New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1880-01-03
THE COURTS.
GUARDIANSHIP DURING THE WAR

INTERESTING QUESTIONS DECIDED IN SUR
AGAINST GAZATAY d. LAMAR's EXECUTOR.
Judge ChOate yesterday handed down de-
cson in the United States Circuit Court in suit which
involves interesting questions The suit was brought by
Ann G. Sims against c. De Rosset Lamar. executor OF
Gazaway Lamar. The plaintiff is dead, and the suit
has been revived in the of Mary j. Micon her adj
minIstratrix. The complaint alleges tsag on De-
cember =. 1855, Gazaway b. Lamar was ap-
pointed by the Surrogate OF Richmond County
guardian OF Ann c. Sims, then about four
years old. but that he never rendered accounting
and the prayer of the complaint for an account and
payment Of the balance foand due.
The answer that Gazaway b. Lamar was a citi.
zen OF Georgia. and the child citizen Of Alabama hay
Ing temporary residence in New-York. when Lamar
was appointed her guardian that in 1851 Lamar aud
Aun Sims citizens the Confederate States and
were engaged in aiding the Rebellion; that the United
States oy various public acts declared all their property
liable to confiscauon and they debarred from ac
cess 10 any court of the United States whereby 1t was
Impossible for Lamar 20 appear and settle his
accounts. In consequence whereof the relation
OF guardian and ward ceased, so far as it
depended upon the Richmond County surrogate's
Court; that to the property from seizure
Lamar Withdrew the funds beongn to her from New
York and invested them elsewhere that March 49,
1867, Benjamin II. MicOn appointed guardian OF
Miss Sims bv the Probate Court OF Montgomery Countya
Alabama, aud that Lamar paid 10 him all the
estate with which be chargeablc and received from
him full release.
similar suit was brought by Ann C. Sims, as admin
lsrarIx of Martha NJ SIMS her sister, OF whom Lamar
at the time appointed guardian. Martha died
in 1854 at tine age of fifteen, unmarried and ntestate,
leaving Ann c. Sims her next OF kim The complaint in
this suit is similar to the other
Judge Coate says the FIRST ground OF defence Insisted
Is that by the the relation Of guardian and ward
was terminated and hence II 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 nat he no longer held them as guardian
ward having both acquired new domIcies within
the Confederate States hs personal domestic relation
was thereby wholly brokn and dld not revive when the
war ceased.
nues Tor this position so lar as concerns the care aud
saIeksepsg Of ~ properly and Lsmass liability to ae:
the II the guardian had remained here ana his ward
had become allen enemy, his duties guardian would
be modified By that fact. He could not properly or
legally remit funds for her support 90 any person IN the
hostile territrS But he would still be under the same
obligation as before as 70 the satekeepng OF the prop
cry and whenever the ward ceased TO be an alien
enemy by the termination OF the war, there was no
Even il the dissolved the relation. the effect OF
snch dissolution would not be greater than would
be that of the termination OF the guardianship
by death OF the ward, and If the ward had ded be-
fore the war began the guardian must still account to
her legal representatives. II he ceased to be guardian
he still remains trustee OF the properly upon precisely
the same trusts as to IT'S saie-keeplng aud under the
liability TO account for it according to the tenor OF
his appointment aud bond as before by the acceptance
OF his appointment Lamar undertook do certain def
vested IN certain way ana to account for them when
called upon 10 do so ii certainly Is no answer for him
to saw that OF his own free will he made himself an alien
enemy OF Cue United States and thereby discharged him
sefnm the Obligation thus assumed under the laws o..
NewY0r1. Yet this Is what rue defence amounts
IL his becoming resident OF Georgia and
such engaging the war AGAINST the United states.
far rs this defence res on the ward being an alien
enemy her right to call him account her guardian
before the suspended not annuied by the
The defence urged f. that the guardian. TO pre-
tue c0nfscati0u OF the wards money withdrew it
from its Investment in bank stock Ia New-fork, and
Montreal, Canada, where Il renamed invested
by his direcuou in the bonds Of cities within the Rebel
states ana IN southern railroads. rms point Is clearly
untenable. II is not concnded that the invest
ments made were such as guardian Il allowed
TO make according 10 the laws OF Nsw.iork, and
they were obviously extra hazardous. IL is no part
against the Lawful demands or ms own Government
II under sucn lawful demands it IS seized, the
proofs show what did under cover OF pro-
ecting his wards interests, 10 allow the funds 20 DC
the Rebellion and by this very act set up in cN-
euSe he gave AID and comfort to the enemies oil his Gov
eminent Such an act could NOT be pleaded in ustifca
ton. because itself unlawful"
Another ground OF defence is the transfer OF
hat remained Of the fund IN sG7 10 new guardian
III Alabama and his alleged release OF Lamar. On this
Judge Caoate bol Is that the right OF appointment OF
ant that state. cannot be questioned. Iii this
the request OF Lamar aud of the relatives Of the
infant that another guardian should be appointed
and mis- own SusinesS cares and nernie xiiies
- Had lie asked the Richmond County surrogate's
gramted VIA Wonid Tins have bec an
d v ~ and I,ht II at 0 Tor a noy p he iug
fled for benefit Of the ward. Therefore.
any accounting to be had Lamar should be credited
with the cash payment to the guardian. But be-
yOnd this the Transaction referred 10 settlement
with and release OF Lamar by the guardian neither
to BE-, nor could. II so understood
and intended by the parties, be release OF tho former
guardian OF his Liability 10 for the residue OF Tho
infants estate with witch lac was chargeabe."
In conclusion, Judge ChOatc says: " Although the
defendants esatOr acted without other real pur-
pose It than 60 do what he thought for the
best interest OF his ward yet he took the risk Of invest
ing the funds IN manner not allowed by law, and he
must therefore make good the amount received with n
terest The fact that down to the tIVe OF the
there had been depreciation in factl II material
The ward may elect to reject the investments alto
gethcr. The guardian is to be allowed all payments
made by him for the support and education of the IN
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