McFarlane v. Randle

Ellett, J., delivered the opinion of the court. ' In June, 1854, James G. Randle, the appellee, was appointed guardian of Susan J. McFarlane, a minor. In October, 1854, March, 1855, and March-, 1856, he reported the receipt of several sums of money belonging to his ward. The report of March, 1856, showed the receipt of $1,200, in January of that year, which is stated to have been loaned at interest at ten per cent, on notes with approved security, except so much thereof as had been expended by the guardian for his ward. In June, 1855, he settled his first annual account, in which he charged himself with the sums of money previously received, amounting to $3,600, with interest from the date of the receipt to the date of the account, and showing “ a balance on hand ” of $3,668.20. In his second account, filed June, 1856, he charges himself with the “ amount on hand ” as appeared by his former account, and also with the sum of $1,200, received as aforesaid in January, 1856, and with three other sums, amounting in the aggregate to $1,550, received in April and May, 1856, and charges himself" with interest on each sum from the date of its receipt up to the date, of the account. He continued every year, up to and including the year 1864, to present similar accounts, in all of which he charged himself with the balance on hand at the previous settlement, and struck a new balance on every account as on hand, due to his ward. In all these accounts he charged himself with the whole amount of the money he had received for his ward, and in all, except those of 1863 and 1864, he charged himself with interest on the whole amount from the date of the last account to the date of the next. The balances on all these accounts were charged in dollars and cents, and were so approved and adjudged by the Probate Court. The interest was charged as upon money on hand. No order appears to have been made directing the loan — 422 — ing of any of the money of the ward, and there is nothing in all this long period of time to show that any of her money was actually loaned out by the guardian, except the report made in March, 1856, which stated that the sum then reported ($1,200) was loaned at interest on approved security. But even this sum was reported in his next, and all subsequent accounts, as being on hand in the same manner as the rest of the fund. In October, 1863, the guardian presented a petition to the Probate Court, stating that as such guardian he had a large amount of money, say $7,000, on hand, and after energetic action he had not been able to loan the same out, as there was no demand for money, and he was unwilling to take it himself and pay interest on it. That owing to the disturbed state of the country he thought it would be unsafe to invest his ward’s estate. That he had had the money all of that year, and knew of no chance to loan it out, although he had made repeated exertions to do so. And he prayed for an order permitting him to hold said money without interest, until he could have an opportunity to loan the same at interest. This petition was continued from term to term until January term, 1864, when the court made an order thereon that the guai’dian be permitted to hold the money then in his hands, belonging to his ward, until he could have an opportunity of loaning the same into good hands at interest. In August, 1865, the guardian presented his eleventh annual account, in which he charged himself as follows, to wit: “ To balance due as per last annual report, received previous from different parties in Confederate money.............$5,729 96 “ Said balance consisted of five coupon bonds of the Confederate States of America, bearing seven and eight per cent, interest per annum, payable semi-annually, for $1,000 each, dated January 8, 1865, and payable to bearer on the 1st of January, 1873. Signed, B. O. Tyler, and of the Nos. following, to wit: 943, 944, 945, 946, 981 .....$5,729 96.” After deducting disbursements, this account exhibited a bal — 423 — anee in favor of the ward of $4,939.46, which is stated as the “balance due estate of ward,” invested, as stated, in eight per cent. Confederate bonds. To this account the ward, by her next friend, filed several exceptions, of which it is only necessary to notice the sixth. This exception insisted that the guardian was concluded by his previous reports, and the action of the Probate Court thereupon, and was bound to account for the estate as lawful money of the United States, and that he had. no legal authority to convert the same into Confederate bonds. This exception was overruled by the court, and from this decree the present writ of error is prosecuted. On the trial of the exceptions, the exceptant introduced and relied on the entire records of the court in the matter of said guardianship.' • The accountant was examined as a witness in his own behalf, and testified, in substance, that he never used the ward’s money for his own purposes, nor allowed it to become mingled with his own; that he kept it lent out as much as possible, and informally exhibited the notes, or other evidences of debt, to the Prohate judge for his approval, which was given in writing upon the notes. That at the commencement of the war, in 1861, her money was all lent out to solvent persons, though the best of them are now of doubtful solvency, and many hopelessly broken. That in 1861 money matters were very tight, and collections could not be made to meet his ward’s necessary expenses. That in 1862, Confederate treasury notes, cotton notes, &c., were issued, which made money matters more easy. That during 1862, all, or nearly all, the ward’s money was paid to him in Confederate treasury notes, which he received “in due course of business,” to wit, as collections from those to whom he had previously lent. That he received them as so much money, as he and all other prudent men did for themselves individually — this currency being then regarded as a safer investment than individual security, or any kind of property, especially in the section of country in which the money was lent, which was threatened with raids by the enemy, and the military — 424 — were ordered to bum all cotton in danger of falling into the enemy’s hands. That after he had thus collected all ward’s money in Confederate States treasury notes, all his subsequent annual settlements charging him with “ money,” should have designated it as Confederate States treasury notes instead of money, but this was omitted by oversight and mistake of himself and counsel. That having thus received ward’s money in Confederate States treasury notes, it was so plentiful in the country that he could not re-lend it, and after repeated and diligent efforts to do so, during the years 1862 and 1863, he obtained permission of the Probate Court, at January term, 1864, to retain the same without interest. That the value of the treasury notes as compared with coin, was as follows, progressively downwards, to wit: in 1862, from 20 per cent, discount to three dollars for one; in 1863 from three to twenty-one dollars for one; and in 1864 from twenty-one to fifty-one dollars for one. That in 1864, at the earnest solicitation of ward’s mother, by the verbal advice of the Probate judge, and on consultation with prudent and sagacious men, he consented to invest ward’s treasury notes in Confederate bonds, but could not then do so at a less rate than seventeen per cent, premium for the bonds. That with his own cotton he purchased $7000 worth of bonds (the same specified in this account), and gave them to ward at par, he retaining her $7,000 of treasury notes, which are yet in his possession. That in receiving the notes, and investing them in bonds, he acted precisely as he did for himself. He. received all debts, and the price of all produce sold during the war in that medium, and had large amounts of notes and bonds on hand at the close of the war. That in so doing, he did what the most prudent and sagacious men in the country did, and honestly believed it was best for his ward. The competency of this testimony was all objected to at the time, on appropriate grounds stated in the record, and exceptions were taken to its admission by the court. On cross-examination, the witness stated he did not invest his own entire estate in Confederate notes or bonds, but only — 425 — bis surplus means, and. tbat be bad a large estate not so invested. Accountant also introduced witnesses wbo testified tbat tbe conversion of tbe treasury notes into bonds, at tbe time it was done by accountant, wras a good investment of tbe former, and tbe most prudent, practicable use to be made of them. Tbat they bad done tbe same, and bad also received Confederate States treasury notes for them good debts. Accountant then produced two other bonds of $1,000 each, and testified tbat be bad bought them for tbe ward at tbe same time with tbe others, and then tendered them to tbe ward, wbo declined to receive them, and objected to their admissibility alike with tbe others. Tbe case was submitted on tbe foregoing testimony. Under tbe circumstances disclosed by tbe record, we think tbe court below erred in admitting tbe testimony of tbe accountant, to explain and disprove bis settlements of bis accounts in 1862,1863, and 1864, and bis sworn petition filed in October, 1863, by showing tbat tbe money in bis hands according to these accounts, and this petition, was not money, but consisted of treasury notes of tbe Confederate States of America, received by him in payment of debts due to bis ward, and afterwards converted by him some time during tbe year 1865 into bonds issued by the same government. By his annual account presented at July term, 1862, tbe accountant charged himself as follows: “ 1861, June 1, to amount due on last annual account, $7,795.82; interest on same to July 1, 1862, $675.63 ; ” and after deducting disbursements, strikes a balance against himself of $7,677.38; which account was examined and allowed, and ordered to be recorded. At September term, 1863, be presented another account, which is entitled “ a true statement of bis actions in full touching premises in the said guardianship for the year 1862-3, commencing and running from the July term, 1862, to the present time.” In this account be charges himself, “ 1863, July 10, to balance due her on last annual account for 1862, $7,677.38,” — 426 — and after deducting disbursements, he states a “ balance due” of $7,176.32; and adds at the foot: “ The foregoing is a true statement of the annual account and report, and your said applicant respectfully submits the same to the court now sitting, &c.” This account was also examined, approved, and ordered to record. At July term, 1864, another account was presented, with a similar caption to the last, in which the accountant charged himself as of July 4, 1864, with “balance due as per last annual account for 1862” (should be 1863), $7,176.32, and after deducting disbursements, strikes a “balance due” of $5,729.96, and concludes as the account of the previous year, and this also was approved and recorded. The petition filed in October, 1863, states that he has a large amount of money, say $7,000, on hand, which he is unable to loan out, and which, in the disturbed condition of the country, he thinks it would be unsafe to invest; that he has had said money on hand all the year, and prays to be permitted to keep it without paying interest. And upon this petition he obtains the order of the court at January term, 1864, permitting him to hold the money then in his hands, belonging to his ward, until he could have an opportunity of loaning out the same into good hands at interest. During all these proceedings there is not a single hint that he had received the depreciated issues of the Confederate government in payment of the entire estate of his ward, but all the proceedings speaks of money, and the accounts and reports are made out in dollars and cents, which can only mean the constitutional currency of the country. Indeed the proceedings themselves seem to be inconsistent with the idea of any other basis than actual money, for it is inconceivable that an intelligent gentleman, and an enlightened court, could have thought it unsafe in January, 1864, to invest Confederate treasury notes in property in consequence of the disturbed condition of the country, when these notes were already at a depreciation of twenty-one dollars for one in coin, and were “progressing downwards ” with startling rapidity. But however that may — 427 — be, it is clear that the settlement of the accounts referred to after 1¿he time of the alleged conversion of the ward’s estate into Confederate notes, must be held to be binding and conclusive on the accountant, and not liable to be explained or contradicted by parol testimony. If at the time of the presentation of these accounts, and of the petition before quoted, the money originally received by the guardian had been changed into this new form, it was the duty of the guardian to have promptly reported the facts to the court, and to have conformed his future proceedings in the court to the new attitude of the' case. His continuance to make his reports in precisely the same form as he had done from the time of the original receipt of the money, was equivalent to a report that the condition of the fund remained unchanged. Had he made known the facts at the proper time, the comt could have determined, upon the facts and the law as they then stood, whether he was justifiable in receiving this sort of funds in payment of debts due to his ward, and if so, could have directed what disposition should be made of them. But nothing is heard on the subject until August, 1865, after the Confederate government had ceased to exist, and its obligations had become utterly worthless — when, for the first time, it is proposed to wipe out the whole estate of the ward by substituting for it these bonds, of no value whatever. It would be establishing a precedent of most dangerous tendency to allow this to be done, and would open wide the door for the commission of frauds upon the rights of the widow and the orphan. The idea is as much opposed to established legal principles as it is against sound policy. Besides the admitted general principle that no written instrument, including records, can be explained or contradicted by parol evidence, the very question involved-here has been adjudicated in this court. In Bailey v. Dilworth, 10 S. & M. 404, a final account of an executor ascertaining a balance against him in dollars and cents was held to be conclusive evidence of a debt in constitutional currency, and .not liable to be impeached or contradicted by proof that the money collected by the executor was in the depreciated issues of — 428 — suspended or broken banks. And it is also said to be the duty of the executor to disclose the true state of facts to the Rrobate Court,by which tribunal such allowances might have been made as the circumstances warranted. The same rule as to the conclusiveness of the settlement is applied to the annual accounts of guardians, which are final against him, in the court where rendered, and can only be set aside by due course of procedure. Johnson v. Miller, 33 Miss. 553. It is not necessary to say that this rule, in its application to annual settlements, must be held to apply, with undeviating strictness, in all cases and under all circumstances ; for corrections of such accounts have been allowed under certain circumstances. Effinger v. Richards, 35 Miss. 540, Crump v. Geroch, MS., not reported. If we admit that inaccuracies in such accounts, arising from sheer inadvertence or oversight, or from palpable mistake or miscalculation, may, in proper cases, be corrected, the present case cannot be regarded as forming an exception to the general rule. The failure to report the facts until the lapse of three years, and until the circumstances of the country had wholly changed, and the securities received had become utterly worthless, and the continuance to report the condition of the estate year after year, as though the change had taken place, cannot be put in the category of inadvertence or oversight. It is a failure to discharge a duty incumbent on the guardian, and the plea of forgetfulness or oversight cannot entitle him to relief against its consequences.. We are therefore of opinion that the court below erred in overruling the sixth exception of the plaintiff in error, to the eleventh account of the defendant in error, and that the same ought to have been sustained, and the guardian required to account for the estate received by him, in legal currency. The first five exceptions were sustained, and the guardian ordered to alter and correct his account accordingly; and the plaintiff in error asks for a reversal of this part of the decree on the ground that it does not go farther, and make the proper corrections in the account. But this was unnecessary. The decree does order the corrections ; and if the accountant does not comply with the order, it will be the duty of the court to cause — 429 — the account to be restated according to the decree, by reference to a commissioner, or otherwise in conformity with the usual practice of the court. The decree of the court, overruling the sixth exception, will be reversed, and the cause remanded for further proceedings in accordánce with this opinion. This case is submitted with the foregoing, and a similar judgment will be entered, the facts and principles of the cases being the same, except as to names and sums. The decree of the court below overruling the fifth, exception, is reversed, and the cause remanded for further proceedings in accordance with the foregoing opinions in No. 10,368.