State ex rel. Strickland v. Strickland's Administrator

80 Mo. App. 401, 1899 Mo. App. LEXIS 175

• Court: Missouri Court of Appeals
• Decided: May 8, 1899
• Status: Published

Opinion

GILL, J.

This is a suit on a curator’s bond to recover the sum of $251 alleged to have been wrongfully appropriated by the curator. The facts are about as follows: While the plaintiff J. E. Strickland was a minor, he became entitled to a small amount of money and his father, Z. T. Strickland was appointed curator and J. H. Strickland (father of said Z. T. and grandfather of I. P. Strickland) signed as one of the sureties on the curator’s bond. Z. T. continued as curator until in the year 1885, when he died, owing his ward, as shown by the last annual settlement, the sum of $372.22. Thereupon, in August, 1885, J. H. Strickland was appointed curator and gave the bond here sued on. At the first annual settlement made in August, 1886, by said J. II. Strickland, he seems to have charged himself with the $372.22 the balance owing by his predecessor (though in fact said balance was not collected) and credited himself, among other things, with the $251 in controversy. This credit was asked by the curator and allowed by the probate court on account of the board and maintenance of the minor before this last curator (J. II. Strickland) took charge of the estate. It seems that even during the lifetime of the minor’s father he was cared for and boarded by his grandfather, J. II. Strickland, and that when the latter came into the possession of the estate he (J. II.) presented the claim for $251 for such board, etc., and the same was allowed by the probate court.

Before the minor (J. P. Strickland) arrived at the age of maturity said J. II. Strickland (the curator aforesaid) died, and one Jones was appointed curator. It is conceded that said Jones as curator received from the estate of J. H. Strickland, the former curator, everything of value belonging to the minor’s estate (except of course the alleged claim for $251); that when the minor (this plaintiff) became of age, said Jones made a final settlement with him and was discharged by the probate court. This suit then concerns alone the $251, which plaintiff claims was improperly allowed his grandfather (then curator) and it is now sought to recover back this amount in this action on the curator’s bond given by said J. H. Strickland. At the trial below, by the court sitting as a jury, the judgment was for defendants and plaintiff appealed.

Guardian and curator: annual settlement: prima facie effect of: not final. I. It is now the settled law of this state that the annual settlement of a curator or administrator is prima facie evidence in his favor. In other words, such animal set- > 7 tlement is presumptively correct, and the onus of showing the contrary rests on the ward or é s other persons attacking it. Myers v. Myers. 98 Mo. 262 (overruling State to use, etc., v. Roeper, 82 Mo. 57); Ladd v. Stephens, 147 Mo. 219; s. c. 915; 2 Woerner on Law of Administration, sec. 504. Such periodical statements, approved by the court, are not conclusive, but may be inquired into and corrected at the final settlement, or, where there is no final settlement, in an action on the bond, of the curator or administrator. State to use, etc., v. Miller, 44 Mo. App. 118. The trial court then had a correct view of the law of this case when it was declared that the allowance of the'credit of $251 by- the probate court in the settlement of I. II. Strickland as curator in his first annual settlement, “is prima facie evidence in favor of the defendants in this case, and unless relator has shown that the same was an improper allowance the finding must be for the defendants.” In the opinion of the trial judge the plaintiff did not produce that preponderance of evidence to justify it in setting aside the credit of $251 allowed by 'the probate court. Nor are we prepared to say that the court erred in its judgment. We are not authorized to reverse that finding except on clear and overwhelming proof. This record falls far short of showing that. The evidence, though meager, justifies the conclusion that I. H. Strickland, the curator, was entitled to the sum allowed for the board .amd maintenance of the minor. —: boarding of surety: allowance. Beading between the lines it appears that said J. II. (plaintiff’s grandfather) boarded and main-, tained the boy during his minority and did so with the understanding that he was to receive pay therefor. • It may be as contended by plaintiff’s counsel, that but for J. TI. Strickland’s liability on the bond of the first curator he would not have made the charge (though even that is in doubt) yet as the evidence tends to show that he reserved the right to charge the minor’s estate and did subsequently present his claim with proof to the probate court where the same was allowed, the burden was cast on the plaintiff to show to the satisfaction of the trial judge that said charge was improper. This was not shown nor was there a particle of evidence to prove that the charge was excessive.

—: allowance not final. We attach no importance to the so-called suit in the probate court, except that it shows that the court investigated the claim. Plaintiff is right in the contention that such proceeding was unauthorized and did not bar a future investigation of the matter. But it appears that the claim or credit of the curator went into his annual settlement and was there allowed. And as already stated this allowance made a prima facie case in the curator’s favor.

-: past maintenance. That the credit was for and on account of past maintenance and support did not destroy it as a legitimate charge

against the estate. Folger v. Heidel, 60 Mo. 284; Brent’s Guardian v. Grace’s Adm’r, 30 Mo. 253. We discover no reason for disturb

ing the judgment and it will therefore be affirmed.

All concur.