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Micou v. Lamar.

to have been only a nominal or formal defendant when the petition for removal was filed.

The motion to remand the cause is denied.

John F. Dillon, for the motion.

Francis N. Bangs, opposed.

Mary J. C. Micou, ADMINISTRATRIX, WITH THE WILL AN

NEXED, OF ANN C. SIMS

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C. De Rossett Lamar, EXECUTOR, &c., OF Gazaway B. LA

In Equity.

MAR.

L., in 1855, was appointed by the Surrogate of Richmond county, New York,

guardian of the person and estate of S., an infant 4 years of age. He accepted the trust, and gave a bond, and took possession of money and other property of S. L. was, at the time, a citizen of Georgia, and S. was a citizen of Alabama, temporarily residing in New York. In 1861, the war the rebellion occurred between the United States and those two States. L. having died, and never having accounted to said Surrogate, S., having become of age, brought this suit, in 1875, against L.'s executor, for an account. He set up, in defeoce, that L. and S. aided the rebellion, which lasted 4 years; that the property of L. and of S. was liable to confiscation by the United States; that L. could not, during the war, account to said Surrogate ; that, by the war, the relation of guardian and ward ceased, in respect to such accounting; that L at the request of S. and her natural guardians, all citizens of Alabama, withdrew her funds from New York and invested them in securities authorized by the laws of Georgia and Alabama and of the Confederate States; that, in 1867, he accounted with M., who had been appointed the legal guardian of S., by the proper Court in Alabama, where she then resided, and received from him a release; that S., when she became of age, ratified such release; and that the plaintiff is the sole legatee of S. and ratified all the acts of L:

Held, (1.) Notwithstanding the war, S. had, after its termination, a right to call on L.

to account;

Micou v. Lamar,

(2.) It is no defence, that L, made the investments he did to prevent the prop

erty of S. from being confiscated; (3.) Although the appointment of the new guardian in Alabama was proper, and

the defendant must be credited with what L. paid to the new guardian, he was still liable to account in this suit, notwithstanding the new guardian had giren L a full discharge, on receiving the said secorities in which L. had invested the funds of S., the defendant being credited with anything realized

from such securities; (4.) Ratification by S. is not proved; (6.) The plaintiff, before the death of S., had no such interest as would make her

acts and admissions binding on her when she afterwards became administra

trix of S.; (6.) L. took the risk of the unlawful investments, and must make good what he

received, with interest and annual rests.

(Before CHOATE, J., Southern District of New York, January 2d, 1880.)

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CHATE, J. This is a suit brought by the plaintiff's testatrix, Ann C. Sims, in the Supreme Court of the State of New York against the defendant, as executor of Gazaway B. Lamar. The case was removed into this Court by the defendant, and, the plaintiff having died, the suit was revived in the name of the present plaintiff, her administratrix.

The complaint alleges, that, on the 21st day of December, 1855, the defendant's testator, Gazaway B. Lamar, was duly appointed, by the Surrogate of Richmond county, guardian of the said Ann C. Sims, then an infant of about four years of

age, and then residing in said county of Richmond ; that he accepted said trust and gave bond as required by law; that, on or about January 1st, 1856, he took into his possession all the property of said infant, being more than $5,000, in cash and other property; that he never, during his lifetime, rendered an account of said guardianship to the Surrogate of Richmond county, or to any Court having cognizance thereof, or to the plaintiff; and that the said infant has become of full age, and has demanded an account, which the said guardian and his executor have neglected to give. The prayer of the complaint is for an account and payment of the balance found due.

The answer of the defendant avers, that the said Gazaway

Micou v. Lamar.

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B. Lamar was a citizen of Georgia, and said infant was a citizen of Alabama, having a temporary residence in the city of New York, when the said Lamar was appointed guardian of said infant, as alleged in the complaint; that, in the year 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 the spring of 1861; that the said Lamar and Ann C. Sims were, in the spring of 1861, citizens and residents of Georgia and Alabama, respectively, and citizens of the Confederate States, and were engaged in aiding and abetting the State of Georgia and the Confederate States in their rebellion against the United States, and so continued till January, 1865; that the United States, by various public Acts, declared all the estate and property of the said Lamar and the said Ann C. Sims to be liable to seizure and confiscation, and they were outlawed and debarred of any access to any Court of the United States, whereby it was impossible for the said Lamar to appear in the Surrogate's Court of Richmond county, to settle and close his accounts there, and to be discharged of his liability as guardian, in consequence whereof the relation of guardian and ward ceased and determined, so far as the same depended upon the order or decree of said Surrogate's Court; that, for the purpose of saving the money and property of said Ann C. Sims from seizure and confiscation by the United States, the said Lamar, at the request of said Ann C. Sims, and of her natural guardians, all citizens of Alabama, withdrew the funds belonging to her from the city of New York, where they were declared to be forfeited and confiscated, and invested the same, for her benefit and account, in such securities as, by the laws of Alabama and Georgia and of the Confederate States, he might lawfully do; that, on the 15th day of March, 1867, at the written request of said Ann C. Sims, and of her natural guardians, one Benjamin H. Micou was appointed her legal guard

Micou v. Lamar.

ian, by tho Probate Court of Montgomery county, in the State of Alabama, where she then resided ; that said Lamar accounted with, and paid over to, said Micou, as guardian, all the estate with which he was chargeable as guardian, and received from said Micou, as guardian, a full release therefor; and that the said Ann C. Sims ratified and confirmed the same, when she became of age.

. A similar suit was brought by Ann C. Sims, as administratrix of Martha W. Sims, her sister, of whom the said Lamar was at the same time appointed guardian. Martha W. Sims died in 1864, at the age of fifteen years, unmarried and intestate, leaving the said Ann C. Sims her next of kin. The complaint in such second suit states a cause of action similar to that stated in the suit of Ann C. Sims. The answer in that case states the same defences, of the dissolution of the relation of guardian and ward by the war, and the withdrawal of the funds to save them from confiscation. It also avers, that all the rights of Martha W. Sims vested, at her death, in Ann C. Sims, and that the settlement with Micou, as guardian, and his release, discharged the said Lamar from all liability as guardian of Martha W. Sims.

After the revival of these suits in the name of the present plaintiff, cross suits were commenced in this Court, by the defendant, against the present plaintiff, setting up the same defences as in his answers to the original complaints, and further averring, that the present plaintiff is the sole legatee under the will of Ann C. Sims, and entitled to receive, in her own right, whatever shall be recovered in these actions; and that the present plaintiff, as one of the natural guardians of said infants, approved and ratified all the acts of said Lamar, as their guardian, and is, therefore, estopped to deny that those acts were in all respects legal and proper. The present plaintiff, in her answers in the cross suits, denies that she was one of the natural guardians of said infants, and denies the approval and ratification of the acts of the guardian.

The four suits have been tried together, upon an agreed statement of facts.

Micou v. Lamar.

The appointment of the defendant's testator as guardian of the two infants, by the proper Court of the place of their domicile at the time of the appointment, and his receipt, soon afterwards, of moneys belonging to his wards, are admitted. The condition of his bond, which is made a part of the complaint, is, that he “will faithfully, in all things, discharge the duty of a guardian, according to law, and render a true and just account of all moneys and property received by him, and of the application thereof, and of his guardianship, in all re spects, to any Court having cognizance thereof; when thereunto required.” The letters of guardianship appoint him “ the general guardian of the person and estate of said minor, until she shall arrive at the age of fourteen years, and until another guardian shall be appointed,” and require him“ to safely keep the real and personal estate of said minor, and not to suffer any waste, sale or destruction of the same," &c., "and to deliver the same to her when she becomes of full age, or to such other guardian as may be hereafter appointed, in as good order and condition as when received, and also to render a just and true account,” &c., “in any Court having cognizance thereof, when required.”

The Court to which the ward resorted for an account and relief was a Court of general equity jurisdiction, and, there fore, a Court having cognizance thereof, and the causes of action alleged in these complaints are fully sustained by these admitted facts, unless the matters alleged in the answer are, if sustained by the evidence, valid defences to the guardian.

(1.) The first ground of defence insisted on is, that, by the war, the relation of guardian and ward was terminated.

, Hence, it is argued, that, though the former guardian continued to hold, upon some kind of a trust, the assets which he had received as guardian, yet he no longer held them as guardian under and according to the laws of New York; that, the guardian and ward having both acquired new domiciles out of this state, and within the territory of what became, at least pending the war, an alien and a hostile State, this personal domestic relation was thereby wholly broken, and did

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