40 Miss. 704 | Miss. | 1866
delivered the opinion of the court.
The appellees filed their petition in the Probate Court of Clarke county, praying distribution of the estate of W. B. Trotter, deceased.
To this petition the administrator filed his original and amended answer, and, upon final hearing, a decree was rendered against the administrator in favor of petitioners.
The first objection urged by counsel for appellant to this decree is, tbat tbe court below refused to allow tbe administrator a credit for mterest on notes, etc., past due, against tbe decedent, wbicb was pedd ly him after their maturity.
It seems from the account presented that the administrator charged himself with interest on all sums received, and gave himself credit for all claims paid, with interest thereon, both debits and credits, to the date of settlement, in 186fi. This mode of calculation the court properly rejected; but in doing so, by its decree, tbe court also rejected, in some cases, amounts of mterest on debts against the intestate which were actually
Tbe next objection to tbe decree of the court is, that it disallowed tbe claim of $745.00 paid Ward, voucher No. 4 of second class. This was a sum of money collected by tbe intestate in bis lifetime, as an attorney-at-law, in February and August, 1858, and was paid by tbe administrator in February, 1866. It is urged in favor of tbe disallowance that this claim was barred by tbe statute of limitations of three years (Code, article 5, page 400); while it is insisted by appellant, that it •appearing by tbe evidence of Ward that be held a receipt of tbe intestate for these notes, which was destroyed during,, tbe war by tbe Federal soldiers, that this must be regarded as tbe foundation of tbe claim paid by tbe administrator, and this receipt is only barred by tbe limitation of six years prescribed in the same act.
Tbe claims here presented is an open account, stated, proven by tbe oath of Ward, examined, and allowed by tbe probate judge, and registered all as cm open account, without any reference to any existing written or other contract in relation thereto. It must, therefore, be governed by the limitation of three years, applicable to open accounts. In this view, tbe claims having been barred by tbe statute cmterior to the grcmtmg of administration to appellant, according to tbe decision of this court in tbe case of Byrd v. Wells, at tbe present term, could not be legally paid by him, or allowed by tbe Probate Court in tbe settlement of bis accounts. This claim was therefore properly rejected.
Tbe next ground of error complained of is that tbe court rejected voucher No. 38, for $840.00, Confederate money, received by the administrator on sale of personal property made by order of tbe Probate Court during the war, and reserved and held by
By the act of the legislature of the 2d August, 1861, (Session Acts, page 38,) executors, administrators, etc., were authorized to invest money or effects, liable to be invested at interest, in the bonds or treasury notes, issued since the 9th January, 1861, by authority of this State or of the Confederate States of America, etc.
By an act approved the 20th December, 1865, the legislature of this State provided, “ That when any executor or administrator’, etc., has heretofore received, on account of said estate, any Confederate money, etc., in due course of business, or in pursuance of the statutes of Mississippi at the time of receiving the same, and shall show, to the satisfaction of the court, that he has been unable to use any or all of said money, he shall only be chargeable with the real value of said money on hand, not used by him a saforesaid.” Section 4, chapter 11, page 143, Acts of 1865.
The question now here is, whether the act of 1861, authorizing the investment of moneys or effects of the estate in bonds or treasury notes of the Confederate States, was a valid act at the time of its passage.
This grave question, growing out of the late civil war, has been virtually determined by the previous decisions of this court.
In the case of Buck v. Swann, decided at the April Term, 1866, this court held: “ That the State of Mississippi is the same State that occupied its limits before the 9th January, 1861, and since that date. Its constitution and its laws are the same, except so far as they have been altered from time to time by its own act; rights of property are to be governed, contracts are to be construed, and crimes are to be tried and punished by the same laws that existed before the date of the act of secession, or that have been enacted since. It is not a new State or a new government, but the same State and the same government.5’ * * *
In this opinion it is further said, in support of the conclusion first stated : “ That protection and allegiance are mutual and reciprocal rights and duties between government and people, in their nature inseparable, is universally admitted; when the power of protection ceases, the duty of allegiance, its correlative, must cease with it. In a state of war, therefore, the citizen being compelled to submit for the time to the party having the possession and control of the territory in which he resides, he becomes subject to its dominion ; his property and person are governed by its laws ; and, without regard to the international strife, his primate rights, under the municipal law to which he is thus subjected, must remain the same, no matter what may be the result of the struggle. His personal feelings and opinions are merged in his territorial status ; and belonging to £ enemy territory,’ he is to be regarded and treated by the
In the case of Oreen v. Sizer, decided by this court at the October Term, 1866, the whole court concurring in that opinion, except as to the mere form of the action, the same general views are sustained; and in express reference to Confederate notes, it is said: “ These notes then stand on the footing of private property; and as well might it be said that specific private property in this State was not a sufficient consideration for a contract during the war, as to say that these notes, which were received without any illegal taint, could not form a valid consideration for a contract. For the private property of the citizens of the Confederate States was essentially the material resource on which the rebellion and the success of the whole cause depended. It was the source from which revenue, the sinews of war, was raised. It was impressed to supply military resources ; it was used in every way that the exigencies of the cause required for its purpose of civil, and military finance; and it was the basis on which the resources of the war absolutely rested. It was under the actual power of a subsisting government ; and whether rightful or wrongful is immaterial, since the citizen was compelled to submit to its authority. It was in faet the potential government which, for the time being, controlled his lights, his property, and his action. The same necessity and control gave rise to the existing circulating medium. The citizen was powerless to resist its operation. No one will contend that a contract during that period, founded on the sale of a piece of personal property, would be illegal, because itrfwas founded on that which constituted a part of the material resource by which the rebellion was sustained; and upon the same reason a contract, founded on that which was under the same exigency the representative of the property, cannot be illegal.”
In a very recent case in Alabama the precise question now before us, under a statute substantially like ours, providing, in 1861, that “ all guardians may purchase bonds of the Confederate States for the estates they represent, and may receive in payment of debts due them treasury notes of the Confederate States,” underwent a very elaborate and able examination, and the court then decided, “ that, under the principles of law now pervading, guardians are justified in having yielded obedience, before the restoration of the authority of the United States, to the law above recited; and they are entitled to credit for money received and investments made before that time under such law.” Chief-Justice Walker delivered the opinion of the court. Watson and Wife v. Stone.
We think, therefore, these sums should have been allowed, if the court was satisfied that they were received and invested, or held as stated.
The next ground of error .insisted on is that the administrator is charged by the decree with the sum of $4,600 for rent of the land and hire of mules, and for provisions and use of farming utensils, in the year 1864.
It appears by the record that, in the years 1863 and 1865, the administrator worked the plantation under the order of the Probate Court, and continued to work it also in the year 1864, without any such order; and it is for this omission that he is sought here to be made liable, as upon an implied assumpsit.
In any view, he cannot be made liable for the rent of the land. If it was worked by the assent of the heirs, then they have no rigf*. to complain in'this proceeding, and to charge him as for a wrongful act, with rent, etc., because he had obtained no order. If, on the contrary, the administrator carried on the business of the plantation without their consent, and without an order of court, he is not amenable therefor to the Probate Court, but is
In regard to the personal estate with which it is sought to charge him on account of his working the plantation, taking the condition and history of the country into consideration, and looking at the testimony in this record, the decree is wholly unjustifiable on this point, and evidently proceeds upon a misapprehension of the facts before it.
The last ground insisted on is that the administrator is ordered by the decree to return to the next term of the Probate Court, a full and true statement of the crops of 1863 and 1865, with which he already stands charged in the accounts rendered, and upon which this decree is founded.
If there is error in those accounts, it was competent for the parties interested, in a proper proceeding before the Probate Court, to have the matter investigated, and to charge the administrator for any deficiency which they may prove. They may appeal to the conscience of the party, according to the rules of the Chancery Court; or on final account they may surcharge and falsify any annual or partial account or settlement. But this court cannot command the conscience of the administrator, so as to compel him to conform his returns wnder oath to the views of the court. It is for the administrator to mahe ret/urns ¡ the court judges their effect.
Let the decree of the court below be reversed, and cause remanded for further proceedings, in accordance with this opinion.