State ex rel. Piles v. Richardson

Ellison, J. At the conclusion of plaintiff’s case defendant offered an instruction in the nature of a demurrer, which being refused by the court, defendant stood thereon and refused to introduce any testimony. The'action was instituted on a guardian’s bond against W. J. Bradley as principal, and defendant and one other as sureties. The suit was dismissed as to Bradley and the other surety, and left standing against defendant alone. The evidence for plaintiff consisted of the bond, Bradley’s third annual settlement showing a balance due plaintiff, and oral evidence, to the effect that plaintiff, at the institution of the suit, was twenty-six years old, and was the son of James S. and Mary J. Piles, they being dead. I. Defendant objected to the introduction of a certified copy of the annual settlement, for the reason that it did not appear that it had ever been filed or passed upon by the probate court. It is certified by the judge of probate as being “a true and correct copy from the records of said court.” If it is a copy from the records of the probate court, it is certainly proper to assume, nothing appearing to the contrary, that it was filed [601] therein. Indeed, I am unable to see how a settlement could become a part of the records of the court without being filed. Nothing on the back of a paper is not, properly speaking, the filing, but merely the evidence thereof. But it is said that the settlement should not have been received in evidence for the reason that it did not appear to have been passed upon by the court. These settlements are prima-facie evidence against the guardian and his sureties, and the objection made involves the question whether they are evidence from the fact of their being approved by the court, or from the fact that they are solemn admissions made by the guardian over his signature and under oath. I think it is undoubtedly upon the latter ground that they receive their probative force and upon which they are allowed in evidence. It has long been held in this state that these annual settlements are mere exhibits of the state of account and that their approvals are not judgments. And so it was directly decided in Kidd v. Guinbar, 63 Mo. 342, that entries of record relating to these settlements were in no sense judgments, they were merely historical, and not judicial, in their character. If I am correct in this, the settlement or exhibit became primafacie evidence against the guardian and his sureties from the time he filed it in court. It might happen that a guardian would make out and file his settlement, and before its approval, or before offering or exhibiting evidence in support of it, he would abscond. If might never be approved. In such instances the sworn exhibit which he has filed in court would be evidence .against him and his bondsmen. II. The objection, that there was no evidence that 'the guardian ever took charge of the estate, or that he had not paid over the amounts stated to be due in Ms settlement, or that the bond had ever been approved, are not well taken. Giving bond and filing his settlement showing a balance against himself, is certainly at least prima-facie evidence against him. The recital of his appointment in the bond he gave is an admission of [602] appointment. State ex rel. v. Williams, 77 Mo. 464. “ It lias frequently been held by this (Supreme) court, that an administrator’s bond was good though not approved by the county or probate court.” State to use v. Farman, 54 Mo. 439; Brown v. Weatherby, 71 Mo. 152. When a balance was shown to be due to the ward, as was done in this case, it throws the onus on the guar.dian to show that he had paid or discharged it. III. The next contention urged upon us is, thatthe trial court erred in charging compound interest on the balance in the guardian’s hands from the date of his settlement, in 1876, to the date of the judgment, in 1887, a period of eleven years. The matter of interest is within the equitable supervision, control, and discretion of the court, such control and discretion to be exercised according as the circumstances may surround the particular case. In this case it may be fairly stated, as arising from the record before us, that the curator has neglected for a period of eleven years to account for his ward’s money, and that he has, without any apparent cause or excuse, abandoned his trust and left the state. I ought to say, in addition, that, it further aj)pearing the ward was of age for five years prior to the judgment rendered. Under these circumstances, has the .guardian been properly charged with interest at the rate of ten per cent., with annual rests from 1876 to the date of the judgment ? I have looked into the question at some length, and find there is no great degree of uniformity in the adjudicated cases. In this state the courts have shown great jealousy of the conduct of guardians. They hold such trustees to a more rigorous account, and visit upon them more serious consequences for a breach of trust, than in many of the states. And yet it is held, in effect, in Thomas v. Liebke, 81 Mo. 675, that the principle is compensation to the ward and not punishment of the guardian. It is held in that case that the compensation to which the ward is entitled is to be measured by what the guardian did or could have made out of the fund. And that, at all hazards, the court [603] will make sure that the guardian reaps no profit off his ward’s money, save his legal commission; that, therefore, when the guardian fails to show the actual interest received, or the real status of affairs, the court is justified, in cases of wilful or gross delinquency, in charging him with compound interest. If an executor uses money of an estate for his own private gain, it is held, per Wagner, J., that he should be charged with the highest rate of interest allowed by law. In re Davis, 62 Mo. 450. So it is held, per Hough, J., in Williams v. Petticrew, 62 Mo. 460, that “ on money in his hands not reported according to law, but used by himself, he should be charged with ten per cent, interest computed with annual rests.” To same effect is Walker v. Walker, 9 Wall. 743. Guided by the spirit and principle of the foregoing cases, I have concluded it was correct to charge the guardian with ten per cent, compound interest up to the date of the ward becoming of age. After he arrived at his majority, a different question presents itself. IV. On becoming of age he was no longer the protege of the law. He became sui juris. While the debt remained due him from the guardian, for which the sureties would remain liable, yet the debt took upon itself the nature of an ordinary debt, and the guardian should thereafter be held for ordinary interest between debtor and creditor, which in this case would be six per cent. Armstrong v. Walkup, 12 Gratt. 608; Tanner v. Skinner, 11 Bush (Ky.) 120; Clay v. Clay, 3 Metc. (Ky.) 548. The case of Payne v. King, 38 Mo. 502, countenances the rule as stated. It is among the objections made in this case that the-court should have allowed, against the balance found due from the guardian, his commission as such. The objection is not tenable. Commission is compensation for the performance of duty. The performance of such duty is the consideration justifying commission. In this case there was a total failure of duty, and ■ the dis-allowance of any charge, though asked in behalf of the604 surety, was proper. State to use v. Berning, 74 Mo. 87; McKnight v. Walsh, 23 N. J. Eq. 136; Walker v. Walker, 9 Wall. 743. If plaintiff will, within fifteen days, enter a remittitur for the amount of the difference between ten per cent, compound interest and six per cent, simple interest for five years before the judgment below, the time when the ward became of age, we will affirm the judgment ; otherwise it will be reversed and the cause remanded. Philips, P. J., concurs. Hall, J., absent.