Roberts v. Schultz

• Decision Date: 01 January 1876
• Citation: 45 Tex. 184
• Parties: GEORGE H. ROBERTS v. M. SCHULTZ & WIFE.
• Court: Texas Supreme Court

45 Tex. 184

GEORGE H. ROBERTS

v.M. SCHULTZ & WIFE.

Supreme Court of Texas.

1876.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The facts are stated in the opinion.

Crosby & Hill, for appellant.

W. P. & E. P. Hamblen, for appellees, cited Paschal's Dig., art. 1297; Miller v. Miller, 10 Tex., 332;Withers v. Patterson, 27 Tex., 491;Trammel v. Philleo, 33 Tex., 395; 1 Story's Eq., 317, 320; 2 Kent, 229; Perry on Trusts, sec. 200.

John T. Harcourt, also for appellees, cited Schouler's Domestic Relations, 507, 512; Hatch v. Hatch, 9 Ves., 296; Hawkins's Appeal, 32 Penn. Stat., 263.

MOORE, ASSOCIATE JUSTICE.

At the February Term, 1860, of the County Court of Harris county, John S. Allen was appointed guardian of the person and estate of appellee, Alexine Shultz, (then Alexine Smith,) a minor about some sixteen years of age, and gave bond as such guardian, with appellant George H. Roberts and William Mitchell as his sureties. In August of the same year, on Allen's petition, representing that it was necessary for the maintenance and education of his ward, the County Court ordered the sale of twelve hundred and eighty acres of land belonging to her estate. In November following, the guardian reported the sale of said land to John G. Chatham, on credit of twelve months, for three thousand two hundred and ninety-eight 14/100 dollars, for which he had taken a note, with personal security and a lien on the land. In his annual account, filed March 27, 1863, the guardian reported the collection of $3,050 on this note, (which it is shown in the record was made in Confederate money,) and credited himself by $2,800, paid for two negroes purchased for his ward. And thereupon the court made its decree that “said guardian having accompanied his account with receipts and a bill of sale for said two negroes, with an oath that the same was just and true, it is therefore ordered, adjudged, and decreed that said account be approved.”

In May, 1864, the ward became of age, and in December following she called upon the guardian for a settlement and surrender of her property; and he, on the 29th of said month, filed in the Probate Court his final account, upon which the following indorsement was written by the chief justice, and signed by the ward, to wit: “I have examined the within account and find the same to be correct; and having arrived at the age of twenty-one years, do hereby agree that my guardian, John S. Allen, be discharged from all further liability, both he and his sureties, from their guardian bond. Given under my hand the 29th December, 1864. Alexine Smith.”

On the same day, without notice or citation being given or issued to any one, the court approved said account, and discharged the guardian and his sureties, and ordered their release from all further liability. Allen thereupon surrendered to his said ward, Chatham's note for the land, showing a balance to be still due, together with all the property then in his hands. The negroes were at the time hired out, but appellee collected the amount due for their hire, and continued to do so until they were emancipated. In 1866 she collected of Chatham the balance due on his note, and surrendered it to him. Having married in the spring of 1872, she and her husband, on the 5th of June, 1872, commenced this suit against appellant as a surety on said Allen's bond as guardian, (Allen having removed from the State and the other surety being dead,) for the recovery of $2,800, alleged to have been received by said guardian for said land sold to Chatham and not accounted for.

A statement of the case and an inspection of the record plainly shows that it was inspired by and tried in the District Court upon, as we have heretofore decided, an erroneous conception of the law by our late predecessors in this court in regard to all transactions in which Confederate money in any way entered, and especially when such transaction was had with any one acting in a fiduciary character. This error permeates the entire record, and no doubt controlled the decision of the case in the District Court. With the numerous decisions of this court on the subject before it, holding that all payments made to administrators and guardians in Confederate money were absolutely void, and that the orders and judgments of the Probate Court in any way sanctioning and approving them were nullities, it was only reasonable and proper that a like rule should have been applied by the District Court in this case. We have felt it to be our duty, however, to take the law on this subject as laid down by the Supreme Court of the United States rather than as decided by our own court. The grounds upon which transactions involving Confederate money have been held void being that they were in violation of the public policy and law of the Government of the United States, it cannot be doubted, we think, that greater weight should be given to the decisions of its courts than to those of State tribunals. (Mathews v. Rucker, 41 Tex., 636;Short v. Abernathy, 42 Tex., 94.)

Evidently this is not a suit to correct and revise the settlement of a guardian's account. If it was, clearly it was barred by limitation. (Paschal's Dig., art. 3922.) It is, however, an attempt to do, in effect, the same thing, by suit on the guardian's bond, for an alleged breach of its condition to “well and truly perform all the duties required of him by law.” Unquestionably it is a duty required of the guardian to account...