74 Mo. App. 331 | Mo. Ct. App. | 1898
— In 1885 Frank Tucker was appointed curator of the estates of Lena and Minnie Williams, minors. W. F. Reed and J. Me. D. Trimble, the appellants herein, were the sureties on his official bond. Tucker made his first settlement in July, 1889. In that settlement he charged himself with $1,292.86, the amount received by him from a former guardian, and which composed the entire estates of his wards. In 1882 Tucker married the mother of his wards. After his appointment as curator the children continued to live with him and his wife. In the settlement mentioned Tucker took credit for $800 for the maintenance of the children by him. He also took credit for the amount of premiums paid by him on life insurance policies, which had, prior to his appointment as curator, been issued on the life of the mother of his wards and for their benefit. The balance as shown by that settlement, was $594.06. In 1892 the probate court removed Tucker as curator and appointed in his place J. T. Williams, the respondent herein. Subsequent to his removal, to wit, on the fourteenth day of March, 1892, Tucker presented to the probate court a final settlement of his accounts as curator. In this settlement he charged back the amount of insurance premiums for which he had taken credit in his
The final settlement showed a balance due the wards of $1,557-. 51. The settlement was approved by the probate court. Prom the order approving the settlement Beed and Trimble, the sureties of Tucker, appealed to the circuit court. In the circuit court they contended that Tucker should be allowed a reasonable amount for maintaining the children, and that he should also have credit for the value of the insurance policies, or at least for the amount of the premiums paid by him on the insurance policies. On a trial 'de novo the circuit court restated the account with annual rests. It charged Tucker with ten per cent interest on the amount of money in his hands to May 11, 1891. After that time and to the date of the final settlement in the probate court he was charged with eight per cent interest. After the final settlement he was charged at the rate of six per cent interest. The court allowed Tucker credit for the amount of premiums paid by him on the insurance policies, but it refused to allow anything for maintenance. Prom the judgment approving this settlement the sureties have appealed to this court.-
The objection is made to the action of the circuit court in charging Tucker with interest at the highest legal rate, with annual rests. There was no error in this. It was conceded that Tucker used the money belonging to his wards in his private business. State ex rel. v. Richardson, 29 Mo. App. 595; Collins v. Gilmore, 50 Mo. App. 353.
The chief complaint of the appellants is that the circuit court erred in refusing to credit Tucker with a reasonable sum for boarding and clothing his wards during the time they lived with him. The evidence tended to show these facts. At the time of the marriage of Tucker (in 1882) he was living in the city of Mexico, and was clerking in the store of Reed, the appellant herein, who was then the curator of the estates
Again, the equities of the sureties are very strong. For three or four years Tucker paid for food and clothes for his wards out of their own estate, whereby they received the direct benefit of at least a portion of their patrimony. Tucker is insolvent and the entire estate has been consumed by bad management and in expenses of living. It is not just that the appellants should be made to account for the entire estate. Hence we conclude that under the evidence, as preserved in this record, the circuit court should have allowed a reasonable sum for boarding and also clothing the children during the time Tucker was in the shoe business in Mexico and while the family lived on the farm. After that time the evidence leads us to the conclusion that the children were supported by the mother.
The testimony of Tucker may be secured on another trial. Its importance is obvious. For this