Bass v. Putman

79 Mo. App. 274, 1899 Mo. App. LEXIS 276

• Court: Missouri Court of Appeals
• Decided: March 7, 1899
• Status: Published

Opinion

BLAND, P. J.

On December 13, 1897, Emma Russell, formerly Emma Grimes, of Newton county, Missouri, departed this life, leaving two children by a former marriage with Grimes, Dora, aged nine, and Leona Grimes, aged seven years. On December 16, 1897, J. E. Putman appeared before the probate court of Newton county and without notice to anyone procured himself to be appointed guardian and curator of the two minor children. E. M. Bass is the grandfather of these minors, and on learning of the appointment of Put-man he appeared in the probate court and asked to have the appointment of Putman set aside and for the appointment of himself as guardian of the two minors; the hearing of the motion was set for January 18, 1898; notice thereof was served on Putman, who on the day appointed for the hearing, appeared and filed his motion to dismiss the motion or petition of Bass. Both motions were heard at the same time by the probate court, during which it developed that Emma Russell had left a will, which was offered for probate; the further hearing of the motions was postponed until after the witnesses to the will were brought in; on the testimony of these the will was duly admitted to probate. The will reads as follows:

“Ergo, Mo., Dec. 11, ’97.

“Know all men by these presents, that I, Emma Russell, request that my children be left in care of my husband, James Russell; that my father, E. M. Pass, assist and help in general supervision of things and that they be appointed (sic)guardian. I do not want anyone else to act in this matter but the above named. And that the children have a good education is my desire.”

After the probate of the will the court removed Putman as guardian and curator, and appointed Bass in accordance with the directions of the will. Russell refusing to qualify.. Bass gave bond and qualified. Putman appealed to the circuit court, where upon a trial anew the action of the probate court was set aside and Putman was adjudged to be the legally appointed guardian and cufator of the two children. Erom this order and finding Bass appealed to this court.

Testimentary guardians. ' After the death of the father the mother is the lawful guardian of her minor children and may, under the provisions of section 5283, Revised Statutes 1889, appoint a guardian by her last will. When the will of Mrs. Russell was probated and Bass qualified, the former action of the probate court appointing Putman, became inoperative and void; to hold otherwise would be to hold that the probate court might by an order annul a valid and binding provision of a will.. The appointment by will superseded the power of the pro-bate-court to appoint, and when the knowledge of this appointment was brought before the court by the production and probate of the will, there was nothing left for the court to do but to revoke the appointment of Putman; and the circuit court,. in the face of the will, was as powerless to reinstate Putman, ■as it would have been to take a legacy bequeathed to one named in the will and give it to an utter stranger. It is contended by respondent that the appointment of Bass is as guardian only, and not as curator, and therefor Putman having been first appointed curator is entitled to hold on. No such narrow and technical construction can be given to the appointment of Bass. The will plainly indicates that the testatrix intended that he should be both guardian of the person and the estate, and the authorities are that unless the testamentary guardian is restricted by the terms of the will that he takes the custody of the person and the estate of Tyler Qn Infancy an¿ QoVerture [2 Ed.], p. 247. Testamentary guardians possess the same powers and have the same rights as other guardians. Woerner on Am. Law of Guardianship, p. 62. Guardian and curator, when applied to an estate, have the same meaning. Easley v. Bone, 39 Mo. App. 388; and where one is appointed guardian, unless the appointment is restricted to the person, he is entitled to the custody of both the person and estate of the ward. Because a curator of the estate of a minor other than the guardian of the person may be appointed under the special provisions of section 5280 or 5288, it does not follow that it is necessary in an order appointing a guardian of the person and estate, that the order should designate the appointee as both guardian and curator. To designate him as guardian is sufficient to give him the custody of the person and of the estate of his ward.

Eor the reason herein given, the judgment of the circuit court is reversed, with directions that it affirm the judgment of the probate court.

All concur.