
    No. 952.
    In the Matter of the Succession of Mrs. Thomas Peniston.
    Where the executor of a deceased tutor, under the order of the Court, files an account of the tutorship, he must show that the estate of the minor has been managed with a scrupulous regard for his interests. The casualty, by which the litigants have been deprived of written evidence, does not dispense them from the necessity of supplying it, as far as possible, by secondary evidence.
    A PPEAL from the Second District Court of New Orleans, Thomas, J,
    
      Roselius & Philips, for appellant.
    
      G, Puf our, for appellee.
    
      Brief of Roselius <& Philips, for appellcmi.
    
    -^-Tlhe presumption of law existing in favor of accounts of administration rendered, etc., and which will no doubt be invoked by the appellee, has no application here.
    Eor, besides the fact, that no regular account of tutorship was ever filed, but simply a small yellow book containing- one entry of debit, and one entry of credit for each year, (these yearly entries purporting to be an addition of the so-called vouchers, which were tied in separate packages, and together with the yellow book constituting the whole exhibit,) the book having been written by Hugh Madden, and the vouchers selected by him from a large lot sent to his office by the deceased in 1860, it appears “he picked up such of the papers and vouchers that he, witness, considered had reference to the succession, and rejected those that did not.”
    Wo do not know what justification there was in his selection, how his judgment was guided in this regard, or what constituted his basis of discrimination, except that Dr. Peniston gave him instructions as to which succession the different vouchers had reference to; and while he throws no light on this subject, and does not explain the nature or character of any of these vouchers, he does say, that as “auditor, he found that a great many of those vouchers bore no evidence upon their face of being-connected with either of these successions.”
    Grandmont, the other auditor, says, that as auditor, he examined the vouchers, and that some of them “had reference to the succession of Mrs. Avart, some of them to the succession of Mrs. Peniston, and some oí them to the succession of Dr. Peniston, and some of the vouchors had no reference at all to these successions. He has no recollection of the vouchers; there were some tax receipts on the property of Dr. Peniston, but these were neglected; and there were vouchers there for repairs done on property belonging to Dr. Peniston, but they were very few; there were a certain number of vouchers which had no relation to the interest of the minor. He remembers two mortgage notes, drawn by Dr. Peniston to his own order; x>resumos that they were mortgage notes, because they were j)araxDhed, and which x>uiported to have been paid in bank; as far as he recollects, he did not find a x>roof that these two notes had any reference to the account of tutorshix>,” etc. And C. Dufour says, the counsel for appellee, testifies: “ Do not know if the summary of the debts was correct or not, and took for granted that Dr. Peniston had charged correctly.” The yellow book was in Mr. Hugh Madden’s handwriting, the doctor’s notary. “The yellow book was headed, but not signed; there were several headings in the yellow book, all by the same penman.
    And again, Yoisin says: “ I think the average rent of the property was between six and eight hundred dollars per month.” “I knew no one, as I said before, but Dr. Peniston, being informed that all the property in this parish, except Camp street property, belongs to the minor.” The last fact is conceded. The inventories on file establish that all the property mentioned in this parish belongs to the minor, except the Camp street house. “Witness has never collected any rents from said Camp street property.” And yet, Grandmont, one of the auditors, says, “that about twelve hundred dollars a year was credited to the minor, in this account, but the same was increased every year to about sixteen hundred to eighteen hundred dollars.” A very liberal margin, to say the least of it, between twelve, sixteen and eighteen hundred dollars a year, and six to eight hundred dollars per month.
    The testimony of the auditors, Grandmont and Madden, throughout, as well as every circumstance in the record bearing upon this so-called account of tutorship, shows it to be a mere heterogenous -collection of desultory receipts, placed in x>ackages with the' single regard to contemporaneous date, and with no reference whatever to their connection with the tutorship. There is really no proof before the Court to support the account, except the statement of Yoisin, during his limited agency; beyond this, the Court will no doubt be told that the law will presume that the account is correct, until it is contradicted by proof.
    While the law, as heretofore interpreted in Louisiana, considers payments made in course of administration as prima facie correct, this principle has only been carried to the extent of contests on accounts which had been previously regularly submitted to the Court, and after due publication, etc., approved and homologated. Succession of Tucker, 13 An. 464; 7 An. 175; 3 R. 286. It has never been extended to a case similar to the one now before the Court. Eor the present purports to be an account of tutorship, embracing a period of eighteen years; no previous account or accounts having been submitted during that long period of time, as might have been done by the tutor in his own protection, under the act of 1855; -which previous accounts being duly homologated, Would have constituted prima facie evidence of their contents, as is expressly set forth in. the statute itself. But, da son tori, he neglected during his lifetime to pursue that course of conduct, which would have afforded him ample protection, and which it was his duty to his minor child to adopt. And now, with every indication of a studied neglect staring out from nearly every page of the record, his representative seeks the benefit of a legal presumption, only established in favor of vigilance and good faith.
    And even, supposing for argument, that the appellee is entitled to tho benefit of this presumption, wo do not know how it can be practically applied by the Court. There is no account of tutorship before the Court. The yellow book and vouchers are burnt. There is nothing left but tho general summary made by his counsel, C. Dufour, Esq., and ho simply carried down balances which he took for granted were correct, and sought to introduce a little classification and system into what was chaotic and confused. There is nothing to stand upon. No facts upon which to base any presumption, except those furnished by the account of opposition, and the moment tho Court goes beyond this, and the evidence adduced under it, everything is confusion. If a regular account had been furnished, no doubt a copy would have been reserved—the executor reserved a copy of his own account, as did also Mr. Dufour of his—and then tho Court at least would have been able to see in what consisted the charges, which it is now' called upon by the appellees to recognize as correct, without knowing anything about them. It will surely bo stretching a presumption too far, to ask for its application in this case, where certain figures, called the sum total of various transactions are alone given, and we are without any knowledge of how this sum dotal is arrived at, or of the current transactions which make up the same.
    And when it is further known that the yellow book and vouchers accompanying it, and dignified by the name of account of tutorship, had few of the essential elements of such an account; that it was written, and the so-called vouchers gathered together by a total stranger, who was in no manner connected with tho transactions which he sought to record, who merely gathered the vouchers from loose and floating papers contained in a newspaper bundle, rejecting or selecting such as his untutored discrimination suggested; that it does not appear that this so-called account ever met the approbation of the tutor; that he ever signified his assent to the same, either orally or in writing, or identified these papers as his own account of tutorship; but that tho samo were simply and only found in his x>ossession after his death; that at the same time the tutor administered on the succession of Mrs. Avart and Mrs. Penision, and the property of his minor son; that his altar ago mixed up and doubled charges and items of debit belonging to the two first successions, with the matters of the minor; that there were acknowledged double charges against tho minor, to exceeding five thousand dollars in amount, which were erroneous; that the showing was unreliable, erroneous, and made up principally of vouchers, which, on their face, had apparently no connection with the matter of tho tutorship, and in favor of which no explanation w'as offered. When all these things are known, we are utterly unable to see on what principle of law or equity the presumption of the law can be invoked, or its application allowed by the Court.
    
      If all these considerations are not snfficient to show how inapplicable this presumption, established in favor of vigilance and good faith is to this case, then the broad and indisputable proof which has been adduced on the opposition, and to which the Court has been already referred, contradicting the so-called account of tutorship, and establishing the claims of the opponent, not only disputes the presumption, but makes out a positive showing in favor of the appellant.
    Our learned adversary, as well as the District Judge, considered this a fit occasion to read the opponent a moral lecture on the sacred duty of honor and respect which is due by the child to the parent.
    His honor, the District Judge, winds up h:.s opinion by observing that “ there is a consolation in the thought, that if there be any error in the conclusion to which I have arrived in this matter, no real distress can bo given the opponent, and that perhaps it may cause him to entertain a better opinion of his deceased father.”
    If the conclusion of the District Court Judge had been based on the facts found in the record, and the law applicable to them, there would bo some force in the observation.
    But we have already abundantly shown that the conclusion is founded on neither the one nor the other. It is certainly a- novel idea that it is of no great moment, whether a party loses a hundred and forty odd thousand dollars through the inattention or ignorance of a judge, provided he is not reduced thereby to absolute poverty and distress.
    The opponent and his counsel are well aware of the delicate position which they occupy, and have endeavored, as far as possible, to avoid saying anything that was not strictly necessary for the assertion and vindication of his right to his patrimony, which is sought to be wrested from him in this litigation.
    We will barely refer to the testimony of Judge Duplantier, found at page 157 el seq. of the record.
    
      Brief of Cyprien Bufour, for Appellee.
    -—Shortly after the death of Thomas Peniston, his son, Joseph Allard Peniston, claimed his emancipation, and obtained it. 'He then entered a rule against the executor of his deceased father for an acco'unt of tutorship, and the following order was issued:
    “Let Joseph Lallande, testamentary executor of Thomas Peniston, be ordered to file an account of tutorship to the petitioner, duo by Thomas Peniston, deceased, as natural tutor, within the legal delay. ”
    The tutorship embraced a period of nearly eighteen years. The executor knew nothing of this administration; of course, it was impossible for him to render upon his own responsibility the account required. But it is in evidence that the deceased, within a short year before his death, and no doubt in view of his approaching dissolution, had prepared and liquidated his accounts with his son, and for more accuracy had handed over all his vouchers to his notary, and had given him his instructions, so that the whole might be arranged with some system. This account, and the vouchers, were found at the late domicile of the deceased, and are thus described in the inventory:
    “An account boofe found aprongthe effects of said deceased, containing accounts of the deceased, with the estates and successions of Mad. Peniston and Mad. Avart, both deceased.”
    “Eighteen packages of receipts or vouchers, from the years 1845 to 1S62, both inclusive, having reference to and being a part of the account of said deceased, with the succession and estate of Mad. Peniston, hereinbefore inventoried.” “ Eight packages of receipts or vouchers, from 1855 to 1862, both inclusive, having reference to and being a part of the account of the deceased, with the succession and estate of Mad. Avart, hereinbefore inventoried.”
    These were naturally presented to the Court, as the accounts prepared by the tutor himself, with an addition by the executor, comprising the short interval which passed from the closing of those accounts until the death of the deceased.
    An opposition having been filed in the name of Joseph Allard Peniston, the matter was referred to auditors. These auditors withdrew from Court all papers having any connection with the tutorship. They took away the accounts and vouchers drawn up by the late tutor, the additional account of the executor with accompanying receipts, the mortuary proceedings in the succession of Mad. Peniston, and those in the succession of Mad. Avart; and whilst in their possession, a fire occurred in the office of Mr. Madden, and the whole was destroyed.
    After this deplorable accident, the opponent entered a new rule, claiming that “Joseph Lallando, testamentary executor of the last will of Thomas Peniston, natural tutor of his son, do show cause why he should not file another account of the tutorship of said Thomas Peniston, of the affairs of said appearer during his minority, in lieu and stead of the account of tutorship, so lost and destroyed as aforesaid, and also supply, by copies from his possession or to be iirocured, as far as possible, the original papers lost and destroyed as aforesaid; or in default thereof, why the opponent should not have judgment in his favor against said Thomas Peniston, deceased, as set forth in his opposition to said tutor’s account.”
    The executor, in his answer, referred to the original order, calling upon him to file the account of tutorship, and said: “That from personal knowledge he was unable to comply with such an order, but having found among the papers of the deceased a full account of said tutorship, with accompanying vouchers, prepared from year to year, until the first day of January, 1863, he presented the whole to the Oourt, together with an additional account prepared by himself, by means of such vouchers as he could find, and running from the said 1st of January, 1863, to the month of February, 1864, about three months after the death of the said late tutor, when his minor son obtained a decree dispensing him with the age of majority. And both these accounts were supported and justified by vouchers marked and classed under proper headings, and filed into Court, in compliance with the application of the said Joseph Allard Peniston. That he has kept no copy either of the account itself dr of the accompanying vouchers; but in the private record of his counsel, he has found the original draft of the report he made touching the accounts of the deceased, ending the 1st of January, 1863, which he producesinto Court in the same condition it was found. And he furnishes a copy of the additional account presented by him, and covering the remainder of said tutorship until the month of February, 1864, which copy he has prepared from his own notes and memorandum.”
    The precision and method, with which the accounts were prepared by the tutor, forbid' all idea of looseness or carelessness on his part. There was a separate account, with regard to the succession of Mrs. Avart, of whom the opponent was universal legatee. This estate consisted in slaves and vacant lands in the parish of Jefferson. The whole was sold, and the proceeds carried to the credit side. This fund was debited by the amount of all administrative and judicial expenditures incurred by the estate itself.
    There was another account entitled: ‘ ‘ Succession of Madame Peniston. ” This estate consisted altogether in improved property situated in the city of New Orleans. The account showed on one side the amount of revenues collected, and the other comprised the payment of taxes, insurance, repairs, and price paid on building contracts. There was an item of about four thousand dollars for a sumptuous tomb, erected to the memory of the mother of the opponent. All general disbursements were charged to this estate.
    The first account exhibited a balance in favor of the minor
    of...................................................§101,941 99
    The second account gave a balance in favor of the tutor of... 31,038 69
    Net balance in favor of minor............................. 70,903 30
    The additional account prepared by the executor himself
    showed a balance against the minor of................. 6,767 99
    Definitive balance in favor of the minor.................... 64,135 31
    The manner in which the accounts were prepared is thus described by the notary: “ Witness is a notary public for five years, and previous to that time he was in the office of Ricardo. He was personally acquainted with the late Dr. Peniston; was chosen by Jos. Lallande as the notary of the succession, and as such made the inventory. He recollects the account-book and vouchers stated by him in the supplemental inventory. This book was entirely written by witness, at the instance of Dr. Peniston, and the vouchers were put up by witness to the best of his recollection. He thinks he did this in 1860; it may possibly be in 1861. Ho thinks it was in 1860. He made the packages of vouchers under the date they bore; and if any of the packages are dated in 1862, he must have made them a second time in 1862. These were the same papers he found when he made the inventory, and they were the same papers he took from this Court as auditor. The book was a copy-book, with a yellow cover, with some printing in it; this book had a debit and credit side, and purported to be a recapitulation of the amounts contained in the packages of vouchers, and bearing a credit side of income received. One page of said book was a statement of different sales by auction, and the amounts realized thereby. The total of the receipt was brought up under one item for each particular year. The vouchers were classified by witness himself, and were put up under their respective dates, and the packages for each were labelled properly. These papers were in his office at the time of the conflagration, and were all destroyed, and he has not been able to get any of them since.”
    And upon his cross-examination, the witness said further : “Dr. Peniston sent all the papers and vouchers in a newspaper bundle, to the office of witness for the purpose of being classified by him. He requested him to look over the papers, and said they were receipts, and to make from them a statement; and, at the request of Dr. Peniston, he picked up such of the papers that he considered had reference to the successions, and rejected those that did not. Dr. Peniston gave him the instructions, as to which succession the different vouchers had reference to.”
    How those accounts were reported to the Court by the executor, how the copies furnished had been made, how and to what extent the whole had been revised and verified by the executor’s counsel, is fully set forth in the testimony of the counsel.
    The circumstances attending the preparation of the accounts entitle them to peculiar favor. It is in proof that Dr. Peniston had been suffering for years; in 1863, his lifo was rapidly wearing' away; he died in December, 1863. That a father and natural tutor, in articulo mortis as it were, should deliberately sit down and write out false accounts to deceive his minor son, is a thing that is not easily admissible. And in the performance of this duty, he was not alone; the employment of a notary to assist him is certainly not suggestive of any concealment. Mr. Madden was well known for his thorough business habits; had acquired much experience in the notarial profession, and the services required of him, on this occasion, wrere squarely within the line of his precedents.
    These facts are important features in the case. They raise presumptions ■ so strong, they impart rules so safe, that the law has never disregarded them. This Court said in an analogous case: “In 2 N. S. 298, the account of an executor, accompanied by the vouchers in support of it, was held to bejprima facie evidence of its correctness.” In 6 N. S. 335, it was said that the acknowledgment and payment of debts by tutors and curators, which they know to be owing by the estate which they administer, may be considered as prima facie evidence of their correctness. We think these principles are reasonable and just; and if no presumptions of bad faith or dishonesty are raised, they should have their proper effect. When anything of that kind is presented to rebut the prima facie evidence, such as extravagant charges, the purchase of articles or supplies not probably needed, or concealment of funds, or anything of the kind, Courts cannot be too vigilant and strict in their investigations and judgments; but -when there is every appearance of good faith and correct management, executors, administrators, tutors, and other fiduciaries, ought not, in the settlement of their accounts, to be held to ■ the strictest rules of evidence. It cannot be expected that they can always have witnesses to their various transactions, and were they obliged to prove the signature to every receipt for debts paid, supplies purchased, or other matters, the expenses of summoning witnesses, and of their attendance; the taking of depositions, and procuring testimony generally, would involve successions and the property of minors in heavy and oftentimes unnecessary expenses.” Succession of William Franlum, 3 R. 286.
    
      If such is the doctrine generally, with how much force will it apply to our case ? I have no reason to believe that any imputation against the memory of the father will result from the opposition of his son to his accounts, but it may not be out of place that the Court should see in what estimation Dr. Peniston was held by those who knew him best. Madame Avart, from whom the opponent has obtained every dollar he now possesses, was the adopted mother of Amélie Duplantier, and had married .her to Dr. Peniston. They lived together. Madame Avart continued to reside with the doctor, even after the death of her adopted child, and remained with him till the day she died. She had made her last will in 1845, and had appointed Mr. Canon her testamentary executor. In the year 1851, she issued four promissory notes to the order of Dr. Peniston, amounting to the sum of fifty thousand dollars, all dated the same day, 20th April, 1851.
    This was clearly a donation, which, however, the donee has never used: the notes were found among his papers after his death, and are thus described in the inventory: “Four promissory notes for the sum of
    twelve thousand five hundred dollars each, drawn by Yeuve Louis Avart, dated the 20th April, 1851, and made payable to the order of said deceased, in one, two, three and four years, respectively, after date.”
    On the 14th June, 1851, not quite two months after the making of the fifty thousand dollars notes, Madame Avart made a codicil to her testament, and appointed M. Peniston her testamentary executor, with full seizin.
    Such were the evidences of high regard bestowed by Madame Avart, which, combined with the presumptions drawn from nature and from law, will give to the deceased father fair standing in the unexpected assault sprung upon his memory.
    That there may be inaccuracies and unimportant flaws in the account leit by the tutor, I am not prepared to contest. If there be any, the Court will correct them. But, upon close scrutiny and general comparison, the account will be found correct in its main features.
    Mr. Peniston, as the executor of Mrs. Avart, presented a tableau of the estate on the 10th of June, 1856.
    From that day, he became seized of the clear residue of the succession as tutor of his son.
    This residue was classified as follows, viz :
    Real estate, appraised at................... $90,676 00
    Slaves unsold, do......................... 3,300 00
    Cash in Bank............................. 474 30
    Bills receivable........................... 1,617 00
    Claims inventoried........................ 31 25'
    $96,098 55
    This was the full measure of the estate to be administered by the father for the use of his son.
    Now, by reference to the various proces-verbctls of sales, we will at once determine how much the real estate and the slaves were sold for.
    The real estate was sold under two separate orders of Court; the first by Julian Neville, and the other by Beard & Co. The proces-verbals of these auctioneers were first introduced by the opponent; and duplicates were afterwards offered by Lallande’s counsel. This will explain how there are four proces-verbals in proof, when in fact there were only two sales.
    The slaves were sold by Gardner Smith.
    There is also in evidence another proces-verbal of a sale made by Vignié, but this was a sale made during the liquidation of the succession, and was included in the tableau. So that it has no connection with the tutorship.
    Let us sum up the proceeds of the several sales, viz :
    By first sale of real estate, as per proces-verbals............. $25,140 00
    By second sale of real estate, as -per proces-verbals.......... 83,820 00
    By sale of slaves, as per proces-verbals..................... 4,545 00
    $113,505 00
    Here is then the entire amount of the gross proceeds of the Avart estate, which the tutor has received for his son. If we turn to that portion of his account of tutorship, headed “Succession of Madame Avart,” we find that the minor is credited, after payment of all administrative and judicial expenditures incurred for the liquidation of this vast estate, with the net sum of $101,941 99.
    The margin for disbursements is shown to be less than twelve thousand dollars, which is very moderate. The correctness of this part of the account is therefore easily vindicated.
    It is true, the item entitled, Cash in Bank for $474 30, was omitted in the tutor’s account. This is an error the Court may easily correct.
    As to the two other items, for bills receivable, $1,617 00, and for claims inventoried $31 25, which were not accounted for in the tutor’s book, the witness by whom the omission was proved seems truly to have explained it in saying that the items referred to claims which perhaps had never been collected.
    In the other branch of the account, headed “Succession of Madame Penislon," there has been no sale. This estate consisted in city property, bearing monthly rents. The minor is here debited with a balance of $31,038 69. But on the other hand, new buildings were put up at a cost of twelve thousand dollars.
    The bill for repairs, and some of the taxes from December, 1858, to November, 1862, a period of about four years, is proved by Dr. Peniston’s agent to have amounted to the sum of $2,939 87.
    Mr. Yoisin testifies he has acted as agent for Dr. Peniston, from the 1st July, 1858, to the 31st December, 1862. During this period of time, he has collected all the rents, and paid out all the expenses upon the property. His book of agency, which is in evidence, shows the following result, viz:
    To amount of expenses from 1st July, 1858, to
    31st December, 1862...................... $17,218 68
    By amount of rents collected during the same
    time.................................... $16,48125
    Balance due by property situated in parish of
    Orleans.................................. 737 43
    $17,218 68 $17,218 68
    
      The Court will not fail to notice that the debit of the agent’s book does not contain a single item of personal expenses, either for Mr. Peniston or for his son, during these four years. All the charges refer to taxes, insurance, repairs, and new buildings.
    The xu'oof thus afforded by the agent’s book for a short term of four years, explains to a certain extent the balance found by the tutor against the minor.
    The opponent seems to ask with amazement what his father has done with his revenues. We must turn him over to Mr. Voisin, who shows that all his revenues for four years were not enough to pay the tutor for repairs and improvements made. And will not the opponent admit that his father had other expenses to incur, besides those for repairing his houses and building new ones for him ? Expenses of house-keeping ; wages of opponent’s nurses, for he was an infant when he lost his mother; charges for supporting, maintaining and educating him, according to his situation of fortune; travelling expenses, for he indulged quite freely in this luxury; all these very material details in human life, the opponent appears to have completely overlooked. Madame Avart, in her testament, had said:
    “ Je veux que les revenus de mes biens soient employes a son entretien et á son éducation, (meaning her legatee); s’il y a de l’excédent, il devra étre place en propriétés foncieres.”
    I take from the testimony of Joseph Lallande the following extract, viz :
    “All the items upon the debit side of that part of the account of tutorship, which is from my own vouchers, were based ujjon receipts received from Paris, and signed by opponent, and for money drawn there by him.”
    Another witness, Miss Armantine Duplantier, said :
    “Dr. Peniston’s son has partly been raised here; has been one year in Georgia, afterwards in Switzerland, and afterwards in Paris.”
    The opponent, however, passed pretty cleverly over these matters; and presuming he could do better than his deceased father, he has made an account of his own invention, which he offered to the District Judge as the one which should have been rendered. The folly of the author is apparent upon every page he has written. He puts down all he can reasonably imagine must have been collected for him; but throughout the eighteen years embraced in the account, there is not on the debit side a single payment allowed for taxes upon his property; not one for insurance; not one for repairs; not one for keeping the house where he was raised; not one for his maintenance; not one for his education; not one for his voyages; not a word is said about the three new buildings which were put up by the tutor, and have increased considerably the revenues he now enjoys; nothing is said of the sum of four thousand dollars expended up>on the tomb erected to 1ns mother and her'benefactress, Madame Avart.
    And what, at last, makes the thing utterly ridiculous, is the exhibit shown for the year 1848, where he gathers along an amount of rent going-up to $2,232 00, whilst liis'ingenuity could find only one item of expenditure to be carried to the debit side, and amounting to the sum of $175, for the whole year round,
    
      And in this way the opponent has run up his own account to the enormous sum of $199,599 99, including interests from year to year. Notwithstanding the cleverness displayed, I must confess, for the sake of justice to the other heir, his honor below was right in disregarding it.
   Taliafebbo, J.

The controversy in this case relates to a tutor’s account. Thomas Peniston died in the latter part of the year 1862. He had been the natural tutor of his minor son, Joseph A. Peniston, during a period of about eighteen years. During this time he administered a largo estate, exclusively the property of the minor.

Shortly after the death of the tutor the minor was emancipated, and required from the executor of his father’s estate the rendition of an account of the tutorship.

It appears that a short time before his decease, Dr. Peniston, father of the minor, had deposited in the hands of a notary a number of papers relating to his business generally, and among them the vouchers and documents of various kinds having reference to the tutorship of his minor son, and intended the notary to make out a statement of the tutorship. An account was made out accordingly, which in May, 1864, was presented by the executor, with accompanying papers as vouchers. The account was offered by the minor, and as the investigation of the subject involved the examination of a mass of papers relative to transactions running through so many years, the Court referred the matter to auditors. During the time the auditors were engaged in their functions, the building in which their labors were conducted took fire, and was entirely destroyed, and with it the tutorship account, the oppositions to it, the mortuary proceedings and all the papers of every kind connected with the settlement in contemplation were consumed.

In March, 1865, on the part of the minor, an order was rendered directing the executor to file another account. To this order he responded by filing an account identical as to amount of indebtedness of the tutor, with the former, stating that he was enabled to do so from original drafts of papers in the hands of his attorney, but averred his inability to render any more explicit or detailed account. This second account showing like the first, a balance due the minor of $64,185 31 was offered. ' On behalf of the minor an account against the tutor was presented of $199,959 26, made up as alleged of debts, revenues and income collected, the price of property sold, and interest; the amount claimed being as stated, a not balance after allowance made for all expenses, outlays, commissions, etc., as credits.

The opposition was dismissed, and the opponent has appealed.

We are unable to concur with the Judge a quo in the conclusion, that the account rendered by the executor should be confirmed. At its first presentation it was strenuously opposed, and we have no grounds to infer that the last evidence would have sustained it. Besides, there is not wanting in the record evidence to satisfy us of the probability, that the estate of the minor was not managed with a scrupulous regard to his interests. How, in the present state of the controversy anything satisfactory or conclusive can be arrived at, or how, under the pleadings and the meagre proof, or rather no proof at all in support of the tutor’s account, any judgment can be rendered that would do justice to the parlies, we are at a loss to conceive.

The casualty by which the litigants have been deprived of written evidence, does not dispense them from the necessity of supplying it as far as possible by secondary evidence.

We feel it incumbent upon us to return the case to the Court of the first instance, in order that it may undergo further examination, with the view of adjusting more definitely the rights of the parties.

It is therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the case be remanded to tho lower Court for further proceedings according to law, the costs of this appeal to be sustained by the succession.  