Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1867-10-10
IMPORTANT DECISION.

by request, Judge John T. Harris has
furnished the Rockingham Register with
a decision rendered at the September term
in an important suit pending in the Cir
cult Court of Highland county. The facts
involved in the case are as follows -
A short time previous to the war, James
B. Campbell, of Highland county died,
leaving wife, but no children, surviving
him. A few dpys before his death he
transferred all his bonds and notos by wri-
ting, not under seal, to one OF his brothers,
for the benefit Of all-seven in number
The sum thus transferred was about sew
enty thousand dollars Suit was instituted
by his widow to set aside this transfer to
her husbands brothers. The Court of
Appeals sustained her pretensions, and she
was thus entitled to about $25 200, being
half of her husbands personal estate
Pending the said suit, the said brothers
divided the bonds equally between them,
the executors (two of the brothers of Jas.
B. CampbelD taking refunding bonds from
them. The war came on, finding the estate
in that condition and unsettled In the
meantime the widow died, and some of
her heirs remained beyond the military
line during the war. In 1858, the exc
cutors applied to Judge Thompson, by pc
tltion, for leave 10 invest so much of the
estate as was due the personal representa-
tives Of the widow Leave was granted,
and the investment made. The executors
accounts bod been referred to a commits
sioner for settlement He refused to Gre
dited them by this sum, $37 900, so in
vested, and the executors except to the
report on that account In regard to
which Judge Harris said: s'The irst cues
ton presented by this exception is, whe-
Their the order of Judge Thompson, made
on the 18th day Of June, 1868, upon the
petition of the executors, authorizing them
to invest in Confederate bonds, is final or
not. Ii the order is iilal, then the action
under it cannot be inquired into, except to
see that it has been executed l cannot
believe that the Legislature, even in the
excitement that then characterized it, con-
templated for moment permitting the
Fiduciary upon the ecpa,te petition, whe-
Their true or false, without notice to the
parties interested, to make an investment
of their funds, without their knowledge or
consent, and then to plead that the parties
injured by such investment are precluded
and cannot question the proprety Of the
order. If this were law then every safeguard
heretofore thrown around the infant would ne
subvcrted, and his guardian, chosen to be-
friend and protect him. might become the
instrument to defraud him of every cent
of his patrimony. His real estate cannot
be sold without great particularly to pro-
tect him. His guardian must make him
a party to the suit for that purpose. He
must have a guardian I'D Hten to defen
his interest, and, if over fourteen years of
age, answer the bill himself No other
suit can be maintained fer or against him,
unless he be before the Court, and his in
terest protected by it to the uttermost.
Yet, if the orders for investment are final,
and the guardian has wrongfully invested
the funds Of his wards, they cannot i'm
peach it, and must submit to their hard
fate. | cannot think such to be the law,
but am of the opinion that every invest
ment made under the act of 1868 liable to
revision, and if there has been an error
on the part of the Fiduciary, or it be a
case not contemplated by the law, the same
may be revised and corrected.
"The act of 1868 provides that when
ever any guardian, &C., have in his hands
moneys received in the due exercise of his
trust, belonging to the estate held by him
as such fiduciary, for any cause whatever,
be unable to pay over to the parties enti-
tied thereto, it shall be lawful for such f.
duciary to apply, by motion or petition, to
any Judge Of Circuit Court in vacation
for leave to invest &c.
"Admitting the executors of James B.
Campbell to be such as contemplated by
the law, the question then recurs, was the
money received by them, and which, by
the order Of Judge Thompson, they in
vested, received in the due exercise of
their trnst? The large sum due the rep
resentatives Of Alcinda Campbell, the de-
ceased widow of James B. Campbell, as
shown by the commissioners report, based
on the decision Of the Court of Appeals,
was as near as could be equally divided
among the seven brothers of James B.
Campbell, two of whom are the executors
Each of these brothers contributed his
quota Of the $37 900 invested. 1t appears
that not dollar Of this sum was collected
by the executors from the personal assets
of James B. Campbell, except $4,000 of
the Dinwiddie fund, and 81 200 of Pull
Inns. The balance was made up from the
individual means of each of the brothers,
each paying to the executors about 49,
600 One Of the executors sold 81 900
worth of land belonging to the estate, and
, the money arising from that sale was in
vested. Can it be believed for moment
that the Legislature contemplated provid-
ing an easy mode for persons to pay their
debts by giving them the advantage of an
"A 4oI H., Io.A Il