State ex rel. Young v. Cook

REYNOLDS, P. J. (after stating the facts). — In his argument before us learned counsel for appellant state that the sole and only questions arising in the record are, first, “under the laws of this State has a mother, who is a married woman, owning property in her own right, and who dies leaving minor children, a right by last will and testament to name a testamentary curator, other than the father, for those minor children? Or is such a provision in her will null and void, and can the father, the surviving husband, notwithstanding that the mother has named a testamentary curator, who has accepted the appointment and duly qualified, go into the probate court and have the appointment of such testamentary curator set aside and canceled, and be appointed as curator in lieu of the testamentary curator?” Learned counsel for respondent here accepts this as correct. A second proposition made by counsel for appellant, namely, that where the testamentary curator has duly qualified and the father files his application in the probate court to have the curator removed and be appointed in his stead, and the probate court refuses so to do, is mandamus the proper — 283 — remedy? On this second proposition, learned counsel for respondent here claims that it would be more accurately stated to put it in this form, namely, “where the probate court, disregarding the superior right of the father, appoints another curator for his children, and where the father files a timely application to the court to fix his bond and allow him to qualify as natural curator, and to clear the way for that by nullifying the prior appointment, and the probate court refuses to allow him to qualify as such curator, may the probate court be directed by mandamus, to permit the father to. qualify?” As to this, that is, whether mandamus or an appeal should lie here, we have concluded to pass it, deeming it is better and more conducive to the speedy ending of litigation to determine this case on its real merits. We are more inclined to do this for the reason that it cannot be said that the authorities in our State are altogether in harmony on it. We refrain from here determining it one way or the other. Learned counsel for respondent contends that under the plain provisions of the statute the appointment of Drunert was premature and unauthorized because made without notice to him and without giving him an opportunity to give bond and qualify, and that upon respondent’s appearance and application for leave to •qualify as curator, it was the duty of the court to remove Drunert and allow him to qualify. Section 403, Revised Statutes 1909, is referred to for this. That section provides : “In all cases not otherwise provided for by lawy [italics ours] the father, while living, and after his death, or when there shall be no lawful father, then the mother, if living, shall be the natural guardian and curator of their children, and have the custody and care of their persons, education and estates; and when such estate is not derived from the parent acting as — 284 — guardian and curator, such parent shall give security and account as other guardians and curators, and if such parent refuse or neglect to give such bond, the probate court, or judge in vacation, shall appoint some competent person as curator to take charge of and manage such property.” This section was amended by Act approved March 20,1913 (Laws 1913, p. 92) to include the mother along with the father, giving the mother equal powers, rights and duties along with the father and continuing' it to the survivor in case of the death of either. But this amendment does not apply to the present action, and we need not consider it, treating- the case as one which arose before section 403 was amended; It is further contended that under section 404, Revised Statutes 1909',’ the father, when it is sought to pass him by as curator in favor of another, is entitled to ten days’ notice of the proposed action. It is further contended that under section 408, Revised Statutes 1909, the power of appointment by will of guardians of the person, is only given when both parents are dead, and it is argued that when the term “guardian” is used, it includes both guardian of the person and curator of the estate. It is true that when using- the term “guardian” generally and without further determination, the term covers both guardian of the person and curator of the estate. But our law very clearly provides for the separation of the two offices. Thus section 408, Revised Statutes 1909, above referred to, provides: ‘ ‘ The lawful parent of any minor, not having been adjudged unfit for the duties of the guardianship of such minor, may, when the other lawful parent is dead, and only in such case, by will, appoint a guardian of the person of such minor, who, if he accept, shall give bond and security, and be in all things upon the same footing as guardians appointed by the court or chosen — 285 — by tbe minor, except that the minor shall not be allowed to choose another guardian upon arriving at the age of fourteen years, unless the testamentary guardian decline to serve longer and notify the court thereof, or his appointment be revoked.” Section 413, Eevised Statutes 1909, provides: “Whenever the court, or judge in vacation, shall be satisfied that it will be for the advantage of minors to appoint a curator of the estate, different from the guardian of the person, it shall be lawful to make such separate appointment for minors under fourteen years of age and to allow those over that age to make such separate choice, subject to the approval of the court as heretofore directed.” Our courts have recognized this in many cases. Thus, In re Estate of Grimes, 79 Mo. App. 274, a married woman, by her last will, requested that her children be left in care of her husband and that her father assist and help in general supervision of things, and that they be appointed guardians, the testatrix writing, “I do not want anyone else to act in this matter but the above named. And that the children have a good education is my desire.” The probate court of Newton county appointed one Putman guardian and curator of the minor children. The grandfather learning of this appeared in that court and asked to have the appointment set aside and that he be appointed guardian, producing the will, which contained the above provision. It appeared that the father had refused to qualify. Upon the grandfather appearing and applying he was appointed “guardian” by the probate court and qualified, Putman being removed. Prom this Putman appealed to the circuit court, where the action of the probate court was reversed. Prom this the grandfather appealed to our court, where the circuit court was in turn reversed and the action of the probate court affirmed. It was contended by Put286 man that the appointment of the grandfather was as guardian only and not as curator, and that he (Putman) having been first appointed curator was entitled to hold. Our court said (l. c. 278): “No such narrow and technical construction can be given to the appointment of Bass (the grandfather). The will plainly indicates that the testatrix intended that he should be both guardian of the person and of the estate, and the authorities are that unless the testamentary guardian is restricted by the terms of the' will that he takes the custody of the person and the estate of his wards. . . . Testamentary guardians possess the same powers and have the same rights as other guardians. ... Guardian and curator, when applied to an estate, have the same meaning. [Easley v. Bone, 39 Mo. App. 388.] And where one is appointed guardian, unless the appointment is restricted to the person, he is entitled to the custody of both the person and estate of the ward. Because a curator of the estate of a minor other than the guardian of the person may be appointed under the special provisions of sections 5280 or 5288, Revised Statutes 188$ (now sections 404 and 413, Revised Statutes 1909), it does not follow that it is necessary in an order appointing a guardian of the person and estate, that the order should designate the appointee as both guardian and curator. To designate him as guardian is sufficient to give him the custody of the person and of the estate of his ward. ’ ’ We accordingly reversed the action of the circuit court and affirmed that of the probate court. In the case In re Breck, 252 Mo. 302, 158 S. W. 843, our Supreme Court, referring to In re Grimes, supra, said (l. c. 330) that in that case the guardianship sought to be conferred “being conferred by general words was a general guardianship, i.- e., both a guardianship of the persons and a guardianship of the — 287 — estates of the Breck children. ” No authority, however, that we know of confounds the duties, or obligations or responsibilities of the guardian of the person and curator of the estate, when either by the law, or by a will or other instrument, a distinction is intended to be made. In the case at bar, the mother, her husband and the father of the children living, did- not attempt to disturb the guardianship of their persons, which the law placed in the father. Very distinctly she committed to another other than the father, that is to Mr. Drunert, the curatorship of the estate of her children alone. She did this by will, that is to say, by her will she made other provision for the curatorship of the estates of her children. In this the probate court followed the directions of that will, relying upon section 583, Revised Statutes 1909. That our statutes and decisions recognize the right of appointment of a testamentary curator, is clear. But we cannot agree with the contention of the appellant here, that the probate court was, by force of that will, or under the law, bound to recognize the appointment so made, and precluded from making any appointment as curator, other than, the one named in the will. It was for the probate court, before naming that person, to be satisfied that he was a fit person. The statute, by section 413, as we have seen, in terms, placed the duty upon that court to select a'fit person as curator, whenever it or its judge ‘ ‘ shall be satisfied that it will be for the advantage of minors to appoint a curator of the estate, different from the guardian of the person.” Herein is found a provision of the law other than the general one made by section 403. That is to say, section 403 provides that “in all cases not otherwise provided for by law,” the father, if living, shall be the “natural guardian and curator.” By section 413, it is provided that when the probate court or judge thereof is “sat — 288 — Isfied that it will be for the advantage of minors to appoint a curator of the estate, different from the guardian of the person,” it shall be lawful to do so. Thus it is here “otherwise provided by law” for the appointment of one other than the father. Beyond question, the meaning of our law before the amendment of 1913, was that the father, when living, should be the natural guardian of the person of the minor children. But there is no such ironclad provision as to curatorship. Section 413 makes the exception. We do not understand that the right of the father to act as natural guardian of the persons of his minor sons is here questioned or involved. The probate court did not appoint Drunert guardian of the persons of the minors; it appointed him merely as ■curator of their estates, as it had the Undoubted right -to do under section 413. That in doing so he was largely governed by the provisions of the will of Mrs. Young, is doubtless true. The question is, was his action within the law Í Outside of the will, when he found that Drunert was a fit person to be such curator, section 413 authorized him to make the appointment. In ■doing so, we think the probate judge was within his night. In addition to this, and in the absence of ahy •showing of the unfitness of Drunert to act as curator, we think the probate judge acted wisely in lending forge to the provisions of the will, not holding, to repeat, that the will concluded him or divested him of the power conferred upon him by section 413. So we hold that the action of the circuit court was error in ■overturning that of the probate court. We might add that in the appointment of a curator of the estates of minors, a discretionary power being lodged in the probate court to determine the fitness of the applicant, the circuit court, without any reservation of the right in the probate court to inquire — 289 — Into the fitness of Yonng, saw fit to direct that court to appoint him. While we may concede, for the purposes of this case, without deciding it, that the probate court may, by mandamus, be compelled to remove one and appoint another as guardian and curator, it is not within the power of the circuit court, or of any court, by mandamus, arbitrarily to compel that court to select any particular person or take any particular line of action, when judicial discretion is involved. The most that could have- been done under this writ of mandamus, would have been to direct the probate court to act on the relator’s claim in accordance with the principles which the circuit court may have laid down. It had no power to compel that court to a definite line of action. It is urged that under section 404, Revised Statutes 1909, Young, the father, was entitled to notice before he was passed by as curator and Drunert appointed. We do not think this section has any application to the situation here presented. Our conclusion is that the judgment of the circuit court should be reversed. It- is so ordered and the cause remanded to that court with directions to set .aside and quash the order which it issued, in this cause .against the appellant as probate judge. Nortonv and Allen, JJ., concur.