
    A. Miltenberger v. J. P. Elam, Tutor, et als.
    Tutors have by law the administration of the estates of their pupils, but their powers of administration do not embrace an authority to contract debts. Any one who deals with a tutor, at least any one who lends or advances money to a tutor for account of his ward or pays drafts, exceeding the funds in his hands to their credit, unless said tutor acts within the limits of a previous legal sanction, does so at his peril. The minors being under an absolute disability, it is incumbent on the party who seeks to recover from them, to show, that their indebtedness was contracted in accordance with the specified legal proceedings, or that the consideration of the indebtedness inured to their advantage, to the extent claimed.
    APPEAL from the District Court of the parish of Catahoula, Barry, J.
    
      Taliaferro and McGuire & Bay, for plaintiff and appellant. Mayo, for defendants.
   Lea, J.

The plaintiff sues for a balance alleged to be due to him on a running account between himself, as a commission merchant and factor, and Samuel Glenn, the former tutor of the defendants, who at the time were minors. In 1847, Samuel Glenn was appointed tutor to the defendants, and acted as such until his decease in June, 1852. The property of the minors consisted of a plantation and slaves, which the tutor continued to work on their account.

In 1861, he opened an account with the plaintiff, which was not closed at the time of his death.

This account contains items for drafts accepted and paid,, cash advanced, plantation supplies furnished, interest, commissions, &c.

After the death of the tutor, in consequence of a contest for the new tutorship, Levi Morris was appointed provisional administrator of the estate, and shipped the crop of 1852, part of it to the plaintiff, and the remainder elsewhere. .

It is contended on !the part of the defendants, that when Glenn was appointed tutor, the estate was but little in debt; that he squandered the revenues of the minors, and contracted debts without any necessity therefor, and without legal authority to an amount exceeding $20,000, for which they are in no manner bound ; that at the time Glenn was their tutor, he had the management of three or four separate plantations, two of which were in the vicinity of the Elam plantation, and that he had a large family of his own to support,; that a large portion of the supplies were furnished for said Glenn's individual use, or for the use of the other plantations under his control, and for his family and friends, and that .a large amount of the supplies were neither needed nor used on the plantation of the defendants-; and lastly, that of the account, as made up, a large portion is for illegal, compound, and usurious interest, and illegal charges.

The general principles by which the rights of the parties must be determined, we consider as well settled. Those who contract with the representatives of minors, know that those with whom they deal, are acting in a fiduciary capacity, and moreover, that they are acting on behalf of those who are by the law deemed incapable of acting for themselves. Tutors have, by the law, the administration of the estates of their pupils, but the powers of administration do not embrace an authority to contract debts. This is not left to inference, the prohibition is absolute,

“ The tutor cannot borrow for the minor, without an authority from the Judge, granted on the advice of a meeting of the family,” The object of the law is manifest; it was intended to prohibit the tutor from doing precisely what it is contended in this case that he had a right to do, to wit, to embarrass the estate of the minors with debts, thus practically alienating it. Any one who deals with a tutor therefore, at least any one who lends or advances money to a tutor for account of his ward, or pay, drafts exceeding the funds actually in hand to tbeir credit, unless said tutor acts within the limits of a previous legal sanction, does so at his peril. The minors being under an absolute disability to contract, it is incumbent upon the party who seeks to recover from them to show that the indebtedness was contracted in accordanee with the specified legal proceedings, or that the consideration of the indebtedness inured to their advantage, to the extent claimed. To recognize the doctrine contended for by the plaintiff rs counsel, would place the estate of every minor entirely at the disposal of a corrupt or even an impr evident tutor. The law has wisely provided against any such result.

It is unnecessary to inquire whether the plaintiff was or was not wrong in placing the proceeds of the shipment made by Morris to the account of the minors as contracted by Glenn. If the plaintiff has a good and valid claim against the minors, sufficient to absorb the proceeds of that shipment, he is entitled to a judgment in his favor.

The only question then is one of fact. To what extent has the plaintiff advanced money, or furnished supplies, which are shown to have inured to the advantage of the minors ; and after crediting him with such sum, what balance exists in his favor or aginst him ?

The plaintiff is chargeable with the nett proceeds of sales of cotton amounting in all to $16,114 41, including the proceeds of the shipment made by Morris.

The evidence shows that the drafts given to Emerson, to Buchanan, Carroll & Co. and to Mrs. Thomas, amounting in all to $4324 2S,were justly chargeable to the estate, having been given in liquidation of actual liabilities due by the succession; nor is there any dispute about the supplies furnished by the plaintiff after Morris had charge of the place, these amounted in all to $739 22, making, with the undisputed drafts, an aggregate credit of $5063 47. The remainder of the items in plaintiff’s account are disputed. The plaintiff’s claim, if allowed, would not only absorb the entire proceeds, amounting as above stated to $16,114 91, but would leave the defendants indebted to the plaintiff in the sum of $3520 47 ; an indebtedness growing out of transactions covering a space of less than two years. The very nature and extent of the transactions were sufficient to put a prudent person upon inquiry, especially when it is considered that they were all based, as is alleged by counsel, upon the supposed ultimate liahili ty. of minors.

It is manifest, that under the pleadings and evidence, the minors can be held responsible only for such advances as were spent in liquidating debts actually due by them, and such supplies as are shown to have enured to their advantage. • A reference to the evidence shows that the tutor Glenn mixed up the monied transactions on behalf of the minors with his own, and sometimes with those of his neighbors, in such a manner as to make it impossible to distinguish between them with any certainty. The evidence is altogether too vague and uncertain to maintain a judgment for any specific amounts, except those above referred to.

The District Judge has allowed to the plaintiff a credit upon the disputed items for supplies and advances, amounting to $4255; of what items this aggre. gate is made up we are not informed, but it exceeds any amount which we consider to be established by tbe evidence, and is perhaps based upon what may be considered an approximative and equitable estimate of the amount of supplies probably needed on a plantation such as that of the minors during the period of time in which Glenn was tutor.

The defendants have acquiesced in the judgment of the District Court, and nothing in the evidence would justify us in raalring any change in favor of the plaintiff.

Judgment affirmed.  