George & Ratcliffe, Appellants, vs. Dawson's Guardian, Respondent, 18 Mo. 407

Gamble, Judge, delivered tbe opinion of tbe court. 1. Dawson, a minor, having died, leaving effects in tbe bands of Nicbols, bis guardian, George and Ratcliffe, the plaintiffs, exhibited a demand in tbe county court against tbe estate of Dawson, making Nichols,' the guardian, tbe defendant in tbe proceeding. Tbe county court decided against its jurisdiction, and upon appeal to tbe Circuit Court tbe case was dismissed, because of a want of jurisdiction in tbe county court.

Tbe demand of tbe plaintiff is for necessaries furnished in tbe last sickness of tbe deceased minor, but that circumstance does not distinguish the case from one in which necessaries bad been furnished at a different time, or from a demand arising from a tort committed by tbe minor, or from a demand upon tbe warranty of bis ancestor, or from demands in other cases in which a minor may be liable to an action. Tbe present proceeding is a novelty in tbe law and would never have been commenced but for the twenty-seventh

section of tbe act concerning guardians and curators. R. 0. 552. That

section is in these words : “ Whenever a minor, having a guardian, dies possessed of property, real or personal, no letters of administration shall be granted on such estate, but tbe county court shall proceed to distribute tbe personal estate among those interested, by ordering tbe same to be paid over by tbe guardian to tbe distributees.” There is no clause of tbe act which gives jurisdiction to tbe county court of any demand against a minor while living.

If be becomes liable to an action, be is to be sued in tbe other courts, and satisfaction of any judgment recovered against him, is obtained in tbe same manner as if be were adult. The law regulating tbe powers and duties of guardians, has no provision in it which makes tbe guardian tbe administrator of bis deceased ward, or provides for tbe allowance of demands in a proceeding against tbe guardian.

The prohibition against tbe issuing of letters of administration, no doubt applies to tbe cases where there are no debts, except those which the guardian himself has allowed to be created, and which he will, therefore, see are paid. It cannot be that the

section of the statute before quoted was intended to leave those who may have just claims against the estate of a deceased minor, without remedy against the assets, before they are distributed. The last clause of the section, which directs that the guardian shall make distribution, shows the principal design of the section, and the cases to which it applies.

The distribution to be made under the order of the court, will be among those who would receive shares, if there had been an administration; but as, in general, there -will be no debts to be allowed, there shall be no administration for the mere purpose of distribution, but the guardian himself shall make it, under the order of the court. But where there are persons asserting demands against the estate of the deceased minor, and where, therefore, the distributees are not entitled to the assets, the

section of the act did not intend that distribution should be made without administration. In such cases, administration must be had, and the demands regularly allowed. This construction of the section, which confines it to the cases where nothing remains to be done but to distribute the assets, is more consonant with the whole spirit of our legislation than it would be to allow a proceeding in the county court against a guardian to obtain judgment for a demand against his ward’s estate.

The creditor of a minor who has died, is entitled to have his demand paid, and is entitled to have administration on his estate granted to the proper persons, that he may assert his demand against the estate. The county court, therefore, had no jurisdiction of the proceeding as it was commenced, and the decision of that court and of the Circuit Court is affirmed.