State ex rel. Tourville v. Roland

23 Mo. 95

• Court: Supreme Court of Missouri
• Decided: March 15, 1856
• Status: Published

Opinion

Rylaií», Judge,

delivered the opinion of the court.

This ease comes fully within the principles of the decisions heretofore made by this court, in the cases of Oldham & Broadus v. Trimble, (15 Mo. Rep. 225,) and Jones v. Brinker (20 Mo. Rep. 87).

This suit is on a guardian’s bond, against the principal and Ms security. The defence rests upon the allowances and settlements of the guardian, made by him in the Probate Court of St. Louis eounty. These settlements and allowances show that the guardian has fully accounted for all of the personal estate in his hands belonging to his ward, and also for rents of the real estate; and that the guardian has overpaid and has brought Ms ward in debt.

The ward being the relator in this action, sought to introduce evidence before the lower court tending to show that the guardian had not fully accounted for all the rents and profits ; that is, sought to show mistake or omission or neglect in the guardian to charge himself with the use and occupation, for several years, of a dwelling belonging to the relator, the rent of which was worth one hundred and fifty dollars a year; the half of which rent, being between seven and eight hundred dollars, belonged rightfully to the relator. In other words, the relator offered to impeach in this action on the bond against the guardian and bis security, tbe justice and correctness of the allowances and settlements of the guardian, made by the Probate Court.

The lower court rejected this evidence, and instructed the jury that the settlements of the guardian of the relator were conclusive in this action.

This instruction is in accordance with the principles of the decisions of this court in the above cited cases. These settlements and allowances of administrators, curators and guardians are considered .equivalent to judgments of a court of .competent jurisdiction. They afford a defence to an action at law on the bond, and are considered as conclusive between the parties interested and concerned therein at law. Put a party interested is allowed to file his bill or petition against the guardian, charging him with having made false and fraudulent accounts, and having fraudulently procured allowances in his favor to be made to him by the county or Probate Court. When these settlements and allowances are set -aside for such fraudulent conduct on the part of the administrator or guardian, then a suit on the bond of such administrator or guardian can be prosecuted against principal and security, without being defeated by such settlements,, allowances and judgments. In the case of Jones v. Printer, this court said : “ Since we have now no chancery courts, and the distinction between courts of law and courts of equity has been abolished, the party seeking to falsify the allowances and accounts of the settlements of administrators, must, nevertheless, petition the Circuit Court as a court of law and equity for that purpose; and his petition must allege the same grounds now for the action and interference of the Circuit Court, as was formerly necessary to give the court of chancery jurisdiction.”' The party seeking to set aside the settlements and allowances in favor of his guardian, must charge that such allowances and settlements were'procured by fraudulent and false means and pretences unjustly to the injury of the estate and parties interested.

The judgment, in this case, must be affirmed;

the other judges concurring.