145 Mich. 33 | Mich. | 1906
This is a bill for an accounting. The bill alleges that complainant is the daughter of one Samuel Connolly, who died a widower prior to the 7th day of April, 1870; that said Samuel Connolly was a soldier of the United States in the war of the Rebellion, and that his minor children were entitled to receive a pension from the United States; that said Connolly left surviving heirs complainant and two sisters, who constituted his family, and that each was entitled to participate in such pension; that Patrick Butler was, on the 7th day of April, 1870, duly appointed guardian of the complainant and her two sisters and of their estates; that defendant James Butler was surety on the bond of Patrick Butler, given as such guardian; that pension money belonging to complainant was received by Patrick Butler prior to January 1, 1873, amounting, in the aggregate, to $265.91 (the items are given); that Patrick Butler departed this life on the 8th of December, 1876; that no administration was had of his estate until on complainant’s application Burt D. Cady was, on the 11th of December, 1899, appointed administrator.
The bill further sets out that until late in the spring of 1897 complainant knew nothing of the guardianship matter, and did not know that the United States government had ever paid a pension for her benefit; that it was claimed by James Butler that Patrick Butler had in his lifetime expended certain moneys on complainant’s behalf. The complainant offers to allow any sum found to have been properly so expended, if any, and prays an accounting.
Separate answers were filed. Both answers 'aver laches. The administrator denies, on information and belief, the statement that Patrick Butler received pension moneys belonging to complainant, and also sets out that Patrick Butler expended a considerable sum of money, and furnished board and clothing to complainant. In support of
The court decided the case for the defendant on the ground that no evidence had been adduced showing that the pension moneys were received by Patrick Butler. The complainant introduced exemplified copies of pension vouchers, made pursuant to section 882, U. S. Bev. Stat. The circuit judge seems to have been of the opinion that this certificate entitled the receipts purporting to be signed by Patrick Butler to be treated as originals, but held that, as there was no proof of the handwriting of the signer of the original, the complainant failed in her proof, and that she could not invoke the rule as to ancient documents because she had waited so long a time before attempting to assert her rights. The view that this authentication is to be treated as though the original were produced, is well supported by the cases of Lacey v. Davis, 4 Mich. 140; Clark v. Hall, 19 Mich. 356; Gilman v. Riopelle, 18 Mich. 145; Tillotson v. Webber, 96 Mich. 145; Hunt v. Order of Chosen Friends, 64 Mich. 671.
"We need not determine whether the certified copy of the receipt would, in a case where it did not stand as a representative of an ancient document, be sufficient evidence of the due execution of the receipt, for we know of no such qualification of the rule in favor of admitting ancient documents as that made by the circuit judge. The question is whether this document, produced from a source which is an eminently proper one, and consistent with its validity and genuineness, proves itself. If the complainant has been guilty* of such laches as bars her from any remedy on the case made, that is another mat
■ The point is made in this court, on behalf of the defendant James Butler, that the statute, 3 Comp. Laws, § 8727, bars action against him after four years from the death of Patrick Butler. This is true. See Perkins v. Cheney, 114 Mich. 570. It does not, however, appear that this point was made in the court below. On the contrary, the answer of James asserts that he never was surety on Patrick Butler’s bond. We think, under these circumstances, he should not recover costs of this court.
We do not think defendant should be fully cut off from any defense open. The decree will be reversed, and a decree entered in favor of complainant, adjudging that she is entitled to recover from the estate of Patrick Butler the amount of this pension money, less such payments and expenditures as may be shown, unless it shall be found that she has discharged or assigned her claim, freely and without fraud being practiced upon her, and the case will be remanded for further proceedings.
As the case must be remanded, the defendant James Butler will be permitted to amend his answer to set up the statute of limitations. The complainant will recover the costs of this court against the estate, the costs of the court below to abide the event.