appoint her a trustee. The court made the appointment. The trustee made known to the court that he had in his hands $20,767.11. T-Tis sureties were requested by him to execute a bond for $42,000, double the amount of the trust fund. Executing this bond as sureties for the performance of this trust, being in the contemplation of the law before the court, they must be held to know the source of that fund. The record appointing their principal a trustee recites that he theri had in his hands as curator this amount. As they were to stand as sponsors for his good conduct, how easily they could have ascertained in what condition this fund was.
But the curator then in December following gave notice of his final settlement. ’ He appeared before the probate court; his ward and her husband were there. By the appointment of the circuit court, the trustee had a right to be, and was, there to see that he received all of the trust fund. The settlement was made, the balance was ascertained to be $20,762.36, and the probate court ordered it paid to Branch, '■'•trustee of said Florence E. Crookes, now Garrison, under appointment of the circuit court,” and thereupon he receipts
We hold the circuit court committed no error against the defendant. The judgment is affirmed.