Avoiding conflicts of interest
It is all too common a story in the records of the 1860s and 1870s.
A story of some lives cut short, other lives changed forever.
It’s a story that begins to be told in the records of a very young family on the 1860 census in St. Clair County, Alabama. The husband and father, Isaac Battles, a shirt-tail cousin to The Legal Genealogist, was just 21; his wife Malissa was 25; and their son Andrew was nine months old.1
A daughter would be added to the family in 1863,2 but there would be no more children born to Isaac and Malissa after Samantha joined the family.
Because something terrible was about to engulf this small Alabama family. The Civil War hit hard in this area of Alabama, and split families deeply between north and south. And Isaac went off to fight for the north.
On the 8th of December, 1863, at the age of 23, this farm boy from Alabama joined Company K of the 3rd Tennessee Cavalry Regiment. He was taken prisoner at Sulphur Trestle, Alabama, in September 1864,3 and was one of the men placed about a steamer in April of 1865 to be transferred from southern prison camps to the north.
The steamer was the Sultana.
Which made it only seven miles north of Memphis, Tennessee, before it exploded, burned and sank on 27 April 1865, killing roughly 1,700 men,4 including Isaac Battles. His final military record shows that he was “Killed or drowned by the explosion of Str Sultana.”5
By 1870, Malissa had remarried, and she and her Battles children were recorded under the surname of her new husband, Thomas William Painter.6 Andrew was shown as 10, Samantha as 7.
Neither of the Battles children was enumerated with Malissa and her husband and their children in 1880.7 Andrew was age 20, married and father of a new baby.8 Samantha’s whereabouts aren’t clear.
But something else was going on between those censuses. In March 1877, the two children — by then both over the age of 14 — asked the court to appoint their mother Melissa Painter as their guardian.9 The reason was simple: they were entitled to a federal pension as the minor heirs of a Civil War casualty.
The records that result provide a couple of really neat details at a time when birth records for this part of Alabama are few and far between: the boy Andrew turned 16 on 13 October 1875, making his birthdate 13 October 1859; and the girl Samantha turned 16 on 15 February 1879, making her birthdate 15 February 1863.
Their mother, acting as their guardian, made application for them to receive the benefit as their father’s heirs, and as guardian received the pension money and was required to account to the court for it.
And then there’s that one additional document. On the 12th of June 1880, John H. Walker of Etowah County, Alabama, was appointed guardian ad litem for Andrew Jackson and Samanetha E. Battles, children of Isaac Battles, deceased.
The form filed with the court by Walker stated that he accepted the appointment of guardian ad litem for the minors to “represent and protect their interests upon the hearing of the above application of Malissa J. Painter, guardian, for partial settlement of estate of said minors.”
What was that about?
Black’s Law Dictionary defines a guardian ad litem as a “guardian appointed by a court of justice to prosecute or defend for an infant in any suit to which he may be a party. … Most commonly appointed for infant defendants; infant plaintiffs generally suing by next friend. This kind of guardian has no right to interfere with the infant’s person or property.”10
The most common reason for the appointment of a guardian ad litem is the possibility that there could be a conflict between the regular guardian and the minor heirs. Any time an appointment is made ad litem it’s for a particular action, and to avoid the potential of a conflict of interest — where somebody like the guardian in this case might be tempted to take advantage of his or her position.
It’s a device to ensure that the person who’s getting the ad litem representation — the minor heirs in this case — have independent representation separate and apart from the guardian who — in this case — was trying to settle up with them.
And, in fact, there was a dispute in this case, between the mother as guardian and the daughter and her new husband, whom she married between 1880 and 1881. The dispute was submitted by both sides to a panel of arbitrators, who split the amount in dispute in half and awarded roughly half to the daughter and her husband and half to the mother.
Ad litem. “For the suit; for the purposes of the suit; pending the suit.”11
SOURCES
- 1860 U.S. census, St. Clair County, Alabama, Twp. 12, Range 4E, population schedule, pp. 127(A-B) (stamped), dwelling 218, family 216, Isaac Battles household; digital image, Ancestry.com (http://www.ancestry.com : accessed 5 May 2015); citing National Archive microfilm publication M653, roll 23. ↩
- Etowah County, Alabama, Probate Case File B-2-8, Battles, Box 2, Folder 90; digital images, “Alabama Estate Files, 1830-1976,” FamilySearch (https://familysearch.org : accessed 5 May 2015). ↩
- Isaac Battles, Pvt., Co. K, 3rd Tennessee Cavalry; Compiled Service Records of Volunteer Union Soldiers Who Served in Organizations from the State of Tennessee, NARA M395, 200 rolls (Washington, D.C. : National Archives and Records Service, 1963); digital images, Fold3 (http://www.Fold3.com : accessed 5 May 2015), roll 22, Isaac Battles file. ↩
- See generally Wikipedia (http://www.wikipedia.com), “Sultana (steamboat),” rev. 1 May 2015. ↩
- Isaac Battles, Casualty Sheet; CMSR, Fold3 Isaac Battles file. ↩
- 1870 U.S. census, Etowah County, Alabama, Twp. 12, Range 4, population schedule, p. 249(B) (stamped), dwelling/family 77, T. W. Painter household; digital image, Ancestry.com (http://www.ancestry.com : accessed 5 May 2015); citing National Archive microfilm publication M593, roll 16. ↩
- 1880 U.S. census, Etowah County, Alabama, area, population schedule, enumeration district (ED) 68, p. 341(D) (stamped), dwelling 75, family 76, Thomas Painter household; digital image, Ancestry.com (http://www.ancestry.com : accessed 5 May 2015); citing National Archive microfilm publication T9, roll 13. ↩
- Ibid., dwell. 70, fam. 71, Andrew J. Battles household. ↩
- Guardianship appointment, Etowah County, Alabama, Probate Case File B-2-8, Battles, Box 2, Folder 90; digital images, “Alabama Estate Files, 1830-1976,” FamilySearch (https://familysearch.org : accessed 5 May 2015). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 551, “guardian ad litem.” ↩
- Ibid., 33, “ad litem.” ↩
20-something years ago, I served as a Guardian ad Litem in a dual conservatorship proceeding. It was one of the last in New York because between the initiation of the proceeding and the actual hearing, New York’s Mental Hygiene Law was amended so as to discontinue all new conservatorship proceedings under the old Article 77 and Committee proceedings under the old Article 78; all further incompetency proceedings were for Guardianships under a new Article 81 of the Mental Hygiene Law.
The case involved both a husband and a wife. My ward, the husband, had a son from his first marriage. Father and son were most emphatically estranged from one another. Another local resident of some renown had the same name as my ward (though he was unrelated); the two had apparently met on a number of occasions.
It gave the elderly couple some much needed assistance, but, as with other such proceedings, the record of the case is sealed and not available to the public.
Too bad! It would make for some potentially enlightening reading for a genealogist, professional or otherwise. And it is entirely conceivable that the children and/or grandchildren of the son, having been raised with their progenitor excluded from their lives, may well take an interest in this episode of their family history to fill the void.
With luck, some of those cases will become available at some point down the road, Ken. There surely is no public or private purpose being served in keeping them locked up forever from public (and family) review.
Oh my. I’ve long studied James Harvey Hooper of East Tennessee. He lived in an area that had a courthouse fire in the 1850s, making research on his family more difficult.
Hwwever, James H Hooper was a Union man and became a sergeant of Company D in the 3rd Tennessee Cavalry. Like Isaac Battles, Hooper was captured at Sulphur Trestle on the Nashville and Decatur Railroad in September, 1864. He endured the wretched conditions at Castle Morgan prison camp at Cahaba, Alabama, and was aboard the Sultana. He did not survive.
However, Sergeant Hooper’s neighbor and fellow soldier/prisoner James Wiley Hodges [private, Company F, 3rd TN Cav] did survive. During the war, Hodges had fled to Kentucky and entered the 3rd TN Cavalry there. Hodges left a written account of how he managed to survive the Sultana explosion and float on a plank until rescued. In 1869, Hodges married the widow Hooper, who had worked for Hodges’ mother during the war.
According to an article “Union Soldiers’ Names Left on Stone of Tragedy” in the Knoxville News Sentinel, page A8, 7 April 1984, there is a monument to Union Soldiers – including the 3rd TN Cavalry – at Mount Olive Cemetery, Old Maryville Pike, [Blount Co, Maryville, TN]. Engraved on the monument are names of 365 men who died on the Sultana.
Soon after peace came, the widow Hooper filed for an orphan’s pension for the benefit of child. From that file, I know not just the day of birth of the only child of James Harvey Hooper, but also the exact house where she was born and the name of the women attendants at birth. From county records, I learn that the child’s stepfather became her guardian. She was not quite 20 when she married, but now I wonder if there was a final settlement after her marriage and name change. I guess I need to do some roadwork to find whether she had a guardian ad litem at that point. Thanks for the clue that there might be further records I should search.
Judy,
Was the guardian ad litem paid a fee for acting in this capacity? If so, who paid him?
Thanks
Great question and the answer is: it depends! In general, there was some fee for this service –either set by law or by the court — and it was usually paid by the litigants (or the estate).
What I find curious is that the arbitration panel awarded a portion of the pension to the mother when, presumably, the pension was based on the daughter being the orphan of a war casualty, not on the mother being the widow (I’d think there was a separate pension for that.) Unless the marriage was in the middle of the “pension year” where the daughter had been half under her mother’s care and half under her husband’s, what would the rationale have been?
She was entitled as the guardian to reimbursement for her expenses in caring for the ward during the years of the ward’s minority. In other words, even though she was the mother, she was allowed to get paid back for what she spent raising her own child.
Interesting. The minor children’s stipend due as orphans of a deceased Union soldier expired when each reached age 16 or married, whichever came first. I have not yet seen an instance when one of these received the stipend retroactively. Is this what happened?
It doesn’t appear to be retroactive in terms of payment, no, since the date on the widow’s pension is 1866. I suspect that this was more in the way of accounting by the children’s guardian (who happened to be their mother) to the children.
Isaac battles was my 4x great grandfather.
Then we’re cousins, Mary! Isaac’s grandfather, Samuel Battles, was the older brother of my fourth great grandfather William Battles. Both Samuel and William were sons of William Noel Battles.
Issac was my 2x great grandfather. I remember Samantha who was my great grandmother. I was 4 when she died but my mother would take me to visit her. She was blind but she would manage the farm she lived on nonetheless. She was 89 when she died I believe. I remember going to the house at Whitesville community near Boaz where she laid in state.
Well, hello there cousin — 6th cousin, to be precise, if I’m right about your line of descent (William Noel -> Samuel -> William -> Isaac -> Samantha as your great grandmother). My line is William Noel -> William -> Margaret -> Martha Louise Shew -> Eula Baird as my great grandmother and on down to me.