Campbell v. Fichter

• Decision Date: 20 June 1907
• Docket Number: 20,950
• Citation: 81 N.E. 661,168 Ind. 645
• Parties: Campbell, Guardian, v. Fichter, Executor, et al
• Court: Indiana Supreme Court

81 N.E. 661

168 Ind. 645

Campbell, Guardian, v. Fichter, Executor, et al

No. 20,950

Supreme Court of Indiana

June 20, 1907

From Decatur Circuit Court; Marshall Hacker, Judge.

Action by William S. Campbell, as guardian of Francis W. Ackerman, a minor, against Lawrence Fichter, as executor of the will of Eliza Ackerman, deceased, and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Burt New, Willard New, J. K. Ewing and Frank Hamilton, for appellant.

B. F Bennett, Thomas E. Davidson, Hugh Wickens and John E. Osborn for appellees.

OPINION

Gillett, J.

Proceeding to contest a will. The action purports to be brought by William S. Campbell, as guardian of Francis W Ackerman, but in the body of the complaint the latter (a minor) is referred to as the plaintiff, and this occasions some difficulty in determining whether Ackerman is in court; but, as the guardian was treated as the plaintiff by the parties and the court below, and as he is assigning error in this court, we shall assume, and hold the parties to the theory, that the action is prosecuted by the guardian. See Maxedon v. State, ex rel. (1865), 24 Ind. 370. So construing the complaint, the threshold question in this case is: Can the guardian of a minor maintain an action to contest a will? If this question should be determined against appellant, the judgment must be affirmed.

It is true that the statute (§ 2766 Burns 1901, § 2596 R. S. 1881) provides that "any person" may contest the validity of a will, but this has been construed to mean any person having an interest in the subject-matter of the contest. Niederhaus v. Heldt (1867), 27 Ind. 480; Schmidt v. Bomersbach (1878), 64 Ind. 53. As the statute is wholly silent as to the manner in which such an action shall be brought by an infant, we are clearly justified in looking to the civil code. Hart v. Scott (1907), ante, 530, and authorities there cited. It was said in Chicago, etc., R. Co. v. Summers (1887), 113 Ind. 10, 15, 3 Am. St. 616, 14 N.E. 733: "It has often been held by this court, and correctly so, we think, that the modes of procedure and rules of practice prescribed by our civil code in civil actions are all applicable to a special statutory proceeding for the enforcement of private rights, except where the statute, authorizing and regulating such special proceeding, has expressly or by fair implication prescribed a different course of procedure or rule of practice therein." The code provides that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section." § 251 Burns 1901, § 251 R. S. 1881. The section thus referred to (§ 252 Burns 1901, § 252 R. S. 1881) contains the following provisions: "An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. It shall not be necessary to make an idiot or lunatic a joint party with his guardian or committee, except as may be required by statute." By § 256 Burns 1901, § 255 R. S. 1881, it is provided: "When an infant shall have a right of action, such infant shall be entitled to bring suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age." The next section (§ 257 Burns 1901, § 256 R. S. 1881) provides that a competent and responsible person is to appear as next friend of the infant. There can be no question, in view of the statutory provisions before referred to, that it is competent for an infant, appearing by next friend, to contest a will.

We directly address ourselves to the question whether the guardian of an infant may sue in his own name in such a proceeding as this. We take it that the authority of a guardian in this State is measured by legislative enactment. His power over the property of his ward, under the guardianship statute (§ 2673 et seq. Burns 1901), may be said, in the main at least, to be confined to the management of the estate (including a circumscribed power over the real estate), the payment of debts due from his ward, and the collection and compounding of debts due him. As showing that the guardian has not an unlimited right to sue, it is significant that provisions are found in the code giving him authority to maintain particular actions (§§ 265, 267 Burns 1901, §§ 264, 266 R. S. 1881), while both the partition and the guardianship statutes (§§ 1208, 2707 Burns 1901, §§ 1194, 2542 R. S. 1881) give him authority to represent the infant in suits for partition. It is especially significant that in the latter statute it was deemed necessary to provide that it should be the duty of the guardian to defend, or cause to be defended, all suits against the ward (§ 2685 Burns 1901, § 2521 R. S. 1881), while, as respects actions in his favor, it was merely provided that "all courts have power * * * to permit any person, as next friend, to prosecute any suit in any minor's behalf" (§ 2684 Burns 1901, § 2520 R. S. 1881). Bearing in mind the proposition that a guardian's authority in this State is derived from statute, it would seem quite clear in the light of the duties expressly devolved upon him, and giving due consideration to the general provision of the code as to parties plaintiff, as well as to the implications growing out of the special provisions concerning the guardian suing and defending, that he has no authority to wage on behalf of the ward an action of this character.

It is, however, asserted by counsel for appellant that a guardian is the trustee of an express trust under § 252, supra. There are authorities which recognize the proposition that in some instances a guardian may sue by virtue of such provision (Shepherd v. Evans [1857], 9 Ind. 260; Schlieder v. Wells [1906], 99 N.Y.S. 1000, and New York cases cited), but we think that they are all cases in which the particular subject-matter of the action was such that the guardian might be considered to be the trustee of an express trust, even within the definition which the statute itself affords. Construing the code and the guardianship statute in pari materia, it may further be admitted that the right of a guardian to sue may in some instances be affirmed as an essential incident of the duties devolved upon him. It is clear, however, that the mere existence of the relationship of guardian and ward does not constitute the guardian of an infant the trustee of an express trust within the meaning of § 252, supra. Professor Pomeroy carefully discusses this statutory provision concerning parties plaintiff, which, it may be observed, is found in a number of the codes, and, in the course of his discussion, says: "A guardian or committee, although possessing a power to be exercised for the benefit of another, is not a trustee; and the term, when applied to him, could be used only in a popular and not a legal sense. Such a guardian or committee, would not therefore, by virtue merely of the permission granted in the provision of the statute under examination, be entitled to sue in his own name as a trustee of an express trust." Pomeroy, Remedies and Remedial Rights (2d ed.), § 172, p. 210. See, also, Maxedon v. State, ex rel., supra; Weaver v. Trustees, etc. (1867), 28 Ind. 112; Rawlings v. Fuller (1869), 31 Ind. 255; Mitchell v. St. Mary (1897), 148 Ind. 111, 47 N.E. 224; Fox v. Minor (1867), 32 Cal. 111, 91 Am. Dec. 566; Palmer v. Ft. Plain, etc., Road Co. (1854), 11 N.Y. 376; Robbins v. Deverill (1865), 20 Wis. *142. It is evident, we think, that the term "express trust" was not used in the above statute in a loose or popular sense, and, in view of the principle that that which is expressed is an exclusion of all else, the provisions of the statute concerning who may sue become quite significant by their implied exclusion of other persons.

There are a number of cases which deny to the guardian the right to file in his own name a bill in equity on behalf of his ward. Lemon v. Hansbarger (1849), 6 Gratt. 301; Sillings v. Bumgardner (1852), 9 Gratt 273; Burdett v. Cain (1875), 8 W.Va. 282; Bradley v. Amidon (1843), 10 Paige 235; Hoyt v. Hilton (1834), 2 Edw. Ch. (N. Y.) 202; Sanderson v. Sanderson (1880), 17 Fla. 820. In Genet v. Tallmadge (1815), 1 Johns. Ch. *561, Chancellor Kent, in denying the petition of a guardian that he be paid the distributive share of his wards in the hands of commissioners so as to make partition of the lands of the ancestor of said wards, said: "It is not the general policy of the law that any guardian should have it in his power, under any circumstances, to dissipate the real estate of his ward. The law never allows him any further control than over the rents and profits." It was held in Muller v. Benner (1873), 69 Ill. 108, that, as the only power a guardian in Illinois has over the lands of his ward is to lease the same, he cannot maintain ejectment as guardian. The same conclusion was reached in Kinney v. Harrett (1881), 46 Mich. 87, 8 N.W. 708. The opinion of Judge Cooley in that case, although it deals largely with the Michigan statutes, sheds so much light upon the limitations which exist upon the power of guardians to sue under statutes like our own that we venture to quote from it at some length. He there said: "As guardianship in this state is a matter of statutory regulation, common-law rules will afford little aid in determining this question. It has been held that guardians in socage might bring ejectment in their own names (Wade v. Cole [1789], Ld. Raym. 130; Rex v. Inhabitants of Oakley [1809],...