[402]

and

much as the trustee is not in any manner a party and 9 to them in fee, as tenants in common,
to it, and inasmuch as it is left uncertain what of the reference, in the deed of June 1, 1874, to
might have been the intention of the complain- the deed of February 2, 1854, as the basis of
ant, Sarah A. Brereton, in affixing her signature the title which the grantors were conveying, it
and uniting in the acknowledgment of the may have been supposed that there was suf
same. Upon the other hand, it is argued that ficient scope for the signature and acknowledg-
the paper is such an act of the said Sarah A. ment by Mrs. Brereton, as regarded lot 9, in
Brereton as will induce a court of equity to the fact that, if her husband had an interest
recognize it as the exercise, upon her part, of the under that deed, in respect to lot 9, which was
power of appointment, or a direction to her capable of conveyance, she, as his wife, had an
trustee, and to enforce the same as such and, inchoate right of dower in regard to it, which
this distribution being in a court of equity, and she had not conveyed by the deed of Septem-
being the act of a court of equity, the instru- ber 29, 1859, and which the parties to the deed
ment in question will be so treated and en- of June 1, 1874, and the magistrate, had a
forced. *** I am constrained to look upon right to regard as the subject-matter to be af-
the paper as absolutely void so far as " Sarah A. fected by her signature and acknowledgment,
Brereton "is concerned, for the purpose of this although the deed of May 1, 1851, had, by the
proceeding. * ** I have, therefore * death of Mary Ann Brereton, become operative
treated this conveyance as that of William H. to vest in William H. and Samuel, Jr., a title
Brereton alone, and as not conveying or affect-in fee to the land in lot.9, prior to the execu-
ing the interest or estate of the said Sarah A.
Brereton, and the distribution to the indebted-
ness secured by this deed of trust is, therefore,
made from the share of the said William H.
Brereton so far as the same is available."

*

Mrs. Batchelor filed exceptions to the report of the auditor, in which she claims that the deed of trust to Ward, of June 1, 1874, is a good and valid lien as well upon the moiety of or interest in the land described in the bill, held by Peter Hannay, trustee, as upon that of William H. Brereton, and she, therefore, excepts to the allowance of every item in the report which treats the said deed of trust as invalid and not a lien upon the moiety or interest held by Hannay. On a hearing by the court at Special Term, the exceptions filed by Mrs. Batchelor were sustained, so far as they related to the deed of June 1, 1874, and the court, in its decree, declared | that deed to be a valid lien and charge on both moieties of the land sold, and the report was overruled, so far as it appropriated the proceeds of sale in favor of Sarah A. Brereton and James I. Brereton, as against the deed of June 1, 1874. The court in General Term, on an appeal by the plaintiff from the decree sustaining Mrs. Batchelor's exceptions, reversed the decree in Special Term, so far as it sustained the exceptions in regard to the effect of the plaintiff's signature to the deed of June 1, 1874, and her acknowledgment thereof and overruled the exceptions and confirmed the report of the auditor. From the decree to that effect, Mrs. Batchelor has appealed to this court.

The only question involved is that stated by the auditor in his report, and it is easy of solution. Mrs. Brereton was not named in the deed of June 1, 1874. She was not a party to it. She granted nothing by it. Although she signed it and although the magistrate certified that she was a party to it and that she acknowledged it to be her act and deed, after having had it fully explained to her and declared that she had willingly signed, scaled and delivered it and that she wished not to retract it, it is apparent that she was regarded, by the parties to it and the magistrate, as having executed it only in respect of a dower interest of hers, as the wife of Samuel Brereton, a supposed interest perhaps, as regarded lot 9, and an actual interest as regarded lot 8. In view of the deed of February 2, 1854, to William H. Brereton and Samuel Brereton, conveying the land in lots 8

tion of the deeds of February 1, 1854, and Sep-
tember 29, 1859. This may have been thought
a sufficient reason for signing the deed, so far
as the land in question, which is wholly in lot
9, is concerned, the deed of September 29, 1859,
covering land wholly in lot 9. Then, again,
the deeds of May 1, 1851, February 2, 1854, and
June 1, 1874, cover land in lot 8 as well as land
in lot 9; and, as to the land in lot 8, there was
clearly a dower interest to be covered by the exe-
cution, by Mrs. Brereton, of the last named deed.

But, however all this may be, and it is re-
ferred to only as furnishing an explanation of
her signature, her interest in the undivided half
of the land in lot 9, for her life, free from the
ownership of her husband, with the power to
direct the conveyance of it by Hannay, was a
distinct interest, the legal title to which was in
Hannay, in trust, and could not be conveyed,
except by Hannay, on her request or direction
in writing, with the written consent of her hus-
band. Under the deed of September 29, 1859,
no interest in the undivided half of the land in
lot 9 could revert to her husband prior to her
death. Therefore, it was not any interest of
his under that deed which her husband was
conveying by the deed of June 1, 1874.

[403]

Nor was it her power of appointment, created by the deed of September 29, 1859, which she was exercising by the deed of June 1, 1874, because that was to be made effective by a conveyance by Hannay, and there was no request [404] or direction by her to Hannay to convey, and he never did convey. The debt of $3,500 to Batchelor, named in the latter deed, is described therein as a debt by William H. Brereton and Samuel Brereton to Batchelor, and Mrs. Brereton is not named as debtor. Therefore, all property which they were conveying by that deed to secure that debt, was presumably their own property, and any interest of Mrs. Brereton in it, suflicient to call for her signature to that deed, was presumably an interest created by her being the wife of Samuel and which was supposed to grow out of his title and her marital relation and not to have been before conveyed, irrespective of any other interest which she had in the land or any power of appointment in respect of it.

It needs not much argument or authority to support the conclusion at which we have arrived. In Bank v. Rice, 4 How., 225, 241, it was held, that, in order to convey by grant, the

personal property of the ward in his possession and
re-invest the proceeds.
9. A guardian appointed in New York before the
war of the rebellion, of an infant then temporarily
residing there, but domiciled in Georgia, sold bank
stock of his ward in New York during the war, and
there invested the proceeds in bonds issued before
the war, by the Cities of Mobile, Memphis and New
Orleans, and in bonds issued by a railroad corpora-
tion chartered by the State of Tennessee and whose
road was in Tennessee and Georgia, and the railroad
bonds indorsed by the State of Tennessee at the
time of their issue, and deposited the bonds in a
bank in Canada: held, that if in so doing he used due
care and prudence, having regard to the best pecun-
iary interests of his ward, he was not accountable to
the ward for loss by depreciation of the bonds, al-
though one object of the sale and investment was
United States.
to save the ward's money from confiscation by the

10. An investment by a guardian of money of his ward,during the war of the rebellion and while both guardian and ward were residing within the enemy's territory, in bonds of the so-called Confederate States, was unlawful, and the guardian is responJames H. McKenney, Clerk, Sup. Court, U. S. sible to the ward for the sum so invested.

an order would have passed on application, as | from claiming that Mr. Lamar has not fully aca matter of course, will be regarded as emanat- counted to ber as her guardian. ing from an order therefor. Hunt v. Freeman, 1 Ohio, 490; Lee v. Stone, 5 Gill & J. (Md.), 1; Bank of Md. v. Ruff, 7 Gill & J., 448. The war terminated the guardianship of Lamar, under the laws of the State of New York. Act of July 13, 1861, 12 Stat. at L., 255; the President's Proclamation of Aug. 16, 1861, 12 Stat. at L., 1262; Mrs. Alexander's Case, 2 Wall., 419 (69 U. S., XVII., 919); Story, Prom. N., sec. 94; Coll. Part., sec. 115; Bell v. Chapman, 10 Johns., 183; Griswold v. Waddington, 16 Johns., 438; Hanger v. Abbott, 6 Wall., 532 (73 U. S., XVIII., 939); Sanderson v. Morgan, 39 N. Y., 231; Kanawha Coal Co. v. K. & O. Coal Co., 7 Blatchf., 409; Ketcham v. R. R. Co., 2 Woods, 532.

Horn v. Lockhart (supra); Alexander v.Bryan (ante, 195).

The fact that the ward's property in New York was liable to confiscation is no justification for its removal from New York and re-investment in southern securities.

The rights of the Misses Sims to property in the North, were not in any way affected by the existence of the war, unless the United States Government took affirmative legal proceedings to confiscate. Conrad v. Waples, 96 U. S., 279 (XXIV., 721); Airhart v. Massieu, 98 U. S.,491 (XXV., 213).

immaterial, and is no justification for the guard-|ian from a decree against him upon a bill in
ian's investments.
equity filed by the administratrix of his ward.
The original bill, filed on July 1, 1875, by
Ann C. Sims, a citizen of Alabama, as adminis-
tratrix of Martha M. Sims, in the Supreme
Court of the State of New York, alleged that
on December 11, 1855, the defendant's testator,
Gazaway B. Lamar, was duly appointed, by
the surrogate of the County of Richmond in
that State, guardian of the person and estate of
Martha M. Sims, an infant of six years of age,
then a resident of that county, and gave bond
as such, and took into his possession and con-
trol all her property, being more than $5,000;
that on October 5, 1874, he died in New York,
and on November 10, 1874, his will was there
admitted to probate, and the defendant, a citi-
zen of New York, was appointed his executor;
and that he and his executor had neglected to
render any account of his guardianship to the
surrogate of Richmond County or to any court
The appointment of Mr. Micou as guardian having cognizance thereof or to the ward or her
of Ann C. Sims in 1867, and Mr. Lamar's trans-administratrix; and prayed for an account, and
fer of the remaining securities to him, constitute for judgment for the amount found to be due.
no defense. There is nothing in the suggestion The defendant removed the case into the Cir-
that Mr. Lamar's guardianship terminated when cuit Court of the United States for the Southern
the ward became fourteen years of age.
District of New York; and there filed an an-

It is no part of a guardian's duty to protect his ward's property against the legal demands of the government. What the guardian in fact did, was not only to withdraw it from the reach of the United States Government, but to apply it in aid of the Confederate Government.

2 N. Y. R. S., 150; N. Y. Code of Civil Pro-swer, averring that in 1855, when Lamar was cedure, sec. 2822.

The guardian previously appointed retains all his powers and authority and is subject to all his duties and liabilities, until his successor is appointed by the same court which appointed him.

Matter of Dyer, 5 Paige, 534; Matter of Nicoll, 1 Johns. Ch., 25.

The defense of ratification is inapplicable. Such defense must be clearly proved, and it must appear that the party ratifying had full and exact knowledge of the facts.

Adair v. Brimmer, 74 N. Y., 554.

As Ann C. Sims and Mrs. Micou, at the time of these investments, had no interest in the property of Martha M. Sims, there was nothing for an estoppel to work upon. Ex parte Smith, 2 M., D., & DeG., 113; Dillett v. Kemble, 25 N. J. E., 66; Plant v. McEwen, 4 Conn., 544.

appointed guardian of Martha M. Sims, he was a citizen of Georgia and she was a citizen of Alabama, having a temporary residence in the City of New York; that in the spring of 1861 the States of Georgia and Alabama declared themselves to have seceded from the United States and to constitute members of the so-called Confederate States of America; whereupon, a state of war arose between the United States and the Confederate States, which continued to be flagrant for more than four years after; that [454] Lamar and Martha M. Sims were, in the spring of 1861, citizens and residents of the States of Georgia and Alabama respectively and citizens of the Confederate States and were engaged in aiding and abetting the State of Georgia and the so-called Confederate States in their rebellion against the United States, and she continued to aid and abet until the time of her death, and he The admissions of an administrator, made be- continued to aid and abet till January, 1865; fore his appointment, are inadmissible against that the United States by various public Acts dehim when suing in his representative capacity.clared all his and her property, of any kind, to 1 Greenl. Ev., sec. 179; Cowen & Hill, Notes to be liable to seizure and confiscation by the Phill. Ev., sec., 107, and cases cited. United States, and they both were, by the vaIt is the duty of the guardian to take all the rious Acts of Congress of the United States, reasonable steps to collect and protect the prop-outlawed and debarred of any access to any erty of the ward, whether situated in the State where he is appointed or not. Taylor v. Bemiss (ante, 64); Shultz v. Pulver, 3 Paige, 182; S. C., 11 Wend., 361; Matter of Butler, 38 N. Y., 397. The court did not err in charging the guardian with interest at six per cent on his balances down to January 1, 1880. This rate was established as the rule in New York. King v. Talbot, 40 N. Y., 76.

In such a case the United States Courts should follow the rules prescribed by the State Courts. Suydam v. Williamson, 24 How., 427 (65 U. S., XVI., 742); Pennington v. Gibson, 16 How., 65; Hinde v. Vattier, 5 Pet., 398; Jackson v. Chew, 12 Wheat., 153.

court of the United States, whereby it was im-
possible for Lamar to appear in the Surrogate's
Court of Richmond County, to settle and close
his accounts there and to be discharged from his
liability as guardian, in consequence whereof
the relation of guardian and ward, so far as it
depended upon the orders of that court, ceased
and determined; that, for the purpose of saving
the ward's property from seizure and confisca-
tion by the United States, Lamar, at the request
of the ward and of her natural guardians, all
citizens of the State of Alabama, withdrew the
funds belonging to her, from the City of New
York, and invested them for her benefit and ac-
count in such securitics as by the laws of the
States of Alabama and Georgia and of the Con-

Mr. Justice Gray delivered the opinion of federate States he might lawfully do; that in the court:

1864, upon the death of Martha M. Sims, all her

This is an appeal by the executor of a guard-property vested in her sister, Ann C. Sims, as

[455]

her next of kin, and any accounting of Lamar
for that property was to be made to her; that on
March 15, 1867, at the written request of Ann C.
Sims and of her natural guardians, Benjamin
H. Micou was appointed her legal guardian by
the Probate Court of Montgomery County, in
the State of Alabama, which was at that time
her residence, and Lamar thereupon accounted
for and paid over all property, with which he
was chargeable as guardian of Martha M. Sims,
to Micou as her guardian, and received from
him a full release therefor; and that Ann C.
Sims when she became of age ratified and con-
firmed the same. To that answer the plaintiff
filed a general replication.

The case was set down for hearing in the cir-
cuit court, upon the bill, answer and replication
and a statement of facts agreed by the parties,
in substance as follows:

the children were educated and supported at
Mr. Micou's expense.

From 1855 to 1859 Lamar resided partly in Georgia and partly in New York. In the spring of 1861 he had a temporary residence in the City of New York and, upon the breaking out of the war of the rebellion and after removing all his own property, left New York, and passed through the lines to Savannah, and there resided, sympathizing with the rebellion and doing what he could to accomplish its success, until January, 1865, and continued to have his residence in Savannah until 1872 or 1873, when he went to New York again, and afterwards lived there. Mr. and Mrs. Micou also sympathized with the rebellion and desired its success, and each of them, as well as Lamar, failed during the rebellion to bear true allegiance to the United States.

On November 23, 1850, William W. Sims, a At the time of Lamar's appointment as guardcitizen of Georgia, died at Savannah in that ian, ten shares in the stock of the Mechanics' State, leaving a widow, who was appointed his Bank of Augusta in the State of Georgia, which administratrix, and two infant daughters, Mar- had belonged to William W. Sims in his lifetha M. Sims, born at Savannah on September 8, time, stood on the books of the bank in the name 1849, and Ann C. Sims, born in Florida on June of Mrs. Abercrombie as his administratrix, of 1, 1851. In 1853 the widow married the Rev. which one third belonged to her as his widow, Richard M. Abercrombie, of Clifton in the and one third to each of the infants. In JanCounty of Richmond and State of New York. uary, 1856, the bank refused a request of Lamar On December 11, 1855, on the petition of Mrs. to transfer one third of that stock to him as Abercrombie, Gazaway B. Lamar, an uncle of guardian of each infant, but afterwards paid to Mr. Sims, and then residing at Brooklyn in the him as guardian from time to time two thirds of State of New York, was appointed by the sur- the dividends during the life of Mrs. Abercromrogate of Richmond County guardian of the bie, and all the dividends after her death until person and estate of each child "until she shall 1865. During the period last named, he also rearrive at the age of fourteen years, and until ceived as guardian the dividends on some other another guardian shall be appointed;" and gave bank stock in Savannah, which Mrs. Abercrombond to her, with surcties, "To faithfully in all bie owned, and to which, on her death, her husthings discharge the duty of a guardian to the band became entitled. Certain facts, relied on said minor according to law, and render a true as showing that he, immediately after his wife's and just account of all moneys and other prop-death, made a surrender of her interest in the erty received by him, and of the application bank shares to Lamar, as guardian of her chilthereof, and of his guardianship in all respects, dren, are not material to the understanding of [457] to any court having cognizance thereof; " and the decision of this court, but are recapitulated he immediately received from Mrs. Abercrom- in the opinion of the circuit court. 7 Fed. Rep., bie, in money, $5,166.89 belonging to each 180-185. ward, and invested part of it in January and April, 1856, in stock of the Bank of the Republic at New York, and part of it in March and July, 1857, in stock of the Bank of Commerce at Savannah, each of which was then paying and continued to pay, until April, 1861, good dividends annually, the one of ten and the other of eight per cent.

In 1856, several months after Lamar's appointment as guardian, Mr. and Mrs. Abercrombie removed from Clifton, in the State of New York, to Hartford, in the State of Connecticut, and there resided till her death in the spring of 1859. The children lived with Mr. and Mrs. Abercrombie, Lamar as guardian paying Mr. Abercrombie for their board, at Clifton and at Hartford, from the marriage until her death; and were then removed to Augusta in the State of Georgia, and there lived with their paternal [456] grandmother and her unmarried daughter and only living child, their aunt; Lamar, as guardian, continuing to pay their board. After 1856, neither of the children ever resided in the State of New York. On January 18, 1860, their aunt was married to Benjamin H. Micou, of Montgomery in the State of Alabama, and the children and their grandmother thereafter lived with Mr. and Mrs. Micou at Montgomery, and

In the winter of 1861-62, Lamar, fearing that the stock in the Bank of the Republic at New York, held by him as guardian, would be confiscated by the United States, had it sold by a friend in New York; the proceeds of the sale, which were about twenty per cent less than the par value of the stock, invested at New York in guarantied bonds of the Cities of New Orleans, Memphis and Mobile, and of the East Tennessee and Georgia Railroad Company; and those bonds deposited in a bank in Canada,

Lamar from time to time invested the property of his wards, that was within the so-called Confederate States, in whatever seemed to him to be the most secure and safe; some in Confederate States bonds, some in the bonds of the individual States which composed the Confederacy, and some in bonds of cities and of railroad corporations and stock of banks within those States.

On the money of his wards, accruing from dividends on bank stock, and remaining in his hands, he charged himself with interest, until the summer of 1862, when, with the advice and aid of Mr. Micou, he invested $7,000 of such money in bonds of the Confederate States and of the State of Alabama; and in 1863, with the like advice and aid, sold the Alabama bonds for