McClure Adm'r v. Johnson et al.
| Citation | 14 W.Va. 432 |
| Parties | McClure Adm'r v. Johnson et al. |
| Decision Date | 14 December 1878 |
| Court | West Virginia Supreme Court |
1. The county of Pendleton being imderthe control of the government of AHrginia, at Richmond, a commissioner of the county court of that county acting under this Richmond government settles during the war an ex parte guardian account. Held: Such ex parte settlement is as valid as though it had been made prior to tiie war, and must be regarded as prima facie correct, but subject to be surcharged and falsified.
2. A guardian in Pendleton county collects a part of a debt due his ward in February, 1861, and the residue of this debt he collects in February, 1862, in bank notes very little, if at all depreciated at that time. The debt so collected was perfectly solvent. The bank notes so received are not kept in kind by the guardian, and such bank notes are at the close of the war not worth more than forty cents on a dollar. The guardian claims, that he could not safely lend out this money during the war, and he ought not to be charged with interest on it during the war, nor with more than 40 per cent of the principal at the close of the war; but he fails to prove satisfactorily, that by the use of diligence he could not have loaned this money out, though he does prove that it was difficult to lend out money during the war. He had invested this amount of Confederate notes in September, 1863, in Confederate bonds in his name as guardian, Confederate notes being then worth not more than one-tenth of their nominal value. Held: Under the act of the Virginia Legislature at Richmond, ' passed March 5, 1863, a circuit court was not authorized to approve such investment; and on the general principles of a court of equity such an investement ought not to be upheld; and the guardian ought to be charged with" the full amount received by him with interest from the time it was received. Quxre. Can an investment in Confederate bonds by a fiduciary be upheld under any circumstances? M
Appeal from a decree of the circuit court of Pendleton county, rendered on the 18th day of November, 1871, in a cause in said court then pending, in which John Mc01 ure, administrator of William M. McOlure, was plaintiff, and Jacob F. Johnson and others were defendants, awarded on the petition of said Johnson.
Hon. J. T. Hoke, late judge of the fourth judicial circuit, rendered the decree appealed from.
Green, President, furnishes the following statement of the case:
In May, 1868, John McClure, administrator of Win. M. McClure, filed his bill in the circuit court of Pendleton county, setting forth that the defendant, Jacob F. Johnson, was appointed the guardian of his intestate by the county court of Pendleton county on February 3, 1859, and that his co-defendants, Benjamin Hiner and John E. Wilson, were his sureties in his guardian bond; that Wm. M. McClure, the ward, died June 16, 1864, aged eighteen years; and that his guardian, Jacob F. Johnson, had never made a legal and valid settlement of his guardian accounts, but that he insisted, that a supposed settlement, made by him in 1864 before a commissioner of a court then organized in the count}7 of Pendleton under the authority of the pretended government of the Confederate States, was good and valid; and that the balance found due on said supposed settlement should be discharged wholly, or partially, by the delivery to the administrator of his ward of a bond of said Confederate government so called. Which positions of this guardian the bill controverts. The bill prays, that the guardianship account of Jacob F. Johnson may be settled, and the balance found due from him may be decreed to be paid to the plaintiff, the administrator of the ward, by the defend- ants, the guardian and his securities; and for general relief. An amended bill was afterwards filed but it in no manner varied the character of this suit.
In September, 1861, Jacob F. Johnson filed his answer to this bill and amended bill. He admits his appointment as guardian and his giving this bond as alleged in the bill. He states, that most of his ward's estate consisted of a legacy given him by the will of Martin Judy; that he had much difficulty in getting a settlement with the executor of Judy; but eventually did so, when the amount coming to his ward was found to be $677.06J with interest from July 13, 1860; that in February 1861, a part of this amount was paid to him and the residue thereof, being the greater part thereof, in February, 1862; that he was unable safely to lend out this money, which had been paid in bank notes, though he endeavored to do so; that at onetime he had the promise of a responsible party to take this money, but he afterwards declined to do so; that he would have preferred not to receive this money, if he could have properly declined it, but it was brought to his house in his absence. And he insists, that he ought not to be charged with the interest on this money nor with the amount of these bank notes received during the war in 1862, but as they became afterwards worthless in part he should, if responsible at all, be held responsible tor only the actual value of these bank notes at the close of the war.
He states, that he made a settlement with a commissioner in I860, in which the balance against him was $48.01, which settlement cannot now be found. On October 2, 1864, he made his second settlement before commissioner John M. Jones, which was duly admitted to record, and an attested copy of it is filed with his answer. In it he is charged with the balance due on first settlement by cash received of A. Judy, executor of Martin Judy, February 8, 1861, $268.09; with amour.t received November 3, 1861, of D. G. McClung $19.11; with amount received of A. Judy by hands of P. Phares, February 6, 1862, $477.00; with amount of rents received, March 15, 1864, $68.35; and with amount received of^ Lewis Mayers, $37.93, on August 24, 1864. And he is, credited with various small sums paid out: with $5.00 services rendered in renting farm, and $53.05, commissions on receipt of guardian, which commission was five per cent on the principal received by him, and the interest on this principal up to the time of the settlement. Among the sums paid, which are allowed as credits, is $60.00 for an overcoat and cape furnished his ward in 1864. The entire amount of credits allowed was$286.58, The interest on these credits and also on the charges is calculated to October 2, 1861, and the balance is struck showing the amount due the ward, $627.41 of principal, and $121.28 interest.
To this account the commissioner appends this report, in which he says:" The guardian reports to the undersigned, that owing to the existing war he was unable to loan or invest the funds as they came into his hands, as the law requires; therefore the undersigned has deemed it proper to charge the said guardian with simple interest agreeable to the within account."
This answer then states, that his ward was in the Confederate army influenced by the example and advise of his elder brother, the plaintiff in this ca ise; that the government at Richmond had the control of Pendleton county during the war; that neither the restored government of Virginia nor the government of West Virginia had any officers in that county; that under these circumstances he invested, pursuant to a law passed by the government of Virginia at Richmond, March 5, 1863, with the approval of Judge Allen, the moneys in his hands, as such guardian, in a Confederate bond of $700.00 dated September 9, 1863, and payable to him, guardian of Wm. M. McClure, or his assigns, and bearing 7 per cent per annum interest, which investment, he alleges, was approved by the judge of the circuit court of Pendleton.county acting under the Richmond government; and he files with his answer his petition to this court and the action of the judge thereon.
This petition states, that prior to March 5, 1863, he had received and had on hand a sum of mon^y belonging to his ward, which with interest to September 1, 1864, would amount to $750.00, which amount he collected and received in the due exercise of his trust, and which money he was unable to lend out in good hands or pay to his ward, owing principally to the war; that on July 31, 1863, he invested this money in a Confederate States bond bearing 7 per cent interest; that he received this money of Martin Judy's executor, most ot it on February 6, 1862, in bank notes, principally on southern banks; and that after using due diligence to loan out the same he was unable to do so, and therefore made this investment; and he asks the court to grant leave to this investment, so that he may be relieved from responsibility.
This petition was filed August 31, 1864; and on September 5, 1864, it was acted on in vacation by Judge J. W. F. Allen, the judge of the twelfth judicial circuit of Virginia, who on this petition ordered, that said fiduciary have authority to invest said moneys in 7 per cent bonds of the Confederate States, which he is directed to hold for the purpose of the trust; and he was directed to report, whether the bond he had obtained was a registered or unregistered bond, in whose name it was, its date, number and precise cost; and it was expressly added to this order, that it was not to be considered as releasing said fiduciary from any liability arising from the receipt of funds deemed more valuable than Confederate notes, and which were not applied at their current rates in the acquisition of said bond; and if these bank notes were still in the possession of the fiduciary, he was authorized to invest the same tor 8 per cent. Confederate bonds at current rates for each, making report to the next term of the court.
This order was directed to be entered on the chancery To this answer the plaintiff tiled a special replication, in which he says, that A. Judy was abundantly able to pay what he owed his intestate, the ward of defendant j Johnson;...
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