Burdett, Guard., v. Cain, Admr.

• Decision Date: 01 March 1875
• Citation: 8 W.Va. 282
• Court: West Virginia Supreme Court
• Parties: Burdett, Guard., v. Cain, Admr.

8 W.Va. 282

Burdett, Guard.,

v.Cain, Admr.

Supreme Court of Appeals of West Virginia.

March 1, 1875.

A guardian is not authorized to file a bill in equity in his own name as guardian to recover the distributive share or interest of his wards in the personal estate of their ancestor. In such case the bill should be dismissed. The suit should be brought in the name of the infants by their next friend who may be guardian.

Appeal from a decree of the circuit court of Roane county. The opinion of Court contains a statement of the case.

The Hon. Robert S. Brown, judge of said circuit court, presided at the hearing below.

Henry C. Flesher and William H. Hogeman for the appellant.

Benjamin H. Smith, for the appellees. Haymond, President.

The plaintiff, on the 28th day of June, 1869, as guardian of Macklin E. Cain, Elmore E. Cain and Willie Ann Cain, infant children of William T. Cain, deceased, commenced a suit on the equity side of the circuit court of Roane county, against Alfred Cain, administrator of William T. Cain, deceased, Gamaliel Board, Macklin E. Cain, Elmore E. Cain, Willie Ann Cain and Roswell R. Chancey.

Afterwards, at July rules, 1869, the plaintiff filed his bill against the said defendants, in which he alleges that William T. Cain, late of the said county, died intestate, leaving Sarah Jane Cain, his widow, who has since intermarried with defendant, Gamaliel Board, and Macklin E. Cain, Elmore E. Cain and Willie Ann Cain, infant children, and a large estate consisting of both real and personal property; that on the 19th day of March, 1866, the defendant, Alfred Cain, was duly appointed administrator of the estate of the said Wm. T. Cain, deceased, and that on the same day he, together with defendant, Roswell R. Chancey, his security, entered into and acknowledged bond in the penalty of $5,000, conditioned according to law; that the personal property produced to the appraisers of said estate duly appointed, was by them returned at the sum of $3,888.25; that in addition to the property appraised as aforesaid the administrator received other valuable property, goods and chattels of the intestate, consisting of an interest in a certain mill, notes, accounts, &c, worth, in the aggregate, about $1,500; that the administrator sold a part of the goods and chattels appraised at $2,330.45, which appears by the sale bill; that the personal estate received by the administrator was more than sufficient to satisfy the just debts and funeral expenses of the decedent; that the administrator has made no settlement of

said estate; that the plaintiff was on the day of, 1866, duly appointed, by the proper authority, guardian for said Macklin E. Cain, Elmore E. Cain, and Willie Ann Cain, infant heirs of said William T. Cain, deceased, and that they are the only legal heirs of said intestate, and each of them are still infants. The plaintiff prays that an account be taken, under the direction of said court, of the personal estate and effects of said intestate possessed by or which came to the hands of the said Alfred Cain, as administrator as aforesaid, or the hands of any other person, by his order or for his use, and also an account of the intestate's debts and funeral expenses; that the intestate's personal estate be applied in due course of administration, and that the residue thereof may be ascertained, and that the plaintiff be paid as guardian as aforesaid the respective shares ot his said wards of such residue. He also prays for general relief.

No demurrer was filed to the bill. A guardian ad litem was appointed for the infant defendants, who filed a mere formal answer in which he says the infants are of tender years, and unable to protect their interests and he asks that the interests of the infants may be protected, and that strict proof be required in all things concerning their interests.

Alfred Cain, the administrator, filed an answer, and amended answer, in which he claims, substantially, that he has fully administered the estate and owes plaintiff nothing as guardian.

The court referred the cause to a commissioner to settle the accounts of said administrator as such, &c. Subsequently, such proceedings were had in the cause that at a term of said court held for said county on the 15th day of August, 1871, the court decreed in favor of the plaintiff against said Alfred Cain, administrator, &c, for $1,-200.02 with interest from the first day of April, 1871, and also rendered a decree in favor of Jane Board, the widow, against said Alfred Cain, administrator as aforesaid, for the sum of $296.63, with interest from the 1st day of April, 1871, but the amount decreed in favor of plaintiff and said widow is subject to a credit mentioned in the decree.

Some exceptions were filed to the report of the commissioner which it is unnecessary to notice.

From this decree the said Alfred Cain has appealed to this Court.

It is now here argued before us, that the circuit court erred in rendering the said decree, and that the court instead of decreeing against the appellant, as it did, should, at the hearing of the cause, have dismissed the plaintiff's bill, because the plaintiff, as guardian of the infants in his bill mentioned, is not authorized to file a bill in his own name for the purposes and objects therein3 mentioned. In considering this question, I do not propose to enter, in this opinion, into a minute examination and history of the legislation of Virginia, from which we have derived our legislation, upon this subject. Nor do I propose to enquire into the different kinds of guardians there were, or are, by the common law, and the prerogatives and powers of each over their wards, or the real and personal property of their wards. That has already been done by others, ably and satisfactorily, and I shall content myself by referring to authorities which I deem respectable and satisfactory upon the subject. Much of the legislation of Virginia upon the subject of guardians will be found well stated in the opinion of Judge Daniels, in the case of Ham v. Ham, 15 Gratt., 74. However, very much light cannot be gathered upon the question under consideration from that opinion. In The case of Truss v. Old, 6 Rand, 556, it was held that "Possession is indispensably necessary to support trespass quare elausum fregit. Guardians in socage and testamentary guardians, (although they have no beneficial interest,) yet have a legal interest, and the possession of the ward's land during the guardianship. If, therefore, a person trespass on the lands of an infant, and cut and carry away his trees, without license, the ward cannot maintain trespass, but the guardian may, and must account to the ward for the damages recovered. If the trees are cut and carried away by permission of the guardian, no trespass is committed, and the infant, even after the guardianship has ceased, cannot maintain trespass for the act. The wrong must be compensated to the ward by the guardian. It seems that if timber trees, growing on the inheritance of the ward, are thrown down by tempest, or otherwise, they become personal property, and the guardian has a legal right to sell them, as being perishable and of no value except as a subject of sale, and in such case the infant cannot bring trover for them."

Judge Green, in delivering the opinion of the court, inthat case, says: "Possession is indispensably necessary to support an action of trespass qnare clausum /regit, and whether...