Opinion
Nos. 43234 and 43252.
November 10, 1952. Rehearing Denied, December 8, 1952.
A guardian of an insane person borrowed money to pay proper expenses. The ward died shortly afterwards, and claims are asserted against the decedent's estate by the persons making the loans. The reasonableness of the expenses may not be raised by collateral attack after final settlement of the guardianship. If the loans were not properly authorized, the claimants are entitled to equitable subrogation, and their claims were properly allowed. The administrator was a necessary and proper party, but the guardian was not.
1. GUARDIAN AND WARD: Duty of Guardian and Curator. It was the duty of the guardian and curator of a person of unsound mind to arrange for a suitable home, food, clothing and other necessaries, the reasonable value of which is a proper charge against the ward's estate, and as curator to manage the ward's estate, subject to the superintending control of the probate court.
2. GUARDIAN AND WARD: Judgments: Proper Charges Against Estate: No Collateral Attack After Final Settlement. Hospital and medical expenses were proper charges against the estate. They were found reasonable by the probate court, and the final settlement of the guardian may not be collaterally attacked. And the propriety of paying a note secured by a deed of trust on the real estate of the ward is not subject to collateral attack.
3. GUARDIAN AND WARD: Unsecured Loans Not Prohibited: Validity Not Ruled. There is no statute prohibiting a guardian from making an unsecured loan. But the validity of such loans is not ruled.
4. EQUITY: Guardian and Ward: Unsecured Loans: Right of Subrogation. If unsecured loans made for the purpose of paying items for which the ward's estate was legally liable were made without legal authority, then the parties making such loans would be equitably subrogated to a claim against the estate of the ward after his death.
5. EQUITY: Guardian and Ward: Executors and Administrators: Parties: Claim Against Decedent's Estate For Subrogation: Guardian Not Proper Party: Appellant Not Prejudiced. The petitions sought allowance of respondent's claims against the estate of the deceased and stated facts showing that respondents were entitled to subrogation. The guardian was not a proper party, but no decree was rendered against him as guardian, but only as administrator, so the appellant heir was not prejudiced.
6. GUARDIAN AND WARD: Executors and Administrators: Parties: Termination of Powers of Guardian: Administrator Necessary Party. Upon the death of the ward the guardian was without further power except to settle his account and deliver the estate to the ward's administrator, who happened to be the same person. The administrator was a necessary and proper party to these actions.
Appeal from Carroll Circuit Court; Hon. James S. Rooney, Judge.
AFFIRMED.
Chas. L. Graham and Christian F. Stipp for appellant.
(1) Plaintiff's petition fails to state facts sufficient to constitute a cause of action. The petition bases plaintiff's cause of action upon the existence and breach of an express contract and it states a cause of action upon an express contract or it states no cause of action at all. 12 Am.Jur., Contracts, sec. 4, 15A W. P., Perm. 528; Farris v. Faris' Estate, 212 S.W.2d 71; Whitworth v. Monahan's Estate, 111 S.W.2d 931; Clements v. Yates, 69 Mo. 623; Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Missouri Digest, Contracts, sec. 346 (12). (2) The petition does not state a cause of action against Wade W. Maupin, Guardian of the Person and Estate of Richard F. Cook, Insane. Evans v. York, 216 S.W.2d 124; Greever v. Barker, 316 Mo. 308, 289 S.W. 586; Sec. 458.550, R.S. 1949. (3) The petition does not state a cause of action against the heir of Richard F. Cook, Deceased, or against the heirs of Lockie A. Cook, Deceased. Vaughan v. Compton, 235 S.W.2d 328; Sec. 401.018, R.S. 1949. (4) The petition does not state a cause of action against Wade W. Maupin, Administrator of the Estate of Richard F. Cook, Deceased. Greever v. Barker, 204 Mo. App. 190, 223 S.W. 1087; Secs. 458.380-458.420, R.S. 1949. (5) The express contract (the promissory note) upon which plaintiff bases his right to recover is void. Guardians of insane persons have only such powers as are prescribed by statute. In re Cordes' Estate, 116 S.W.2d 207; Scott v. Royston, 223 Mo. 568, 123 S.W. 454; In re Farmer's Ex. Bank, 327 Mo. 640, 37 S.W.2d 936; In re Keisker's Estate, 350 Mo. 698, 168 S.W.2d 96; Grove v. Reynolds, 100 Mo. App. 56, 71 S.W. 1103. (6) The guardian was without authority to execute the promissory note and said note is void. Chap. 458, R.S. 1949. (7) A guardian cannot bind the estate of his ward by contract. Michael v. Locke, 80 Mo. 548; Grove v. Reynolds, 100 Mo. App. 56, 71 S.W. 1103; Buie's Estate v. White, 94 Mo. App. 367, 68 S.W. 101; Greever v. Barker, 204 Mo. App. 190, 223 S.W. 1087; Greever v. Barker, 316 Mo. 308, 289 S.W. 586; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76. (8) All claims against the guardian for expenses of guardianship must be presented to the guardian and must be included in his final settlement. Coleman v. Farrar, 112 Mo. 54, 20 S.W. 441; Greever v. Barker, 204 Mo. App. 190, 223 S.W. 1087.
John Franken and D.D. Thomas, Jr., for respondents.
(1) Plaintiff's petition is one in equity and alleges an aggregate claim of five hundred dollars ($500) for money advanced by plaintiff for the care, support and maintenance of Doctor Richard F. Cook at a time immediately prior to and subsequent to the time he was adjudicated to be of unsound mind. Berry v. Stigall, 162 S.W.2d 126, 253 Mo. 690; McKay v. Snider, 790 S.W.2d 886; Tock v. Tock, 120 S.W.2d 169. (2) Plaintiff, to sustain his claim, alleged facts showing the beneficial interest of the defendants in the estate of Doctor Richard F. Cook, and, as such interested parties, were made defendants. Sec. 507.030, R.S. 1949. (3) It was not necessary for the guardian to obtain an order of court authorizing encumbrance of his ward's property when the money was entirely used for the care, maintenance, support and other necessaries of and for his ward. St. Vincent's Sanitarium v. Murphy, 209 S.W.2d 560; Tock v. Tock, 120 S.W.2d 169 (4) The claim sued upon is not based on the promissory note attached to the petition, but such note is merely evidence of the aggregate amount of the claim for money advanced by plaintiff for the care, support and maintenance of Doctor Richard F. Cook. Tock v. Tock, 120 S.W.2d 169. (5) The claim was properly presented to the administrator of the estate of Doctor Richard F. Cook as the power of the guardian terminated upon the death of the ward. Tock v. Tock, 120 S.W.2d 169; Hoffman v. Sawyer, 50 S.W.2d 675; Berry v. Stigall, 162 S.W. 126.
Daniel S. Millman for the First National Bank of Kansas City, Guardian and Curator of the Estate of Virginia Eleanor Flanagan, a Person of Unsound Mind, amicus curiae.
(1) The probate court has jurisdiction and power to authorize or approve contract of guardian for benefit of insane ward whether or not expressly authorized by statute. The organic jurisdiction of the probate court is constitutional. City of St. Louis v. Hollrah, 175 Mo. 79, 74 S.W. 996; Secs. 34, 35, Art. VI, Constitution of 1875; Laws 1877, p. 229; Secs. 16, 17, Art. V, Constitution of 1945; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76; State ex rel. Kowats v. Arnold, 356 Mo. 681, 204 S.W.2d 254; State ex rel. Ellsworth v. Fidelity Deposit Co. of Maryland, 235 Mo. App. 850, 147 S.W.2d 137. (2) The organic constitutional jurisdiction of the probate court cannot be nullified or restricted by statute. State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 1001; 11 Cyc., p. 706; State ex rel. Lamm v. Mid-State Serum Co., 272 S.W. 99; State ex inf. Crow v. Cowherd, 177 Mo. 205, 76 S.W. 79; In re Letcher, 269 Mo. 140, 190 S.W. 19; Van Loo v. Osage County, 346 Mo. 358, 141 S.W.2d 805; In re Sizer, 300 Mo. 369, 254 S.W. 82. (3) The probate court is a court of general jurisdiction over all matters pertaining to probate business. It is a court of record whose orders are as effective as courts of more general jurisdiction. Sec. 17, Art. V, Constitution of 1945; McKay v. Snider, 354 Mo. 674, 140 S.W.2d 886; In re Sheldon's Estate, 354 Mo. 232, 189 S.W.2d 235; Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318; 1 Woerner, The American Law of Administration, pp. 324-330; Ross v. Pitcairn, 179 S.W.2d 35; Robbins v. Boulware, 190 Mo. 33, 88 S.W. 674; Johnson v. Beazley, 65 Mo. 250; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d l.c. 84; Linville v. Repley, 347 Mo. 95, 146 S.W.2d 581; Scanland v. Walters, 324 Mo. 1084, 26 S.W.2d 603; Viehmann v. Viehmann, 298 Mo. 356, 250 S.W. 565; Orchard v. Store Co., 225 Mo. 414, 125 S.W. 486; Wright v. Hetterlin, 277 Mo. 99, 209 S.W. 871; Horter v. Petty, 266 Mo. 296, 181 S.W. 39; State ex rel. Ellsworth v. Fidelity Deposit Co., 235 Mo. App. 850, 147 S.W. 131. (4) It has plenary original jurisdiction over all matters pertaining to probate business. Barnes v. Boatmen's Nat. Bank, 355 Mo. 1136, 199 S.W.2d 917; Downey v. Schrader, 353 Mo. 40, 182 S.W.2d 320; State ex rel. Kowats v. Arnold, 356 Mo. 681, 204 S.W.2d l.c. 257; Smith v. St. Louis Union Trust Co., 340 Mo. 979, 104 S.W.2d 341; Campbell v. Campbell, 165 S.W.2d 851; State ex rel. Stetina v. Reynolds, 286 Mo. 120, 227 S.W. 47; Hoffman v. Hoffman's Executor, 126 Mo. 486, 29 S.W. 603; In re Lietman's Estate, 149 Mo. 112, 50 S.W. 307; Gentry v. Gentry, 122 Mo. 202, 26 S.W. 1090; Green v. Strother, 201 Mo. App. 418, 212 S.W. 399; Davis v. Roberts, 206 Mo. App. 125, 226 S.W. 662; Collins v. Truman, 14 S.W.2d 526; In re Helm's Estate, 136 S.W.2d 421. (5) The probate court has jurisdiction and power independent of statute to authorize and approve such contracts. Its jurisdiction includes inherent implied and incidental powers. State ex rel. Bovard v. Weill, 353 Mo. 337, 182 S.W.2d 521; Head v. New York Life Ins. Co., 227 S.W. 429; State ex rel. Lancaster v. Jones, 89 Mo. 355, 1 S.W. 355; Frost v. Redford, 127 Mo. 492, 30 S.W. 179; State ex rel. Tygard v. Elliott, 82 Mo. App. 458; Citizen's Nat. Bank v. Shanklin, 174 Mo. App. 639, 161 S.W. 341; Wormington v. Wormington, 226 Mo. App. 172, 47 S.W.2d 172; Stempel v. Middletown Trust Co., 127 Conn. 206, 15 A.2d 305; Landwehr v. Holland, 284 Mich, 243, 279 N.W. 497. (6) Its jurisdiction includes equitable and common law powers. State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119; State ex rel. Bovard v. Weill, 353 Mo. 337, 182 S.W.2d l.c. 523; In re Jarboe's Estate, 227 Mo. 59, 127 S.W. 307; In re Lietman's Estate, 149 Mo. 112, 50 S.W. 307; In re Helm's Estate, 136 S.W.2d l.c. 426; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d l.c. 85; Stanton v. Johnson's Estate, 177 Mo. App. 54, 163 S.W. 296; In re Christian Brinkop R.E. Co., 215 S.W.2d 70; National Surety Corp. v. Burger's Estate, 186 S.W.2d 510; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; Groves v. Aegerter, 226 Mo. App. 128, 42 S.W.2d 974; State ex rel. Kemp v. Arnold, 234 Mo. App. 154, 113 S.W.2d 1143; State ex rel. Lancaster v. Jones, 89 Mo. 355, 1 S.W. 355; In re Ford, 157 Mo. App. 141, 137 S.W. 32; Pearce v. Calhoun, 59 Mo. 271; 32 C.J. 626, sec. 162; In re Connor's Estate, 254 Mo. 65, 162 S.W. 252; In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410. (7) Its jurisdiction includes powers based only on established practice. In re Mills' Estate, 349 Mo. 611, 162 S.W.2d 807; Hausaman v. Bruce, 185 S.W.2d 32; In re Bartels, 238 Mo. App. 715, 187 S.W.2d 348; In re Pfiffner's Guardianship, 194 S.W.2d 233; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347. (8) Probate court powers need no statutory sanction. Ex parte Zorn, 241 Mo. 267, 145 S.W. 62; In re Pfiffner's Guardianship, 194 S.W.2d 233; In re Claus' Estate, 147 S.W.2d 199; Ross v. Pitcairn, 179 S.W.2d 35; In re Allen's Estate, 307 Mo. 674, 271 S.W. 755; McCabe v. Lewis, 76 Mo. 296; State ex rel. Bovard v. Weill, 353 Mo. 337, 182 S.W.2d 521; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; Clinton v. Clinton, 223 Mo. 371, 123 S.W. 1. Jeffries v. Mutual Life Ins. Co., 110 U.S. 305, 4 S.Ct. 8, approved by this court in Boatmen's Nat. Bank v. Bolles, 202 S.W.2d 53. (9) The probate court has jurisdiction and power under the statutes to authorize and approve such contracts. By express provision or necessary implication from what is said. Secs. 458.070, 458.130, 458.140, 458.180, 458.310, 458.390, 458.400, 458.410, 458.490. R.S. 1949; Albert v. Key, 93 S.W.2d 1048; Rannels v. Gerner, 9 Mo. App. 506, 80 Mo. 474; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; State ex rel. Lancaster v. Jones, 89 Mo. 335, 1 S.W. 355; In re Moynihan. 332 Mo. 1022, 62 S.W.2d 410; Frost v. Redford, 127 Mo. 492, 30 S.W. 179; Citizen's Nat. Bank v. Shanklin, 174 Mo. App. 639, 161 S.W. 341; State ex rel. Kemp v. Arnold, 234 Mo. App. 154, 113 S.W.2d 1143. (10) By necessary implication from what is not said. Springfield City Water Co. v. Springfield, 353 Mo. 445, 187 S.W.2d 613; State ex rel. Fawkes v. Bland, 357 Mo. 31, 210 S.W.2d 31; State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646; In re Delany, 226 S.W.2d 366; Dietrich v. Jones, 227 Mo. App. 365, 53 S.W.2d 1059; In re Pfiffner's Guardianship, 194 S.W.2d l.c. 238; Groves v. Reynolds, 71 S.W. l.c. 1404; St. Vincent's Sanitarium v. Murphy, 209 S.W.2d l.c. 564. (11) Guardian has legal power to contract for benefit of insane ward and bind the estate whether or not authorized by statute. Guardian is not mere creature of statute and is not limited in powers to those expressly authorized by statute. Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Greever v. Barker, 316 Mo. 308, 289 S.W. 586; 1 Blackstone's Commentaries, p. 304; Sec. 1.010, R.S. 1949; Brandon v. Carter, 119 Mo. 572, 24 S.W. 1035; Frost v. Timm, 176 S.W.2d 833; In re Ford, 157 Mo. App. 141, 137 S.W. 32; Jeffries v. Mutual Life Ins. Co., 110 U.S. 305, 4 S.Ct. 8. (12) Guardian may contract obligations legally binding on ward's estate without express sanction of statutes. Binding obligations in general. Greever v. Barker, 316 Mo. 308, 289 S.W. 586; State ex rel. Bovard v. Weill, 353 Mo. 337, 182 S.W.2d 521; Head v. New York Life Ins. Co., 227 S.W. 429; Jeffries v. Mutual Life Ins. Co., 110 U.S. 305, approved in Boatmen's Nat. Bank v. Bolles, 202 S.W.2d 53; State ex rel. Lancaster v. Jones, 89 Mo. 470, 1 S.W. 355; State ex rel. Tygard v. Elliott, 82 Mo. App. 458; In re Pfiffner's Guardianship, 194 S.W.2d 233; Grove v. Reynolds, 100 Mo. App. 56, 71 S.W. 1103; Collins v. Trotter, 81 Mo. 275; Wisdom v. Shanklin, 76 Mo. App. 428; St. Vincent's Sanitarium v. Murphy, 209 S.W.2d 560; Folger v. Heidel, 60 Mo. 284; Brent v. Grace's Admr., 30 Mo. 253; Citizen's State Bank v. Shanklin, 174 Mo. App. 639, 161 S.W. 341; State ex rel. Strickland v. Strickland's Admr., 80 Mo. App. 401; In re Tucker, 74 Mo. App. 331; Cross v. Rubey, 206 S.W. 413; In re Lissner's Estate, 129 S.W.2d 1067. (13) Binding obligations for necessaries. McKay v. Snider, 190 S.W.2d 886; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64; In re Pfiffner's Guardianship, 194 S.W.2d 233; In re Lissner's Estate, 129 S.W.2d 1067; Cross v. Rubey, 206 S.W. 413; Citizen's State Bank v. Shanklin, 174 Mo. App. 139, 161 S.W. 341; In re Tucker, 74 Mo. App. 331; Folger v. Heidel, 60 Mo. 284; Brent v. Grace's Adm., 30 Mo. 253; State ex rel. Strickland v. Strickland's Admr., 80 Mo. App. 401; Grove v. Reynolds, 100 Mo. App. 71; St. Vincent's Sanitarium v. Murphy, 209 S.W.2d l.c. 564; Chap. 458, R.S. 1949; Secs. 458.180, 451.490, R.S. 1949; Reando v. Mosplay, 90 Mo. 251, 2 S.W. 405; Tock v. Tock, 120 S.W.2d 169; Barry County v. Glass, 160 S.W.2d 808. (14) In absence of prior court authorization, only risk is that court may not approve contract as necessary. Basic misunderstanding as to nature of remedy for collection from estate of ward. Greever v. Barker, 316 Mo. 308, 289 S.W. 586; Capelli v. Bennett, 357 Mo. 421, 209 S.W. 109; Andrews v. Blazzard, 23 Utah 233, 63 P. 688, 54 A.L.R. 354; 1 Schouler, Marriage, Divorce, Separation and Domestic Relations (6 Ed.), 1030, sec. 910. (15) Guardian may rely on subsequent court approval of contract to bind Ward's estate. St. Vincent's Sanitarium v. Murphy, 209 S.W.2d l.c. 564; In re Lissner's Estate, 109 S.W.2d 1067; Cross v. Rubey, 206 S.W. 413; In re Clanton, 171 Cal. 381, 153 P. 459; Kelly v. Kelly, 89 Mont. 229, 297 P. 470; Brent v. Grace's Admin., 30 Mo. 253; In re Mansour's Estate, 185 S.W.2d l.c. 369; In re Hain's Estate, 167 Pa. 55, 31 A. 337; In re Irving's Estate, 42 Cal.App.2d 629, 109 P.2d 748; State ex rel. Lancaster v. Jones, 89 Mo. 470, 1 S.W. 355; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; Sec. 458.550, R.S. 1949. (16) Assets of estate of insane person constitute fund for payment of its obligations. Creditor has right of direct recourse against assets of estate. Greever v. Barker, 316 Mo. 308, 289 S.W. 586; Secs. 458.350, 458.310, R.S. 1949; Sontag v. Stix, 199 S.W.2d 371; In re Keisker's Estate, 168 S.W.2d 96; Richardson v. Allen, 185 S.W. 252; State ex rel. Deckard v. Macom, 186 S.W. 1157; Seilert v. McAnally, 223 Mo. 505, 122 S.W. 1064; Williams v. Maxwell, 82 S.W.2d 270; Redmond v. Quincy, etc., Ry. Co., 225 Mo. 721, 126 S.W. 159; Sidwell v. Kaster, 289 Mo. 174, 232 S.W. 1005; Frost v. Redford, 127 Mo. 492, 30 S.W. 179; Sec. 485.550, R.S. 1949; Hoffman v. Sawyer, 227 Mo. App. 149, 50 S.W.2d 674; In re Pfiffner's Guardianship, 194 S.W.2d l.c. 238; St. Vincent's Sanitarium v. Murphy, 209 S.W.2d 560; Tock v. Tock, 120 S.W.2d 169; Reando v. Mosplay, 90 Mo. 251, 2 S.W. 405; Sawyer v. Lufken, 56 Me. 308; McKay v. Snider, 354 Mo. 674, 190 S.W.2d 806; Barnes v. Boatmen's Nat. Bank of St. Louis, 199 S.W.2d 907; Masters v. Jones, 158 Ind. 647, 64 N.E. 213; Fitzhugh v. District of Columbia, 109 F.2d 837; In re Mire's Estate, 135 Minn. 94, 160 N.W. 187; O'Mealey v. Grum, 186 Okla. 697, 100 P.2d 265; Peters v. Hanlin, 220 Ind. 175, 41 N.E.2d 604; Kelly v. Kelly, 89 Mont. 229, 297 P. 470; Caldwell v. Young, 21 Tex. 800. (17) Equitable doctrines will assist recovery by creditor from assets of estate. McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886; Capelli v. Bennett, 357 Mo. 421, 209 S.W.2d 109; Greever v. Barker, 316 Mo. 308, 289 S.W. 586; Berry v. Stigall, 253 Mo. 690, 162 S.W. 126; Valles' Heirs v. Fleming's Heirs, 29 Mo. 152; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64.
The Kansas City Court of Appeals reversed the judgments of the circuit court of Carroll County in the above entitled cases. The opinions of that court are reported at 248 S.W.2d 677 and 248 S.W.2d 685. This court ordered that they be transferred here for our review. For the purpose of argument and an opinion they were ordered consolidated.
Both cases grew out of the following facts:
Dr. Richard F. Cook, a resident of Carrollton, Missouri, was found to be a person of unsound mind by the probate court of Carroll County on October 18, 1948. Wade W. Maupin, an attorney of Carrollton, was duly appointed guardian of the person and estate of Dr. Cook on the same date. He qualified and filed an inventory of his ward's estate on December 6, 1948, which showed real estate of the value of $6,010 and personal property of the value of $3,848.07. The personal property consisted of $2,623.60 on deposit in the First National Bank of Carrollton, $4.47 found on the person of Dr. Cook, the remainder consisting of an automobile, household and office furniture and supplies, and 20 shares of Houston Oil Fields Co.
Prior to and at the time of the adjudication, Dr. Cook was in St. Luke's Hospital in Kansas City and his hospital, nursing and medical expenses alone exceeded $50 a day. A great number of bills had been incurred by Dr. Cook for his support, care and treatment prior to the date of the appointment of his guardian. Immediately after his appointment the guardian proceeded to pay the same. Due to Dr. Cook's illness the heavy expenses increased rapidly and the guardian became apprehensive about there being sufficient funds for his ward's care and maintenance, and on December 15, 1948, applied for and obtained an order of the probate court to sell the real estate. About this time Dr. Cook was transferred to the state hospital at Farmington, Missouri, where his care and maintenance would be less expensive. In the meantime, it was necessary for the guardian to obtain immediate funds to pay bills already incurred for the maintenance and care of his ward and on December 22, 1948, he orally applied to the probate court for and obtained an order authorizing him to borrow $1,500 to pay the bills accrued and for the future support and maintenance of his ward. The order to sell the real estate was never carried out because of Dr. Cook's death eleven days thereafter.
The guardian then went to Kansas City and wrote checks to pay his ward's hospital and nurses bills and the ambulance bill for taking Dr. Cook to the state hospital at Farmington. He also paid a small mortgage on his ward's real estate. The guardian then went to the president of the First National Bank of Carrollton and executed a note, signed by him as guardian of Dr. Cook, for $1,500, so that the checks he had written would be honored by the respondent bank.
On December 26, 1948, Dr. Cook died. Wade W. Maupin was appointed administrator of his estate on December 31, 1948. He made his final settlement as [113] guardian on January 18, 1949, which was approved by the probate court. He was thereupon discharged as shown by his inventory and appraisement. He turned over to himself as administrator the balance of the unexpended funds of his ward which amounted to $68.39, and the property he inventoried as guardian.
The payment of the money borrowed from the First National Bank of Carrollton is contested by the appellant, Jennie Vaughan, who is a sister of the deceased Dr. Cook and his only heir.
In the case of Williams v. Vaughan, No. 43,234, the facts in regard to Dr. Cook's being adjudged a person of unsound mind, the appointment of a guardian, et cetera, are the same as in the case of First National Bank of Carrollton v. Vaughan, No. 43,252.
Respondent Williams was a nephew of Dr. Cook's wife and spent a great deal of his time as a youth in the Cook home. Dr. Cook's wife died before he became insane. Apparently Dr. Cook was insane some time before he was adjudged so. Maupin wrote this respondent about Dr. Cook's condition and respondent sent Maupin $100 which was deposited to Dr. Cook's account in the bank. The evidence shows that this sum was used for Dr. Cook's support and maintenance after he was adjudged to be insane. Later respondent sent Maupin $400. He stated that the $100 and $400 were to be considered as an emergency advancement and loan, and that the same should be returned as soon as the property of the estate was converted into cash and made available for the use of the ward. As evidence of this agreement, the guardian executed a note in favor of respondent for $500.
The evidence in both of these cases clearly shows that all the money advanced or lent the guardian was used solely for the support and maintenance of his ward except a small amount that was used to pay a small note secured by a deed of trust on the real estate so that it might be sold to a better advantage.
Wade W. Maupin was appointed the guardian of the person of Dr. Cook and curator of his estate. As guardian it was his duty to take charge of his ward and to arrange for a suitable home, food, clothing and other necessaries, the reasonable value of which is a proper charge against the ward's estate. The curator is charged with the care and management of the ward's estate, subject to the superintending control of the probate court. It is his duty to collect the assets and to make proper investments thereof, and otherwise manage the estate. Whether the charge against the estate for necessaries furnished is reasonable is, under all circumstances, a question to be finally determined by the probate court. St. Vincent's Sanitarium v. Murphy, Mo. App., 209 S.W.2d 560.
In the case at bar, the hospital, nurses and medical care at Kansas City and the charges for ambulance transportation of Dr. Cook from Kansas City to Farmington were proper charges against his estate if, in the opinion of the probate court, these charges were reasonable. Since the final settlement of Maupin as guardian was approved by the probate court, these charges were reasonable. This question is not subject to collateral attack. "Probate courts are courts of record, and their judgments and orders must be respected." McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886, l.c. 891. For the same reason, the propriety of paying the note secured by a deed of trust on the real estate is not subject to collateral attack.
We do not understand that the appellant contends that the above enumerated items are not proper charges against the estate but that her main contention is that the loans made by respondent First National Bank of Carrollton and respondent Williams are illegal because under the statute the only way for a guardian to borrow money is to mortgage the available real estate belonging to the ward. Chapter 458, RSMo 1949, does authorize a guardian to mortgage his ward's real estate under certain conditions. However, there is nothing in this chapter that prohibits a guardian from borrowing [114] money needed for the ward's support and maintenance without giving a mortgage on the ward's real estate.
In the case of St. Vincent's Sanitarium v. Murphy, supra, 209 S.W.2d, l.c. 565, the St. Louis Court of Appeals said:
"Unless there is a statute to the contrary, the corpus of the personal estate may be intrenched upon to the extent that it may be necessary to the maintenance of the ward, without first obtaining permission from the court. Bliss v. Spencer, 125 Va. 36, 99 S.E. 593, 5 A.L.R. 619; Cross v. Rubey, Mo. App., 206 S.W. 413; Potter v. Berry, 56 N.J.L. 454, 28 A. 668; affirmed 57 N.J.L. 201, 33 A. 455; Lake v. Hope, 116 Va. 687, 82 S.E. 738; 25 Am.Jur., Guardian and Ward, Sec. 71, p. 47; 44 C.J. Insane Persons, Sec. 89, p. 238; See Annotations, 5 A.L.R. 632. We have no statute in this state requiring an order of court in such instances."
For the purpose of these cases before us, we will assume that both loans in question were obtained without legal authority. However, the proceeds of these loans did pay lawful obligations owed by the estate of Dr. Cook, a person adjudged of unsound mind. As we have already pointed out, the money obtained from these two respondents was used to pay for hospital, nursing and medical care and ambulance transportation, and to pay a mortgage on real estate owned by Dr. Cook. This ward's estate was legally liable for these items and the persons who were paid these obligations had a lawful claim against his estate. The question before us is: Can these respondents be subrogated to the claims of the persons who received the money advanced or loaned by the respondents?
In the case of Berry v. Stigall, 253 Mo. 690, l.c. 696-697, 162 S.W. 126, 50 LRA, NS, 489, AnnCas 1915C 118, we said:
"That equity seeks to prevent the unearned enrichment of one at the expense of another is the motive for an important part of its jurisprudence. [2 Pomeroy's Equitable Remedies, sec. 920.] This same idea is expressed in the maxim of the common law: `Nemo debet locupletari ex alterius incommodo,' and more fully in the maxim of the civil law: `Jure naturae aequum est, neminem cum alterius detrimento et injuria fieri locupletiorem.' The principle is applied to aid those who have paid the debt of another under circumstances in which equity will imply a sufficient motive, whether such motive consists in the protection of an interest in the person invoking it, the performance of a duty pertaining to a fiduciary relation, or the invitation of the public, or of him whose debt is paid. While it does not extend its assistance to a mere volunteer who either foolishly or for charity's sake pays the debt of another, it relieves those whom the learned author already cited has divided into the three following classes: `First, those who act in performance of a legal duty, arising either by express agreement or by operation of law; second, those who act under the necessity of self-protection; third, those who act at the request of the debtor, directly or indirectly, or upon invitation of the public, and whose payments are favored by public policy.' [Ibid., sec. 921.] Judge Story in his work on Equity Jurisprudence, (vol. 1 [13 Ed.], p. 645), characterizes this principle as a doctrine belonging to an age of enlightened policy and refined, although natural, justice."
In the case of McKay v. Snider, supra, 190 S.W.2d l.c. 893, we held:
"In acting to refinance the indebtedness, the guardian and curator acted to protect the assets of the estate. The guardian and curator of the Lawrence estate in furnishing the funds for the payment of the debts of the Arnold estate was not a volunteer. Berry v. Stigall, supra; Netherton v. Farmers Exchange Bank, 228 Mo. App. 296, 63 S.W.2d 156. The proceedings for refinancing failed, not because prohibited by statute or public policy, but because of irregularity, in that, the controlling [115] records of the Probate Court failed to show that any petition asking authority was filed or that any order to borrow the money and execute the deed of trust was entered of record. The Arnold estate still owns the real estate and the rights of no other parties have intervened.
"We do not understand that the granting of proper equitable relief in a proper case has ever been held to be the making of a new contract for the parties. While the $1,000 note and deed of trust has been cancelled, the Arnold estate has the fund which was obtained from the Lawrence estate and this fund ought justly to be repaid. The Arnold estate may not retain the fund and also the described real estate relieved of the lien of the deed of trust. The assets of the Arnold estate consist of the described real estate. Ordinarily, a court of equity will not create a lien upon real estate in favor of a party unless, from the nature of the transaction, rights have sprung up which ought to be held binding upon the specific property. 33 Am.Jur., Liens § 21, p. 430. In this case the fund advanced was used, as stated, to discharge a prior valid lien on the described real estate and to pay for property, which the probate court by its order and judgment deemed necessary for the proper maintenance of the ward and his family. Under the statutes the described real estate could be mortgaged or sold for the payment of these debts. In equity and good conscience the Lawrence estate may be subrogated to the rights of the creditors whose claims have been discharged and the relieved property may be impressed with a lien. Berry v. Stigall, supra. `When a court of equity is rightfully possessed of a case, it will not relinquish jurisdiction "short of doing complete justice."' Nodaway County v. Alumbaugh, 348 Mo. 354, 153 S.W.2d 74, 77. We deem the judgment in favor of the Lawrence estate on the cross petition to be right and in accordance with established precedents."
The case of Capen v. Garrison, 193 Mo. 335, 92 S.W. 368, 5 LRA, NS, 838, was partially overruled in the case of Berry v. Stigall, supra; however, in the case of McKay v. Snider, supra, we quoted with approval the following language in the Capen case (193 Mo. l.c. 349-350):
"The doctrine of equitable lien follows closely on that of subrogation. They both come under the maxim `equality is equity,' and they are applied only in cases where the law fails to give relief and justice would suffer without them. But the doctrine of equitable lien has its prescribed boundaries as well as that of subrogation; it is not a limitless remedy to be applied according to the measure of the conscience of the particular chancellor, any more than, as an illustrious law-writer said, to the measure of his foot. The right to an equitable lien arises when a party at the request of another advances him money to be applied and which is applied to the discharge of a legal obligation of that other, but when, owing to the disability of the person to whom the money is advanced, no valid contract is made for its repayment. For example, if money is advanced to a minor to pay a debt which he has incurred for necessaries furnished him, no action at law lies to recover of the minor on a contract express or implied for the repayment of the money loaned, yet as the money was loaned to discharge a debt for which the minor was liable at law and it was used for that purpose a court of equity will charge a lien on the minor's property to repay the sum advanced." (Italics ours.)
On principle, we are unable to distinguish the above cited cases from the facts in this record. Therefore, we hold that these respondents are equitably entitled to be subrogated to the rights of the parties who had lawful claims against the [116] ward's estate to the extent that the monies advanced or loaned by respondents paid such claims.
We disagree with appellant that respondents' petitions are based on the two notes or expressed contracts. The petitions allege the fact that Dr. Cook was adjudged insane and that the money borrowed from each respondent was necessary for the support, maintenance, hospital and medical expense of the ward that had already accrued and would accrue in the future. The notes attached to these petitions were merely evidence of the fact that each respondent had advanced a specific sum of money to the guardian. The petitions sought allowance of respondents' claims against the estate in the hands of the guardian and administrator and prayed an adjudication that if the personal assets were insufficient the real estate of the deceased be sold to satisfy such claims. In the First National Bank case the prayer further sought "such other and further orders, touching the premises, as it [court] shall deem meet and just; and for all proper relief." These petitions state facts that would bring them within the doctrine of unjust enrichment against the administrator of Dr. Cook's estate. McKay v. Snider, supra. Appellant Jennie Vaughan is the sole and only heir of Dr. Cook and to get a complete determination of the issues in these cases she was a proper party, (Sec. 507.030) though perhaps not a necessary party. Maupin, as guardian of Dr. Cook, was not a proper party because his duties as guardian ceased upon the death of his ward; however, the decrees were not against him as guardian but only as administrator. Therefore, the appellant was not prejudiced.
"If the guardian of an insane person may be sued in the circuit court for necessaries furnished the ward during guardianship then we see no good reason why after the death of the ward the administrator cannot be sued in the circuit court the same as the guardian, as the guardian's duties end ipso facto with the death of the ward and the administrator then becomes the personal representative, and can be sued for the obligations of the deceased." Tock v. Tock, (Mo. App.) 120 S.W.2d 169, l.c. 172.
We hold that upon the death of Dr. Cook this guardian was without further power except to settle his account and deliver the estate and effects of his ward to the ward's personal representative, in this case Wade W. Maupin, as administrator of the deceased's estate. As such, he has sole authority to represent the estate and, therefore, was a necessary and proper party to these actions. Evans v. York, 216 S.W.2d 124. Of course, it would have been improper for these respondents to have made a demand against the guardian after the death of his ward.
Under the facts and issues in these cases, we think the decree of the circuit court in each case was proper; therefore, the decrees should be affirmed. It is so ordered. All concur.