Kemp v. Wamack

The facts are stated in the opinion of the court delivered by Mathews, 1. This suit was instituted in the court below, by the natural tutrix of her daughter against the latter, the wife of the defendant, having for its object the liquidation and payment of certain disbursements and expenses, which tile plaintiff alleges she made and incurred, in her capacity as tutrix of [273] her minor child, who was heir to her father. The judge of probates gave judgment against the defendants, for one thousand and sixty dollars, from which they appealed. Eastern District, March 1831. A just decision of the case depends, principally, on matters of fact. There is but one question of law, and that arises out of an article of our old Civil Code, which prohibits tutors or curators from expending, in the support and education of minors, more than the revenue of their estdtes.— See O. . C p. 70, art. 60. But this question, according to the conclusion to which we have arrived on the facts of the casé, need not be discussed. The whole amount of charges against the defendants, according to the account exhibited by the tutrix, is two thousand two hundred and fifty-four dollars. The principal items oí which this sum is composed, are for boarding, clothing, and educating the minor, and the cost of raising a number of young slaves, the property of the latter. The first of these items is six hundred and fifty dollars; and the whole of the second charge amounts to one thousand four hundred and seventy dallars. These charges, we are of opinion should, in pursuance of probability resulting from the testimony of the case, be reduced one half. As to the first, the answer to interrogatories put to the defendants, corroborated by one witness; shews, that the services of the minor in the household establishment of her mother was, for more than six years of the period of thirteen during which time board is charged against her, an equivalent for the expense of boarding. The large item, of one thousand iour hundred and seventy dollars, is an aggregate of charges for supporting young ne-groes, previous to an age at which they maybe considered as useful; and they are made at the rate of thirty dollars per year on each head. This we think unreasonable. It is true, that a majority of the witnesses introduced on this subject, thought otherwise; and the judge a quo seems, by count [274] ing them, to have acquiesced in the opinion of that majority. Numeration is certainly the easiest mode by which judges can arrive at conclusions on matters of fact, supported alone by the testimony of witnesses ; but the law of evidence requires that their testimony should be weighed by probabilities, and its truth be rather ascertained in this manner, than by counting numbers. Testimony should he weighed by probabilities, and its truth he rather ascertained in this manner, than by counting the witnesses. The defendants, by their answers to interrogatories, estimate the costs of raising young slaves, up to the time at which they become useful to owners, at ten dollars per an-num. One of the witnesses thought that fifteen dollars would suffice to cover all necessary expenses ; and to his opinion, we are disposed to give the greatest weight in the present case, as the negroes in question, were nurtured on a plantation, and required, in this climate, little clothing; and were probably fed on bread and other cheap articles of clothing. We, therefore, conclude, according to the premises above stated, that the just charge, in favor of the plaintiff, for these two items, ought not to exceed one thousand and sixty dollars ; to which must be added, one hundred and six dollars, paid for taxes on the defendants property; making together, one thousand one hundred and sixty-six dollars. In the account, as stated by the tutrix, the minor seems to be entitled to one thousand one hundred and twenty dollars credit; and this, without taking into consideration the interest which she had a right, by law,'; to claim on a capital of five hundred and ninety-two dollars, alloted to her on a partial partition of her father’s estate. From the whole evidence of the case, we are of opinion, that the plaintiff ought not to recover any thing. It is, therefore, ordered, &c. that the judgment of thé Court of Probates be avoided, reversed and annulled, and that judgment be here entered for the defendants, with costs in both courts.