Hoffman v. Stoudemire , 42 Ala. 593 ( 1868 )

A. J. WALKER, C. J.

Opon the .final settlement of the accounts of the appellee, as guardian of the appellant he was credited with $3,900. This credit was allowed upon the ground that so much money was, by the guardian, during the existence of the government of the Confederate States, invested in four per cent, certificates of that government.

Several objections are made to the legality of this credit. The first objection which we will notice is, that the investment was not reported to the probate ■ court within sixty days after the investment. The act of 9th November, 1861, (Pamphlet Acts, p. 53,) requires that such investment should be reported within sixty days, "‘unless good cause [should] be shown to the proper court for not making the report within that time, or they [should | not be so credited.” The investment here was made on the third of March, 1864, and was not reported until the 8th May, 1866. • At that time, and upon the reception of the report, it was ordered, that it be received and filed and recorded, and ratified and confirmed, and that the guardian be allowed a credit for the investment. On the 8th June, 1866, an annual settlement was made by the guardian, and on that settlement a credit for the investment was allowed. If it be doubtful whether the action of the court directly upon the report involved a valid decision, that there was good cause for not making the report within sixty days, it is certain that on the 8th June, 1866, the court, in deciding that the credit should be allowed, adjudged that there was a good cause for the omission to report within the precribed time. The annual settlement is to be regarded as prima facie correct. There is no evidence assailing its correctness as to there having been such good cause.

It is contended that the force of the act of 9th November, 1861, expired with the de facto government of the Confederate States, and that no investment under that act can be sustained, unless it was consummated before that time. From this proposition we do not dissent, but we think it does not affect the case. If there was a good cause for not reporting within sixty days, such cause had its existence within sixty days from the 3d March, 1864, and of course during the existence of the Confederate government. The guardian having made the investment, and having a good cause for not reporting within sixty days during the existence of that government, his right to a credit was complete. This right, thus consummated and vested under the de facto government, was not taken away by the restoration of the authority of the United States. The question of the existence of this right is necessarily referred to the tribunal in which it is set up, and independent of any statutory jurisdiction upon the subject, the probate court in which the credit is claimed must have authority to pass upon the questions involved in the legality of such credit. The reference in the act “ to the proper court” of the question of the sufficiency of the cause is entirely immaterial. The proper court, aside from the act as well as under the act, is the court in which the right should be set up. For these reasons, we conclude that the allowance of the credit was an adjudication in favor of a right consummated and vested drrring the existence of the Confederate government, and not the completion of a right in progress when that govment ceased.

It is insisted .for the appellant that an investment in four per cent, certificates was not an investment in bonds. Those certificates were evidence afforded by the government of the investment in bonds, and an obligation of the government to deliver the bonds. The point is -decided adversely to the appellant in Dockery v. McDowell, 40 Ala. Rep. 476.

The adjudication in the annual settlement of June 8th, 1866, is prima facie evidence of the correctness of the credit. We have been invited by the appellant’s counsel to look behind the record of the final settlement at antecedent proceedings in the administration, not set forth in the bill of exceptions, to find evidence of the error in allowing the credit on the authority of tbe annual settlement of 1866. Conceding that tbe previous proceedings of tbe probate court in the administration, (as to which we make no decision,) are evidence, we do not find enough in them to overturn tbe prima facie evidence of the correctness of the credit afforded by the annual settlement of 1866.

Bird, J.

Not concurring in the result attained by the court; but is of opinion that we should look to the entire record, and in so doing, he is satisfied that the appellee is not entitled to a credit for his investments in Confederate four per cent, certificates.

Affirmed.