Stewart v. McMurray

STONE, C. J. — The present proceeding was the settlement of a guardianship, the active duties of which were performed during the war, 1861-5. . Civil society was thén abnormal. The seceding States were without a currency which was regarded as lawful by the Government of the United States. The Confederate States improvised a currency of its own, which became a measure of value and a circulating medium, because none other was obtainablé. Judicial administration was paralyzed, and collections.could not be enforced. Still, debts were paid, and thereby can-celled, with Confederate treasury-notes; and if no fraud or bad faith could be imputed, trustees were held blameless, if they received payment of dues to the trust estate in such currency. But the disturbed condition of the country did not absolve them from all duty. They were required to employ that diligence which an ordinarily prudent'man, similarly circumstanced, would bestow on his own monetary affairs of like importance. Still, in the absence of facts.or circumstances showing bad faith, or gross carelessness, we should not, and will not, deal harshly with trustees, who were so unfortunate as to be burdened with a trust in that perilous epoch. This court has heretofore said so much, and has committed itself so fully to a lin'e of policy in transactions of this kind, that we will indulge in no further general remarks.— Waring v. Lewis, 53 Ala. 615; Ferguson v. Lowery, 54 Ala. 510; Foscue v. Lyon, 55 Ala. 440; Mason v. Buchanan, 62 Ala. 110; Cummings v. Bradley, 57 Ala. 224; 3 Brick. Dig. 532, § 30. 2. A well-defined principle of law bears on the questions raised by this record. When a settling guardian, or personal representative, claims a credit for assets not reduced to possession, or for the payment of a claim preferred against the trust, and exception is filed to the allowance of the credit, the burden is on the guardian, or personal representative, as the case may be, to prove the justness of his claim; that is, he must show that he employed due diligence to collect the demand, or obtain possession of the property , for whose loss he asks credit, or he must show that diligence could have accomplished nothing. [So, if the exception be that he improperly paid an alleged debt resting on the trust, he must at least show a prima facie case of liability.— Willis v. Willis, 16 Ala. 652; Hughes v. Mitchell, 19 Ala. 268; Smiley v. Reese, 53 Ala. 89; Teague v. Corbitt, 57 Ala. 529; Munden v. Bailey, 70 Ala. 63. 3. It was objected to the allowance of the credit of $3,650.00, claimed by the guardian, that he made the investment without obtaining the order of the Probate Court [272] therefor. The statute did not require that an order should be obtained before making such investment.- — Acts Ala., 1861, pp. 53-4. 4. Two other vouchers, 1 and 17 — loans to Forrester & Co., Robinson & Carlisle sureties, and to Taylor, same sureties — were severally excepted to, as credits. These exceptions, on the testimony found in this record, ought to have been sustained. The testimony of Dr, Heflin, that the sureties yere “generally reputed to have been insolvent,” should not have been received, objected to as it was. Insolvency can not be proved by general, reputation. There is, also, a failure of proof that the guardian made any effort to collect either principal or interest of these claims, or that when they matured they were not collectible. One item- — $1,250—on the debit side of the account, seems to have been overlooked. In what we have said above, we have only responded to the exceptions and the grounds of them as shown by the record. 5. In re-stating the account, it must be borne in mind that the .assets, as they carné under the authority and power of the guardian, were in their nature Confederate securities. They came to him during the war. If any balance is found against him, it should be scaled down to actual value, or purchasing power at the time of the devastavit, or conversion. On this amount the guardian should be charged interest. We do not think this is a case for com- ' pound interest. Reversed and remanded.