50 Ala. 297 | Ala. | 1874
This is an appeal by a guardian from a decree rendered against him on the final settlement of his accounts. He was regularly appointed, on the 29th November, 1858, as the “guardian of Thomas S. Reed, Margaret A. Reed, James P. Reed, William D. Reed, Sarah E. Reed, and Susan A. Reed, minor heirs of James Reed,” deceased. At a special term of the probate, court of De Kalb, in which said appointment had been made, William D. Reed, one of said heirs, filed his petition on the 27th November, 1869, praying that said Newman, the guardian, be notified “ to file his accounts and vouchers, and make a final settlement of his said guardianship.” On this petition, there was an order of court granted, requiring “ said Moses C. Newman, guardian as aforesaid,” after proper service of notice, “ to file his accounts and vouchers for a final settlement of his said guardianship.” In obedience to this order, the guardian appeared, and filed his account, which is set out in the record, in these words : —
“The amended account-current of M. C. Newman, as guardian of James P. Reed, William D. Reed, Sarah E. Reed, and
“ Dr.
“ March 14, 1862, To amount collected and received of John S. Felton, attorney-at-law, Fayetteville, Tennessee, which amount was collected by said attorney from the executors of Nathan Reed, in Lincoln county, Tennessee, and sent to this guardian, viz., in C. S. currency . s . $1,314.50
“ Or.
“ August 18, 1862. By amount returned into court, viz., note on Sarah Reed, and W. D. Petty and Thos. Petty, security, for a portion of said currency loaned by guardian, dated 21st March, 1862, payable twelve months after date . . . 600.00
“ March 21,1862. By amount C. S. currency . . 643.20
By amount paid Sarah Reed, for necessaries for said wards . . 40.00
By amount cash expenses in collecting said currency, as above set out.......• . 19.68
By amount of taxes in year 1862 6.75
By amount of commissions for collecting and paying out. . 65.72
By amount worthless C. S. currency, less amount paid out by him, by virtue of his guardianship ........$1,314.50”
This account was properly verified by affidavit, as required by law. The record then shows that this account was contested by “ W. D. Reed et al.”; and they assigned in writing six grounds of objection to the several items of credit in the same, “ and asked that said credits be not allowed.” Upon these objections an issue was made up, and the same was submitted to the court for trial. On the trial of this issue, the guardian offered himself as a witness, and testified as follows : “ That he, as such guardian, received the amount, as charged in his account, from the executors of Nathaniel Reed, through his agent, in C. S. currency; and that a small amount of the money collected may have been in Tennessee State bank-notes ; but he received, together with it, some for others who were alike interested, and he considered the amount charged as received for the contestants: and that on the day of , 1862, he resigned his trust, and filed his account for a final settlement ; and that on the day set for the settlement, as shown by the record, he, as such guardian, made what he supposed to be a final settlement, and returned into court the assets for
“ This being all the evidence adduced in the cause, the court overruled or refused to sustain said account, and upon the testimony, as above set out, charged said guardian as shown in this decree.” The decree, as copied in the record, states the names of the parties thus : “ W. D. Reed et al. v. Moses C. Newman, late guardian of the minor heirs of James Reed, deceased ; ” and is in these words : “ It is therefore ordered,” &c., “ that the plaintiffs recover of and from the defendant the sum of two thousand one hundred and nineteen dollars; it appearing to the court, after all the evidence adduced in the cause, argument on both sides, an examination of the accounts and vouchers filed, and due and careful consideration thereof, that so much is due of debt, principal and interest thereon; for which execution may issue, together-with the costs of this proceeding.”
The following errors are assigned on this decree: “ 1. The decree does not show who are the plaintiffs, or in whose favor it was rendered. 2. The decree, instead of being for plaintiffs, should have been for the defendant. 8. The decree does not allow the guardian any credit for moneys paid by him. 4. There was no proof of the value of Confederate States treasury-notes, or that they were of any value. 5. The decree is for too large an amount. 6. There is no evidence to sustain the decree.”*
The evidence in this case does not show that there was any negligence on the part of the guardian in collecting the promissory note on Mrs. Reed. It was given for funds of the wards, which the guardian had loaned her before his resignation; and it had not become due at the time of the resignation. It was loaned on solvent personal security. The guardian had authority to do this, and it had been done in a proper manner. Rev. Code, § 2426, supra. It did not appear that it had been lost by his neglect. The note was for the sum of six hundred dollars. It was dated March 21, 1862, and fell due in twelve months after date. It was a portion of the sum of $1314.50, which had been received from the executor of Nathan Reed, deceased, in the State of Tennessee. Upon the evidence set out in the record, this item of credit should have been allowed the guardian. The court below erred in refusing it.
If Nathan Reed died in the State of Tennessee, leaving an estate there in property or money, subject to distribution among his next of kin or legatees, or if he owed the wards a debt, then, if the wards of Newman, the appellant, occupied any of these relations towards said decedent, they would become entitled to this property or money on his death, by inheritance, or by his will, or as his creditors. Whatever this property might be, the wards would have a vested right in it as the owners. This property could not be taken away from them, and something else substituted in its stead, except by due course of law. Gunn v. Barry, 15 Wall. 610. If this property was money, or some other specific thing, then the heirs and distributees, or legatees or creditors, as the case might be, became invested with such right to it, whether money or other specific thing or debt, as the laws of the State of Tennessee, or the will of the deceased, bestowed upon them. This right of property being a vested right, it may be well doubted, whether the State could so invade it as to change this property into' “ Confederate States currency,” which was
Assuming that the expression “ C. S. currency,” as used by the guardian in stating his account, means “ Confederate States treasury-notes,” then it is clear that this currency was issued and put in circulation by an illegal and treasonable government,- to aid in the illegal and treasonable purposes of that government. It was simply a war currency, and had no value except for that purpose. It was the nerve of vitality in the right arm of the insurrection. These notes, it is said, “ As contracts in themselves, except in the contingency of a successful revolution,” “were nullities;” “for, except in that event, there would be no payer. They bore, indeed, this character (nullities ?) upon their face, for they were, made payable only “ after the ratification of a treaty of peace between the Confederate States and the United States of America.” Chase, C. J., in Thorrington v. Smith, 8 Wall. 1, 11. It can hardly be denied that the purse and the sword, money and arms, are equally necessary to carry on war successfully. They belong to the war power of all governments not merely visionary. This is very clearly shown in the arguments on which the “legal tender cases” were determined. 12 Wall. 540, opinion of Strong, J. pp. 540, 541, et ubique; Tiffany on Government, pp. 244, 245, §§ 427,428; lb. pp. 248, 249, §§ 432, 433. For a like reason, of the -worthless and treasonable character of these notes, a similar currency issued by the State of Arkansas during the rebellion has been pronounced illegal and void by the supreme judicial tribunal of the nation. Hanauer v. Woodruff, 15 Wall. 439; see, also, Miller v. Lawson, 44 Ala. 616. Then, a conversion or transmutation of the property of the ward, into such a currency was an improper interference with their rights of property, and it is forbidden by the constitution of the State. Const. Ala. Art. I. §§ 8, 25. Consequently, the sections of the Revised Code numbered 2134, 2135, so far as they attempt to legalize such a conversion, are unconstitutional and void. Rev. Code, § 2425.
The supposition that this spurious currency was issued to supply a want of the people for a circulating medium, is hardly supported by reason or fact. At the breaking out of the rebellion, all the seceding states were supplied with a bank and specie currency, sufficient for their wants. There was no com
The judgment on a new trial, if for the wards, should be rendered in favor of each one separately, for his share, or for the share of each of those who ask to have a final settlement enforced. If, on the other hand, it is against the wards, then the judgment should be rendered in favor of the guardian, for costs, against those who joined in the proceedings in the court below. _ Rev. Code, §§ 2137, 2157, 2158, 2449, 2450.
_ The judgment of the court below is reversed and remanded. The appellees will pay the costs of this appeal in this court, and in the court below.