Darlington v. Turner

after making the foregoing statement, '.delivered the opinion .of the court.

As no reference was made to the subject in the opinions, below and as we construe the argument at bar as not seriously pressing such question, we assume, for the purposes of the case, the right of the complainants to maintain under the averments of their bill a direct action or.suit to recover the fund in con

In proper sequence the questions for decision are threefold: First. Was the transfer of the property of the estate of Silas H. Turner made as shown on the receipt given to Tracy by Thomas M. Turner as the representative of his minor children lawful and binding upon such minors? Second. If the payment referred to was binding did the receipt and the paper contemporaneously executed by Tracy, in connection with the proof, establish that he or his estate was liable for the value of the investment in real estate shown by the receipt and the paper in question to have been retained in the control of Tracy? Third. Did the receipt, if binding, and the paper in connection with it, embrace all the property held by Tracy as the trustee of Silas H. Turner, or, in other words, did Tracy at the time the receipt was given honestly account for the property in his hands, or did he fraudulently retain for his own benefit a large amount of property of the estate which should have been paid over and for which Tracy or his estate is therefor liable?

Whilst in logical order the questions for decision are as stated, we shall consider them inversely. In other words, we shall first dispose of the alleged fraudulent retention by Tracy of a large portion of the trust fund at the time he made the payment and transfer of property to Thomas M. Turner as the representative of his minor children. We do this because the charge of conspiracy and fraud as pressed, not only in the- argument at bar, but in the opinions below, was treated as affecting the question of the binding nature of the transfer made by Tracy to Turner; and by first disposing of that branch of the case

It will be useful, before particularly considering the facts upon which the alleged fraud on the part of Tracy immediately depends, \o state the antecedents of Tracy and of the two Turners, the dealings between them and the results which followed therefrom, so far as they are uncontroverted.

Philip A Tracy was born in Fauquier County, -Virginia, in 1835. He was living in Washington soon after the close of the .Civil War, was a bookkeeper in a mercantile house, and later became an employe of the Post Office Department, and so continued, if not to, at least up to a short time prior to, his death. He never married. As far 0 it may be inferred from the testimony in the° record, taking no present concern of the charges of fraud- made in the bill, the conviction is irresistibly conveyed to our mind§ that Tracy was a reasonably intelligent; moral, industrious and circumspect person, of a religious tendency of mind, careful in money matters, particular as to details and, óf a kindly, though somewhat eccentric, nature.

Silas H. Turner was also a native of Virginia, and whilst little is shown by the record of his antecedents and character, it is established that he was also a man of thrift and of some business capacity, having been at one time a railroad agent, a dealer in merchandise and cattle, a clerk and an accountant, accustomed to the settlement of estates. Between Tracy and Turner there existed an association and friendship, taking its origin, if not in a boyhood acquaintance, at least one that related back to many years before the death of Turner. As a result of this friendship Turner, trusting in the capacity and integrity of Tracy, began in 1871 to confide his savings to the fetter for investment. Tracy, loaning money upon the security of real estate, was first in the habit, when a loan was 'made, of sending the notes of the borrowers to Turner, who, as the in-, terest payments were about to fall due, would send the notes to Tracy to have payments of interest credited thereon. After

Some time during the summer of 1888- Turner — an ill man, suffering with Bright’s disease — went to the residence of Mrs. Rust, a niece, living in, Fauquier County, Virginia, near Warren ton, where he remained until his death on September 21, 1888. At his death Turner left surviving him a maiden sister, who lived in Frederick, Maryland, Miss Henrietta Turner ; a brother Thomas M. Turner, living in Minden, Louisiana, and various nephews and nieces, children of deceased brothers and sisters.

Between Thomas M. Turner, the brother living in Louisiana,, and Silas II. Turner, it would seem, there had been little or no intercourse for more than thirty years, Thomas having left Virginia when quite a young man. Notified of the serious illness of his brother, Thomas M. Turner, about a month and a half before the death of Silas, came to the house of Mrs. Rust and there remained until the death. Thomas M. Turner had had at that, time quite a varied experience of men and affairs. Leaving Virginia as a youth he went to Memphis, Tennessee,

Omitting reference to the controverted question as to what passed between Silas and Thomas preceding the death of the former, certain it is that after the death of Silas there was found in a trunk belonging to him some few personal effects, the will, which was afterwards probated, and an envelope containing papers — the so-called list set out in the bill and referred to in the report of the auditor and in the opinion of the Court of Appeals.

On September 28, 1888, Thomas M. Turner came to Washington, and in company with Eppa Hunton, Jr., Esq., a member of the Virginia bar, had an interview with Tracy. Whatever' took place at this interview forms, we think, one of the principal controversies of the case, and we shall have occasion

The next day, after the probate of the will, Turner appeared in Washington and'called upon Tracy'. Tracy handed to Turner a list of the notes, cash and other property in his possession, which he proposed to tiirn over as belonging to the estate of Silas H. Turner. Turner took the list and examined it overnight, returned the next morning, received the notes and the additional cash mentioned in the receipt, and' as to a piece of real estate specified in the list received the following certificate from Tracy:

“I hereby certify that I have invested three thousand six hundred dollars ($3,600.00) in ■ ground on Maryland avenue between 9th and 10th streets N.. E., at thirty-five cents per square foot, and that Silas H. Turner is entitled to one-half-of the proceeds derived from the sale of the samé, after deducting the cost of grading, subdividing and examining titles, etc.

“Philip A. -Tracy.”

The entire question of fraud on the part of ’Tracy depends upon the statements of Turner as to what took place between' himself and Tracy when he gave the foregoing receipt, and as to the conduct of the latter concerning the so-called list which

At the suggestion of Tracy the notes covered by Turner’s full receipt were placed in a bank at Washington for collection, Tracy introducing Turner to the bank and assisting him in opening the account. Turner went to Virginia, with some of the cash received paid the funeral expenses and the debts of his brother, took his sister and a niece with him to Louisiana, and from Louisiana he went to Texas, with his family and also with the sister and niéce just referred to. In Texas, Turner .bought a lot in a town called Vernon, boarded his family until he built and furnished a house, bought and partially paid for a ranch consisting of six hundred and forty acres and equipped it with stock and machinery. In the summer of 1890- he brought this entire family to Virginia, leaving his son Erie H., who had then become of age, oh the farm in Texas as manager. He bought, in his own name, a house and lot in Front Royal j Virginia,' the possession of which he turned over to his niece, Mrs. Rust, telling her that it was hers, and that it was done in accordance with directions given before his death by his brother Silas. Whilst in Virginia he visited Washington and saw Tracy. In the fall of 1890 Turner went to Texas, leaving his family in Virginia. lie remained in Texas but a short time, coming back to Virginia either in the late fall of 1890 or early winter of 1891. In February, 1891, he drew on the proceeds of the notes which had been deposited a check for the sum of forty-eight hundred dollars and carried the money away on his person, stating in his testimony that one reason why he did so was that he did not want the heirs in Virginia to know where the property was; that he was trying to keep it concealed as much as he could; that he was .managing his own affairs and did not want anybody to know anything about it, and that he was trying to get the money away from Washington entirely. In April, 1891, Erie H. Turner, the son, left the farm in Texas and came to Virginia. He visited Washington with the father, who introduced him to Tracy. The

From the date of the delivery by Tracy to Turner of the notes to the time.of the payment made to Erie H. Turner, as. just stated, all the notes delivered by Tracy to Turner and deposited to the credit of the latter had beéri paid, principal and interest, except the two which were turned .over to Erie H.' Turner on the álléged settlement with the father. During this time the record shows letters written by Tracy to Turner of a friendly character, advising Turner concerning the progress .of the collections, and suggesting business methods for overcoming difficulties which arose, vdthout the slightest ‘ intimation in any of the letters that there was in Tracy’s mind even an impression of a difference between himself and Turner, or that Tracy supposed that there was any claim against him resulting from the transfer which had been made to Turner on November 30, 1888, except as indicated on the receipt then signed by Turner and the accompanying certificate relative to the Maryland avenue lots.

As the consequence of the settlement made with Erie H. Turner, practically all that remained of the money coming from the proceeds of the notes delivered hy Tracy to Turner had been checked out by Turner, and it is true to say that the record leaves no question that in effect substantially all the family living and 'traveling expenses, the disbursements for the residence lot in Texas, .the cost of the erection and the

Not only during the period whilst the notes were being collected by the bank for the account of Turner and he was drawing out the proceeds — indeed up to shortly before the bringing of this suit — Turner swore that he intentionally concealed from his wife and children, and from everybody concerned, the fact that his brother’s will had been made in favor of the children, or that he had received under that will any property belonging to them. His testimony on this, subject is so vital to the cause that we quote it.

On his direct examination he was interrogated and answered as follows:

“Q. You stated the other day that while you were East ■in the fall of 1888, at the time of your brother’s death, you wrote home to your wife during that absence? A. Yes, sir.

“Q. I want to’ know'whether or not you told your wife in aiiy of your letters of the fact that your brother had left an estate? A. I think I did. I am not positive.

“Q. I want you to state whether or not you told her that he had by his will left the property to your children? A. I did not tell her that.

“Q. Was. that omission intentional or accidental? A. It was intentional, sir.

“Q. After your return to Louisiana, after your brother’s death, when did you and your family leave there? A. We left there in the summer of 1889-

“Q. Up to that time had you told anybody of the character and content^ of your brother’s will? A. No one, sir, except Mr. Hunton.”

On cross-examination the witness testified as follows:’

“Q. Did you within a few days after signing that write to your .wife and tell her that your brother had left his property

to you? A. I don’t think I did, sir. I can’.t say that I did. I have no memory of writing such a thing. I may have written to her that my brother had left property to us. I don’t know what I wrote. It-has been a long time, and I can’t tell you.

“ Q. Did you write to her in such a way as to conceal from her the truth, and intend to do so? A. I didn’t intend that my children should know the property was left to them.

“Q. Why? A. Well, sir, it was my opinion that it would not be well for them to know it.

* * * * * * *

“Q. When did your wife first know the terms of the will of your brother? A. I don’t know, sir.

“ Q. When did .you first communicate to her the fact that. you had obtained the property or the estate of your brother? A. I never communicated it to her, sir.

“Q.' And she never knew it? A. I don’t know whether she knéw it or not, but I never told her.

“Q. Do you know that she did know at any time? A. I can’t tell you, sir. I don’t know that she did.

“Q. Did you intentionally conceal the fact from your wife that you had received the estate of your brother? A. I guess I did, sir, intentionally.

“Q. And never up to the present time have you ever told her that you did receive your brother’s estate? A. Oh, I don’t remember whether I had or not. I couldn’t say positively, sir.

“Q. Have you any knowledge yourself as to the time, or any time before the bringing of this suit, when she knew that you had and had received your brother’s estate? Á. No, sir.

“Q. You cannot say? A. I can’t say.”

Eric H. Turner, the son, after his introduction to Tracy, evidently inquired from Tracy concerning the estate of Silas Turner, and he expressly declares that Tracy then informed him that the property had been left to the children, and also (old him of the investment in his hands arising from the Maryland avenue lots. If is plainly to be inferred that Erie

Thomas M. Turner having exhausted the proceeds of the notes which he had received from Tracy, never again came in personal contact with the latter. He went to Texas, leaving his family in Virginia. In January, 1893, under a power of attorney, he sold the farm near Minden, which he had transferred in 1870 to his wife. The expressed consideration for the sale on behalf of the wife was one thousand dollars. In January, 1894, Turner went to Virginia and took his family back to Texas. In September, 1894, Turner and his wife executed and put of record a deed conveying to Wilmer, Ashby and Lunette Turner the Texas farm, and reciting as the consideration thereof “ the, sum of $6,400 to me in hand paid by Philip A. Tracy, executor of the last will and testament of my deceased brother, Silas H. Turner, in trust for the use and benefit of my children, viz., Wilmer Turner, Ashby Turner and Lunette Turner, minors, which said trust fund together with other similar trust funds was turned over to me without bonds and

“I sold the place, and the consideration was $5,000. There was a deed of trust for $400 on the property, which the purchaser assumed. I owed the purchaser $205. That from the $5,000 left $4,395. I paid $200 in debts from that, which left $4,195. Í owed my wife her home in Louisiana that I sold in 1893,1 believe $1,000, and eight years’ interest at 10 per cent, which is the legal rate in Texas. That made $1,800. I used of my wife’s individual money, about the year 1870, $200. Interest on that to the present time would make altogether $680. That would be $2,480 that I paid my wife, that was due her. That left $1,715; I owe about $100 in small debts, there that I will have to pay out of that, which would leave' $1,615 now that is community property between myself and my wife. According to the laws of Texas she would be entitled to half of it and. I half. I have that much in money.”

Explaining why he appropriated for his own and his wife’s benefit the proceeds of the sale, to pay his alleged debt, despite the conveyance of the farm previously made by himself and wife to the minor children, Turner declared that while it was the same farm yet that it had become forfeited to the State and he had reacquired it and regarded it as community property belonging to himself and his wife, although the money which had been originally used in buying and improving the farm had come from the proceeds of the estate of his brother and belonged to. the children.

With these facts in mind we come more directly to consider the fraud alleged to have been committed by Tracy at the time he made the transfer of property and took the -receipt of Thomas M. Turner. The principal ground upon which the auditor and both courts below rested their conclusion- that Tracy had been guilty of such fraud was a discrepancy which it was assumed existed between a so-called list in Tracy’s handwriting of notes in his hands,-which list had been found

So far as the face of these sepárate sheets as they stood at the death of Silas H. Turner indicate, they do not at all exclude the implication that the items on the second sheet were but the statement of reinvestments made by Tracy of money coming into his hands as the result of the payment to him of notes which were enumerated on the first sheet. Nor on the face of the papers docs the fact that an envelope was- produced with the words in the handwriting of Tracy written thereon “Notes belonging to S. H. Turner, 1888,” necessarily give rise to a contrary deduction. For, no.n constat but that this envelope was marked by Tracy on delivering to Silas

It is insisted that as Thomas M. Turner testified that he exhibited the two sheets as one paper to Tracy, and that Tracy told him that he had all of the notes described on both of the sheets in his possession and that they were “as good as gold,”- therefore the sheets were proven to be one and the liability of the estate of Tracy to account on that hypothesis was established. But in view of the state of the uncontroverted proof which we have previously noticed concerning Turner and his acts of omission and commission, we are constrained to the conclusion that he has so discredited himself as to make it impossible for us to accept his uncorroborated statements as establishing the alleged fraud and dishonesty of Tracy; although in reaching this conclusion we do not exclude the possibility that Turner may have harbored a suspicion that Tracy had not fully accounted, and communicated his suspicions to others. And even' putting out of view the acts of commission and omission of Turner and the consequent inability to rely upon his testimony as to the commission by Tracy of the alleged fraud, the unexplained failure of the complainants to make certain proof, and the proof as made, clearly demonstrate that Tracy could not have been guilty of the fraud charged against him, and we under separate headings state our reasons for this conclusion.

1. The interview between Tracy and Turner, at which the alleged admission by Tracy was made concerning the list and his possession of all the notes shown on the two sheets, was .the one had a week after the death of Silas H: Turner, at which Thomas M. Turner testifies that iyir. Hunton, his counsel, was present and heard the alleged statement made by Tracy. Yet

Moreover, a comparison of the receipt with the two sheets supports the conviction that the second sheet was but a statement of reinvestments, and therefore that it was impossible that Tracy should have admitted that he was in fact stealing from or denying his liability to the estate of his dead friend in respect to the sum which he was either actually paying over or admitting his responsibility for. Now, the receipt embraced all of the notes mentioned on the second sheet, aggregating $4,850. It embraced certain notes found on the first sheet, aggregating $11,600. The receipt also embraced notes not appearing on the first sheet — in other words, replacing those omitted (and included the Maryland avenue lots)— indicating by their dates that they were acquired after the date of the last investment appearing on the second sheet of the list, viz., March 12, 1888, and after April 30, 1888, when Silas Turner was in the office of Tracy and made his will. These last items aggregated $8,152.50. The total of the various items footed up $24,602.50. Now, this sum was slightly in excess of the notes shown on the first of the two sheets of thé so-called list, going to demonstrate that the settlement between the parties was based, not upon any deduction of an impossible sum of six thousand dollars, but upon the fact that the second sheet represented reinvestments of items appearing on the first sheet. And the cogency of this conclusion becomes manifest when it is considered that there is not an iota of evidence tending to show where Tracy could have gotten the money to invest in the notes which he turned over, acquired after March 12, 1888, unless it was from collections of the notes appearing on the first sheet of the so-called list, which, in consequence of their payment, were represented in the receipt by the new investments.

3. That at the time the receipt was given there was some

4. As we have said in stating the uncontroverted facts, Turner came from Louisiana to the house of Mrs. Rust, where his brother Silas was lying dangerously ill, about a month and a half before the death of Silas. The proof leaves no doubt that whilst there he frequently met his niece, Mrs. Rust, and other Virginia relatives, and had ample occasion to be aware of their frame of mind.' There is no proof whatever showing that Tracy, whose home was in Washington, had any connec- ' tion whatever with the Virginia relatives of Silas Turner, or was in a position to form an opinion concerning the probable conduct of those relatives as to a contest of the will of Silas Turner. And yet Turner swears that one of the principal causes of his yielding to the fraud of Tracy was the danger which (Tracy persuaded Turner would arise in consequence of the purpose of the Virginia relatives to contest the will. Further, although the first interview bétween Tracy and Turner after the death of Silas was on September 28, 1888, the settlement between Turner and Tracy was not had until more than two months thereafter, viz., November 30, 1888. Now the only explanation Turner gives for this delay is that Tracy told him at the interview on September 28,1888, that he was about to absent himself on a two weeks’ leave and upon his return would inform Turner and they would have a settlement, a reason wholly inadequate to explain the long delay between that and the next meeting. That Tracy expected to. make a settlement and desired to keep in touch with Turner is shown by a letter written to Turner on October 10, 1888, from Old Point Comfort, advising' Turner of his (Tracy’s) whereabouts. Several of the Virginia relatives who were in contact with Turner during the considerable interval which elapsed between the first visit of Turner to Tracy and the final settlement testified to statements made in their presence by Turner, that he was awaiting the necessary papers from Louisiana showing his authority to represent his children, and that just before Turner

“Tracy then informed me that as my brother owed no debts there was no use to have an administration; that he would not qualify as executor of the will, and that I need not delay to be appointed guardian for my children; that he would turn the notes over to me and I could place them in bank to be collected as they matured.”

True it is that Turner testified that the' words which he affixed to his name in signing the receipt describing his representative capacity, viz., “Natural tutor and agent for my minor children,” were dictated by Tracy, but in view of the probable ignorance of Tracy of the Louisiana law and the experience and familiarity which Turner possessed on that subject, the statement cannot be áecepted as true.

Considering all the evidence, .our conclusion is that the proof not only completely fails to establish the commission of fraud or wrong by Tracy, but that on the contrary it clearly shows honesty and fair dealing on his part. Indeed, so far as concerns the transfer of property made to Thomas M. Turner without provoking an administration either in Virginia or in the District of Columbia, whatever may be its legal consequence, which we shall hereafter consider, we think the clear preponderance of the proof gives rise to the inference that that payment was made without administration because of Tracy’s' knowledge that there were no debts and because of the representations made by Turner that he was entitled under the law of Louisiana to receive the transfer on behalf of his minor children, and that if it were not made to him without legal proceedings there would be much unnecessary expense resulting

This brings us to consider the proposition of law whether the payment by Tracy to Thomas' M. Turner, as the representative of .his children, was adequate to prevent the estate of Tracy from being compelled to pay a second time.

It is undoubted that at the time of Silas H. Turner’s death the children who wefe-the beneficiaries under his will were minors and were domiciled with their father and mother, who were both alive and residing in the State of Louisiana. It is at once conceded that under the law of Louisiana a father or mother entitled to qualify as natural tutor (guardian) must be recognized by a court, and as a condition precedent to such recognition must have complied with the requirements»: of the law. Under the law of Louisiana such precedent requirements are the taking of the inventory, the recording of an abstract thereof and an oath of office. As it is established that Thomas M. Turner performed none of these requirements and was never recognized by a court as the natural tutor of his children, it is insisted that he was wholly without power to represent them or to receive.the bequests made to them by the will of Silas H. Turner. But the proposition is inapposite and is based upon a misconception of the law of Louisiana resulting from the assumption that .under that law the rules governing the qualification and appointment of natural tutors after the death of one of the spouses applies to the case of a father during marriage representing and acting for and on behalf of his minor children.

In the Civil Code of Louisiana ©f 1870, title 7, chapter 5, treating of father and child, it is provided as follows:

“Art. 221. The father' is, during the marriage, administrator of the estate of his minor children.

“He is accountable, both for the property and revenues of the estates, the use of which he is not entitled to by law, and for the property only of the estates, the usufruct of which the law gives him.

“This administration ceases at the time of the majority or emancipation of the children.”

And in the same title and chapter it is further provided:

“Art. 223. Fathers and mothers shall have, during marriage, the enjoyment of the estate of their children until their majority or emancipation.”

Moreover, in the same chapter, it is also provided:

“Art. 226. This usufruct shall not extend to any estate, which the children may acquire by their own labor and industry, nor to such estate as is given or left them under the. express condition that the father and mother shall not enjoy such usufruct.”

These provisions of the Code of 1870 have obtained in that State from an early date. The first of them was in the Code of 1825 as article 267., under the title treating of minors and their tutorship, and under -the same title the ■ provision was contained in the Code of 1808 in section 2 of Title 8, article 5. And as the inevitable result of these provisions of. the code it has long been settled in Louisiana that the plenary power of the father as administrator, during marriage, of'the estate of his minor children, born of the marriage, was wholly distinct from tutorship, did not' depend upon previous judicial recognition, and was not subjected to the precedent requirements essential to give rise to tutorship. In Cleveland, Tutrix, v. Sprowl, Administrator (1845), 12 Rob. 172 , the court said (p. 173):

“Now, it is well known, that no tutorship exists, during the marriage, over the children issued- from it, but that a child remains under the authority of his father and mother until his majority or emancipation. Civ. Code, Art. 234. The father is, during the marriage, administrator of the estate of his minor children; he is accountable both for the property and revenues of the estates, the use of which.he is not entitled' to by law, and for the property only of the estates, the usufruct of which the law gives him; and such administration ceases at the time of the majority or emancipation of the

children. Art. 267. The natural tutorship only takes place after the dissolution of the marriage, by the death of either of the spouses, and belongs of right to the surviving one. Art. 268. Thus it is clear, that the legal mortgage resulting from the tutorship, is not applicable to the administration of the minor’s property, given by law to the .father, during the marriage. He is not a tutor; his duties and responsibilities are very different; and the law does not appear to have intended, that while the minor’s estate remains under his father’s administration during the marriage, his child should have a legal mortgage upon his father’s property, as a security for the said administration.”

As a result, it was expressly decided that neither the legal mortgage resulting from tutorship nor the security generally required by law from usufructuaries were applicable to a father as administrator of the estates of his minor children diming the marriage. Our attention has not been called to nor. have we been able to find any decision of the Supreme Court of Louisiana modifying in the slightest degree the principles thus announced. On the contrary, in Gates v. Renfroe (1852), 7 La. Ann. 569 , whilst the subject was nots directly at issue, the court in its opinion assumed the law of Louisiana concerning the power of the father in administering the estates of his minor children, as previously stated, to be elementary.

It is certain that the article relating to the power of the father to administer during marriage,' which was originally enacted in the Code of 1808, was drawn from the Code Napoleon. We say this is certain, because not only did the article as enacted in the Codes of 1808 and 1825 exist in the Code Napoleon in absolutely identical words, but it was also in that code placed, as it was in the two earlier Louisiana codes, under the heading of minors and their tutorship. Code Napoleon, Art. 389.

The fact that the provision should more properly have been . classed under the chapter of the code treating of paternal

“It is evident that this article appropriately belongs to the title treating of paternal power, because during the marriage tutorship does not exist. It is alone in virtue of the paternal power that the father (or the mother in the case of the father’s incapacity) is charged with the administration of the goods belonging to his minor children.”

The same commentator thus expounds the spirit of the article (lb. No. 415):

“ During the marriage the father and the mother are present and cooperating with each other, consulting with each other, supervising as it were each other with that instinctive tenderness which is the result of their relation to their- offspring. This the law assumes to be an assured and certain security for the children founded at the same time upon both paternal and conjugal affection, of which the children are the pledge,. and of which they are the most potent links for the perpetuation of the union. . . , Let us add that the conflicts between interests of the children and those of the parent which often arise from the death of one of the parents do not usually exist whilst both the parents are alive. These are the family considerations upon which the article is founded, and tradition plainly confirms them. Thus in our ancient jurisprudence the distinction between the legal administration of a father and tutorship was well established. The first rested upon an agency created by law alone, based upon the confidence which the law reposed in paternal affection, from which it resulted that the powers of administration given to the father were broader and more comprehensive than those which the law conferred upon a tutor. (Comp. Merlin, Rep. VII, V Légitime Administration; Coquille, sur l’art 2, de la Coutume de Nivernais, de Lauriére sur Loisel Inst. Cout. livre 1, titre IV, régle 1.)”

And when the genesis of the enactment which passed from the Napoleon Code into the codes of Louisiana is considered the accuracy of the observations of the commentator just cited

“We think that the first article of the. chapter should express in precise terms what during the marriage should be the -authority of the father over the personal goods„of his minor children. . . . Never up to this time has it been exacted that a father should be obliged to qualify as the tutor of his children before the dissolution of the marriage. If while the marriage exist the law did not make a distinction between the father and mother and a .tutor in the proper sense of the word, it would follow that the father would be as to the personal goods of his minor children subjected during marriage to all the conditions and burdens which the law imposes upon a tutor. The father would then be. as to his minor children under the supervision of an under tutor, would depend upon the advice of a family meeting, etc., etc., all of which would be repugnant to the accepted conceptions of paternal authority. It seems fitting that up to the dissolution of marriage the only title which the father should have is that of administrator, and it is for this reason that we recommend the adoption of the article.”

And the views which were thus expounded have been substantially applied by the decided eases in France,, and are concurred in by the practically unanimous opinion of the theoretical writers. The result of.those decisions and .the opinions of the writers on the subject adequately portray the plenary power conferred upon the father as the administrator of all the property of his minor children during marriage and the distinction' between that authority and the narrower power as’ to the natural, tutorship arising only, after the dissolution of the marriage. The authorities will be found exhaustively' collected in the notes to article 389 of the Napoleon Code in

Much reliance in argument is placed upon the terms of article'3350 of the Louisiana Code of 1870, which reads as follows:

“Art. 3350. Before fathers and mothers, who by law are entitled to the usufruct of property belonging to their minor children, shall be allowed to take possession of such property and enjoy the fruits and revenues thereof, they shall cause an inventory and appraisement to be made of such property, and cause the same to be recorded in the mortgage book of every parish in the State where they or either of them have immovable property.”

This article was not contained in any of the previous codes. Its origin is this: Prior to the Louisiana Constitution of 1868 the moneyed obligations of natural tutors towards their minor children, of husbands to their wives, and some other pecuniary obligations expressly provided for by law, were secured by what was known to the Louisiana law as legal and tacit mortgages. Those mortgages existed- by operation of law and without registry. No such provision, however, ever obtained, as we have seen, concerning a father administering upon the estate of his minor children during the marriage. The Louisiana constitution of 1868 (art. 123), provided that all legal, tacit mortgages should cease after a specified date, and expressly imposed upon the legislature the duty of providing by law for a mode of registry in order-to preserve existing and future mortgages of that character. By an act passed' in 1869, entitled an act to carry out this article of the constitution and “to provide for recording all mortgages and privileges,” the legislature sought to comply with this constitutional direction. Acts La. 1869, p. 114. . The act in question contained specific directions for recording mortgages of the character referred to, the mode of registry which was adopted as to these mortgages being the making of an abstract of an inventory showing the amount of the minor’s property, and the putting of the same of record: Section 12, the last section

As then by the law of their domicil the minors were rep- ■ resented by their father as administrator,'with full power under . that law to receipt for and administer the property for their account, was the transfer of .property made by Tracy in the District of Columbia to Thomas M. Turner, as the administrator or representative of his-minor children, valid and binding? It is said that it was not because Turner, the testator, was domiciled in Virginia, and if the property had been administered upon in that- jurisdiction, never mind what was the power of the father, under the law of Louisiana he would not have been entitled to receive or remove the.property from the jurisdiction without'an order made by a Virigina court and upon the giving of satisfactory, security. But the property in question was in the District .of Columbia, and in the absence of all showing that there were creditors in Virginia, the Probate Court of the District of Columbia would have had power under the circumstances disclosed, if administration had been had in the District, to direct the delivery of the property to the person lawfully entitled to represent the minors, without compelling the transmission of the funds to Virginia. Under these circumstances, we are of opinion that the payment in the District of Columbia to the father of the complainants as administrator of their estate, fully empowered to collect and

“Tracy himself wrote the will; and he said that he had suggested to uncle to, leave it to my father, and if I remember,

his answer was no, he would spend it, or something like that; and then he suggested that he leave it to his children, and that idea suited uncle, and he wrote the will.”

We shall not stop to point out the conflict between this statement made by Erie Turner and the intimate and friendly relations as exhibited by his correspondence, continuing almost up to the time of the death of Tracy, or the conflict between the statements and the various parts of his testimony and his letters. We do not pause to do these things, because in our opinion the proof introduced by both parties beyond question establishes that Silas H. Turner entertained no such feeling towards his brother as the' quoted testimony of Erie Turner implies. Thus the complainants’ own proof showed that Thomas M. Turner was summoned to the bedside of his dying brother and there remained for a month and a half; that during that time he was in constant and close relation with the brother, without the slightest intimation of any want of confidence between them. On the contrary, Thomas M. Turner made repeated statements and declaration in the course of his testimony, to the effect that his brother referred to the will, and informed him that , he expected him to administer the property, etc. That Tracy regarded Thomas M. Turner as honest is demonstrated by his whole course of conduct, and •is illustrated by his allusions to Thomas M. Turner in the memorandum which he left for-the information of his executors.

The receipt being binding, the only question remaining for consideration is whether any liability rests upon the estate of •Tracy growing out of the investment in real estate referred to therein. • From an inspection of the receipt it will be seen that that subject was thus described: Lots on Maryland avenue N. E. $1,800; and as we have also previously stated at the time of the giving of the receipt Tracy delivered to Thomas M. Turner a certificate, which we have heretofore reproduced,” and which, as we have said, Turner subsequently turned over to his son Erie.

The decree of the Court of Appeals is reversed and the cause is Remanded with directions to réverse the decree of the Supreme Court of the District of Columbia and to remand the cause to that court with directions to enter a decree in conformity with this opinion. The costs in this court as well as in both the courts below are to be paid by the complainants and before distribution of the sum for which the estate of Tracy is held accountable.

Mr. Justice Brown took no part in the consideration and decision of this case.