State ex rel. v. Hardy et al.

rainfall. This was error. [Cooney v. Pryor, 203 S. W. 630, 631.] We cannot say that the instructions when taken as a whole cured the error, for the jury could well have followed No. 2 and found a verdict, and we have no way of knowing that they did not. The instruction was not merely indefinite or uncertain in a matter which the other instructions rendered definite and certain, but, within and of itself alone, authorized a verdict and in that respect was confusing, and also conflicted with defendant's instructions. Hence it cannot be said that, taking all the instructions and reading them as a whole, no error existed by reason of the defect in said instruction No. 2.

For this reason the judgment is reversed and the cause is remanded for a new trial. All concur.

THE STATE OF MISSOURI at the Relation and to the use of J. M. SHORT, Guardian and Curator of the Estate of GRACE MILLER, GOLDIE MILLER and HENRY MILLER, Respondent, v. H. B. HARDY, EDW. C. NISCHWITZ, G. F. TISING, HEMAN C. TISING and JOHN L. TISING, Executors of the Last Will and Testament and Estate of J. F. TISING, deceased, Appellants.

Kansas City Court of Appeals, December 2, 1918.

1. PUBLIC ADMINISTRATORS: Guardians and Curators: Liability on Bond. A public administrator was made guardian of the estate of some minors and kept the money of their estate all in one fund and converted part of the fund to his own use. Thereafter, before the conversion was discovered, at the termination of his term of office, he gave a new bond as guardian in his private capacity. Held, that the sureties on the last bond cannot be held liable for the amount converted while the principal was public administrator and before they executed the bond.

2. GUARDIAN AND WARD: Evidence: Conversion. Where the guardian of a number of estates kept the money of the estates all in one fund and converted part of it to his own use prior to

3.

State ex rel. v. Hardy et al.

the execution of a new guardianship bond, the guardian in an action against the sureties on the new bond, will not be allowed to testify that the conversion was from the money of any certain estate.

-: Principal and Surety: Final Settlement: Sureties. A final settlement of a guardian, showing certain sums due the ward is not binding on the sureties on his bond, where they can show that the default causing the loss was committed under a prior bond before their bond was given.

Appeal from Moniteau Circuit Court.-Honorable J. G. Slate, Judge.

REVERSED AND REMANDED.

S. C. Gill and J. B. Gallagher for appellants.

Embry & Embry for respondent.

TRIMBLE, J.-Defendant Hardy was Public Administrator and ex-officio Public Guardian and Curator of Moniteau county for three sucessive terms, the last of which ended January 1, 1909. During his last term, and on July 30, 1906, he was ordered by the probate court to take charge of the persons and property of Grace, Goldie and Henry Miller, minors. He did so, and continued as Guardian and Curator of said minors through the remainder of his term and thereafter until November 9, 1914, when he voluntarily appeared in the probate court and asked to be permitted to execute a new bond as guardian and curator and that his bond as public administrator be discharged. The court made an order permitting him to execute said new bond, which he did; and same was filed and approved by an order which further directed that "the said bond as public administrator as aforesaid be, and the same is hereby, finally discharged from further liability in this behalf."

Hardy continued as guardian and curator, under said new bond, until November 26, 1917, when, upon proof of the publication of four weeks' notice in a news

State ex rel. v. Hardy et al.

paper of the presentation of his application for permission to resign, he filed what the probate records term a "final settlement" showing a balance due the estate of $3183.61, which amount the probate court ordered to be forthwith paid over to his successor Short, who, on the same day, was duly appointed and qualified as such. Hardy aso filed his resignation which was accepted by the court; but he failed to pay over to his successor the balance found to be due or any part thereof.

Whereupon his successor brought this suit on the aforesaid bond against him and his sureties, one of whom is dead but whose estate is represented herein by his executors. Said bond recites that whereas Hardy had been appointed guardian of the persons and curator of the estates of said minors, "Now, if the said H. B. Hardy shall faithfully discharge his duties as said guardian and curator, according to law, then this bond to be void," etc.

The petition, after alleging the appointment of the successor guardian and the execution of the bond sued upon, set up the resignation of Hardy, the filing of said settlement showing the balance hereinbefore mentioned, the order to pay over said balance, and the demand therefor in open court by said successor; and, for the breach of said bond, charged the failure and refusal of said Hardy to pay said amount as ordered.

Hardy filed no answer but the sureties defended upon the ground that Hardy converted the funds before the execution of the bond sued on; and that on the 9th day of November, 1914, the day said bond was executed, and for at least six months prior thereto, he did not have, and had not had, in his possession or under his control any money notes or personal property belonging to said heirs except certain yearly rents from real estate which the sureties alleged had been duly accounted for in his settlements. All this was denied by the reply.

The case was tried before the court without a jury. The judgment recites that the court found that, after

State ex rel. v. Hardy et al.

notice of his intention to resign, duly published according to law, Hardy filed his written resignation, made a final settlement and his resignation was accepted; that the said settlement showed he was indebted to said minors in said sum of $3183.61 and that the probate court had ordered the same paid forthwith over to his successor who then and there demanded it of him in open court, but that he had failed and refused to pay it or any part thereof; wherefore, judgment was rendered for $6000, the penalty of the bond, to be satisfied by the payment of $3183.61 and costs. The sureties appealed.

After defendants' demurrer to the evidence had been overruled they asked the court to give two declarations of law, the first to the effect that if the court found Hardy did not have the estate of said minors in his hands or possession at the time of the execution and approval of the bond sued on, but had used it in private business or in settlement of other estates in his hands prior to November 9, 1914, then the fact that he charged himself up in settlements of the estates was not binding upon the defendant sureties and the finding should be in their favor. The second declaration was to the effect that if the court found that at the time of the approval of the bond sued on, Hardy, as curator, had used the assets of said estate in his private business, or in settling up other estates of which he may have been in charge, and did not have said assets in his hand, or in his possession or under his control, although he was solvent, then the finding should be in favor of the defendant sureties, notwithstanding the fact that Hardy kept up his settlements as curator and charged himself with the balances thereof as though he had the moneys of the estate in hand. Both of these declarations were refused.

It is defendants' contention, first, that the court should have sustained their demurrer to the evidence; second, that the court erred in refusing each of said declarations.

State ex rel. v. Hardy et al.

Prior to and after the giving of the bond sued on, to-wit, November 9, 1914, Hardy made annual settlements with the probate court wherein he charged himself with a balance expressed merely in dollars and cents with no statement as to what the estate consisted of or how it was invested, and the balance on each settlement was carried over into the next in the same way. The balance on the first settlement was a little over $4000 and the balances continued to run between $3800 and $3135.95, the last named sum being the balance on the 8th settlement made August, 1914, the last settlement made before the new bond was executed. This balance. was cerried over into the 9th settlement, made in August, 1915, the first settlement under the new bond; and the balance on the settlement made August 19, 1916, was $3211.62 and the last settlement made on November 26, 1917, the date of his resignation, showed a halance, as before stated, of $3183.61.

With reference to whether defendants' demurrer should have been sustained, we think that regardless of the questions hereinafter discussed, the court did right in overruling the demurrer. For, without regard to the time when the conversion occurred, the settlements made under the new bond show that about $450 of rents came every year into the curator's hands and, in accounting for these, Hardy credited himself with various sums for his services. Now, the rule is that a curator who has converted assets of the estate is not entitled to pay for his services since pay is an incident to a faithful discharge of the trust. [State to use v. Berning, 74 Mo. 87, 100.] So that, the curator has not fully accounted for the rents that came into his possession after the execution of the bond sued on but owns the said sums which he paid to himself. It would seem that this would justify the court in refusing to sustain the demurrer, and would authorize a judgment for the amount of these credits against the sureties on the bond in suit even if said sureties should not be held responsible for any other amount.