Windleton v. O'Brien

Ellison, J. Newton Hanby died intestate leaving a small personal estate and a small tract of land occupied as a homestead. He left surviving him six children, four of whom were of tender years and entitled to the homestead aforesaid until they should arrive at the age of sixteen years. Section 5439, Revised Statutes, 1889. The rental value of the homestead was from $50 to $60 per year. It was incumbered by a mortgage for $170, executed ]oy Hanby in his lifetime. An administrator was appointed, and so also defendant O’Brien as guardian for the four infant children aforesaid. There was paid out of the estate to O’Brien as guardian the sum of $400, as is provided by statute, as the absolute property of these minor children. Afterward, the administrator of the estate and O’Brien, the guardian, united in a petition to the probate court of Morgan county, reciting that the minor children were aged eleven, eight, five, and three years, respectively; the fact of the mortgage on the homestead and that it could be rented for the benefit of the children for from $50 to $60 a year. That the estate had no funds with which to discharge the mortgage. That the estate of Hanby was indebted to various creditors, other than the mortgage creditor, in the sum of $235, and that there was not over $50 in assets with which to pay such debts. The petition further stated that in the judgment and belief of the petitioners it would be for the best interest of the estate and the benefit of the minor children for the guardian to pay off said mortgage out of the moneys of said minor children, so as to save them the homestead aforesaid. The probate court heard evidence on the petition and found that it would be for the best interest of the minors to discharge the mortgage, and made its order directing the guardian to do so. Defendant O’Brien, as such [679] guardian, paid $143.50 on such mortgage in partial discharge thereof. He was afterward allowed credit by the probate court in his settlement for the expenditure of that sum. Afterward, on his removal from the state, this plaintiff was appointed guardian for said minors in defendant O’Brien’s stead. This plaintiff then instituted this proceeding in the probate court against O’Brien and his sureties for the said sum of $143.50, paid on the mortgage, and for $65 as accumulated rent, on the homestead. The probate court gave judgment for plaintiff for $47.25 as rent, but refused judgment for the money paid on the mortgage. On plaintiff’s appeal to the circuit court, the only question determined was as to the payment on the mortgage; that court holding that the order of the probate court to defendant O’Brien to discharge said mortgage was beyond the power of such court and void. Defendant brings the case here. guardian and curator: jurisbatecowt?ro" iXntsfpa?-' brea”ceo£cnn" We feel constrained to hold that the circuit court properly declared the order of the probate court directing the guardian to discharge the mortgage to be void. The whole matter connected with the transaction, including the conduct of the probate judge and the defendant guardian, seems to have been done with the intention to benefit the infant children and save for them their homestead, and their action seems to have been characterized by the utmost good faith, the sole view being to benefit the infant children. And such benefit doubtless resulted from their action. But it seems there was no authority for it lodged with the probate court. That court has only such powers, as are confided by statute, and the requisite authority is not found there. Woods v. Boots, 60 Mo. 546. It is, however, certain that a condition was presented to the guardian which demanded some action on [680] his part to save to his wards their homestead, and in the equity powers of the circuit court he could, on proper presentation and under proper limitation, have obtained something in the protective nature he sought. We think the evidence, in connection with the admissions, sufficiently shows the nature of the guardian bond sued on. The admission on this subject was doubtless intended to cover that point. settlement effect of. The point made on the credit given to the defendant guardian in his annual settlement for the sum paid on the mortgage must be ruled against defendant. The settlement being an annual exhibit, did not bar the right to question the credit or the transaction upon which it was based. The judgment will be affirmed. All concur.