Robords v. Bryan

BLAND, P. J. In 1894, the plaintiff qualified in the probate court of Greene county, Missouri, as guardian of Charles Love, minor, and the son of a deceased soldier. The ward was without visible assets. He had a right, however, under the laws of the United States, as a descendant of a deceased soldier, to make an original homestead entry, not exceeding one hundred and sixty acres, of the public lands anywhere in the territory of the United States. ' Plaintiff had been in the homestead entry business for a number of years and had acquired extensive information in respect to lands subject to such entries in the northwestern states. In November, 1894, he went to St. Cloud, Minnesota, and made homestead entry No. 17157 in the name of his ward and also made a cash entry in the name of his ward of fourteen and fourteen-hundredths acres adjoining the homestead lands, paying out of his own means the cost and expenses of the two entries. Before going to St. Cloud he had corresponded with one L. M. Linneli of Minnesota in respect to making the homestead entry for the benefit of his ward and had agreed by letter with Linneli that if he would make the improvements required under the homestead law on the lands and make final proof, that he (plaintiff) would ■sell and convey the lands to Linneli for five dollars an Acre when the patent was obtained. It seems that [252] other parties got wind of the unlawful agreement- between Linnell and plaintiff .and contested the homestead entry. Plaintiff defended these contests and was successful in his defense. In order to perfect the homestead entry it became necessary to have a curator of the minor appointed in Minnesota. One was appointed and it is shown that an expenditure of $2240.14 was allowed against the estate in Minnesota for services rendered in and about perfecting the homestead entry and in making a sale of the lands. In 1890 a new guardian was appointed by the probate court of Greene county. After the perfection of the homestead entry and the patent was obtained therefor, the lands of the ward were sold for six thousand dollars and the balance, after deducting the expenses of the guardianship in Minnesota, was paid over to the defendant, the present guardian. On April 14,-1900, plaintiff filed his claim, in the probate court of Greene county, against the estate of the minor as follows: “For expenses, $167.67. For compensation,' $100. ’ ’ In February, 1900, he filed another claim in the same court as follows: “For expenses, $280.07. For compensation, $150.” On the first claim the court allowed the expense account of $167.67, but disallowed the claim for compensation. -No appeal was taken from this action of the probate ■court and the $167.67 allowed was paid plaintiff by the .defendant. The demand now under consideration is .for fifteen hundred dollars as compensation for plaintiff’s services as guardian. Plaintiff was allowed $425 on this demand by the probate court, and defendant appealed to the Greene circuit court where on a trial de novo the issues were submitted to the court who, after hearing the evidence, made the following finding: “The court finds from the evidence that plaintiff was •acting more with a view to his own interest in the matter than the interest of the estate, and further finds that he has heretofore, been reimbursed for all .outlays [253] by him,” and rendered judgment for the defendant from which plaintiff appealed. The finding' of the court, that plaintiff had been reimbursed for all outlays made by him, is supported by the evidence. Up rendered no services after, he was allowed $167.67 by the probate court. His acquiescence in the judgment of that court is conclusive, and he is estopped thereby to demand any further compensation for expenses. The claim here presented, however, is not for expenses but for compensation and the record shows that plaintiff has never received any compensation for his services as guardian. He is entitled to something unless his conduct was such as to deprive him of the right to claim compensation. The learned trial judge was clearly of the opinion that the defendant, in respect to the homestead entry made in the state of Minnesota, was acting more with a view to helping himself than for the benefit of his ward. The correspondence' between the plaintiff and Linnell and the deposition of Linnell leaves no room to doubt that .the learned circuit judge came to a correct conclusion; in fact this correspondence shows that plaintiff was acting with an eye almost solely to his own interest, and that the right of the ward to make a homestead entry was a right that he seized upon for the purpose of putting money in his own pocket,- and we think it is also fairly infer-able that the unusual outlay of money in order to protect the interest of the ward in the homestead entry in Minnesota was made necessary by the illegal agreements made between plaintiff and Linnell in respect to the lands. To allow plaintiff compensation in such, circumstances would be to compensate him for his effort to make a profit for himself out of the estate of his ward. The judgment is for the right party and is affirmed. Reyburn and Goode, JJ., concur.