Clark v. Clark.
| Decision Date | 27 February 1912 |
| Court | West Virginia Supreme Court |
| Parties | Clark v. Clark. |
Administrators.
In a suit by an administrator to settle his accounts, and charge the land of infant heirs with an over payment on debts of the decedent, the court allows their guardian to file a petition contesting the administrator's demands, and makes him a defendant with leave to make defence. There is no reversible error in this. It is equivalent to appointing the guardian as guardian ad litem, (p. 423).
When a commissioner in chancery has completed a report, he must notify counsel of its completion, but the statute does not say any length of time of notice before filing the report after completion, (p. 431).
Report of Commissioner in Chancery.
When an attorney has been notified of the completion of a report, and makes exceptions to it after its return, it cannot be specified as error in the appellate court that the time of notice was too short before filing the report, when no application for further time to the court below was made. (p. 433).
A direct, specific admission of a fact in a pleading is binding and conclusive on the party making it. (p. 433).
Appeal from Circuit Court, Eandolph County.
Bill in equity by George 0. Clark, administrator, gaianst George (). Clark and others. From a decree for defendants, plaintiff appeals.
Affirmed.
Claude W. Maxwell, for appellant.
II. Roy Waugh and Samuel T. Spears, for appellees.
Brannon, President:
George 0. Clark was appointed administrator of the personal estate of his deceased wife, A.lcinda Clark. She died leaving personal and real estate. She left six children. Three of them were of tender years, when she died in 1904. One, Orda, was then five years old, and Alcinda and Carrie, twins, mere babies a few days old. George 0. Clark brought suit against his children in the circuit court of Randolph county asking the court to cause a settlement of his accounts as administrator, to be made and alleging that he had paid many debts of his dead wife in excess of her personal estate, leaving har estate in debt to him in the sum of $2,272.16, and praying that her land be sold therefor. H. B. Morgan was appointed guardian for three of the infants, Orda, Alcinda and Carrie Clark, and he as guardian presented a petition in Clark's suit, asking to be made a defendant in order that he might contest the claim made by Clark of indebtedness against his wife's estate, and that the petition be treated as his answer. That petition denied such indebtedness. The court allowed the petition to be filed and ordered that Morgan as guardian be made defendant and allowed to defend the case. The court assigned a guarcian ad litem for all the infants, and he filed their formal answer, making no allegations, but placing the rights of the infants under the care of the court. The court referred the case to a commissioner in chancery to report what personal estate Alcinda Clark owned at her death, and what disposition thereof the administrator had made, and how much, if any, personal estate was in his hands as administrator available for payment of debts, and to settle the accounts of George 0. Clark as administrator, and to report and specify what debts Alcinda Clark owed at tie time of her death, and what real estate she left. The contesting parties, George 0. Clark and the guardian Morgan, appeared before the commissioner and a hearing was had, and the commissioner reported, upon all the evidence before him, and his report found a balance due from the administrator to the estate of $772.47. Clark filed exceptions to this report. The court overruled the exceptions and confirmed the report, and decreed that George 0. Clark had in his hands as administrator $772.47, and decreed that Clark pay that sum to the estate, and pay to Morgan as guardian for Orda A. Clark, Alcinda Clark and Carrie Clark their proportionate share of $772.47, and gave Morgan leave to sue out execution therefor, and further decreed that George 0. Clark pay the remainder of the funds going to the other infants to the general receiver of the court. From this decree George 0. Clark appealed.
The first point made against the decree is the action of the court in overruling Clark's demurrer to the petition of guardian Morgan. The claim, is that a guardian can not bring suit to recover the personal estate of his ward from his administrator, citing Burdeti v. King, 8 W. Va. 282, holding that a guardian cannot sue to recover the distributive share of his ward in the personal estate of an ancestor, but that the suit must be in the name of the infant by his next friend. The same principle is stated in McMullen v. Blecher, 64 W. Va. 88, holding that a guardian cannot maintain a suit for partition or intervene therein to secure royalty oil under an oil lease as the share therein of his ward. But in the later case of Suter v. Suter, 68 W. Va. 690, it was held that a guardian may maintain a suit for partition in behalf of his ward. In the last case it was distinguished from the McMullen Case, which was said to be under a contract. Under the latest case Morgan as guardian could, in my opinion, maintain a suit against Clark to have a settlement of his accounts as administrator and recover the share of his wards. But we do not have to go so far in this case. Morgan is not really bringing an original suit. Clark brought the suit to settle his accounts and charge the lands of the wards with debts, and their guardian simply asked the court to let him defend their interests, to produce evidence to resist the claim of indebtedness against the estate of his wards. The guardian ad litem made no defence, and ought not a court of equity listen to the suggestion of the guardian in defense of his wards? He is not an intruder, but has an interest, from his office, in the litigation.
Morgan was made a defendant. "Persons are not improper defendants who are so connected with the case as to be directly interested in obtaining or resisting the specific relief asked in the bill." Zell Guano Co. v. Ileatherly, 38 W. Va. 410; Hogg's Eq., vol. 1, page 41. In Minor's Institutes, as cited to us, it is stated that "if an infant fully defended by his testamentary or regularly appointed guardian, the acquiescence of the court is equivalent to the appointment of such person as guardian ad litem." In Durrett v. Davis, 24 Grat, 302, an answer for an infant was filed by his guardian, purporting to be by his guardian ad litem; but the opinions, statements and responses as those of the guardian were given. It was held to have the same effect as if filed by the guardian in proper person.. The court thought it sufficient though filed by the guardian. In Beverly v. Miller, 6 Munford 99, it was held that in a suit against an infant, if it was defended by his regular guardian, and his answer was received on his behalf by the court, the infant was bound as if the guardian had been appointed a guardian ad litem. I suggest that it was the duty of the court to protect the interest of the infant, and it would commit no error in allowing the guardian to come to its aid by presenting matter of defense to enable the court to preserve the rights of children. By receiving this petition and acting on it the court in effect appointed the guardian as guardian ad litem. But this is immaterial. Suppose Morgan had not filed his petition. The commissioner was directed to ascertain and report, and no one can say that when Morgan produced a witness he could not be heard by the commissioner. He made no defense but this. What if there were two guardians ad litem? We must not yield to technicality, but look to substance and further the ends of justice.
One exception to the commissioner's report was "because the report was not made up within ten days before the 18th day of May 1909." Under this exception complaint is made that the report was made, not within ten days before its completion, but that it did not remain in the commissioners office ten days for examination. The report was completed May 6. On the 19th the commissioner certifies that "the foregoing report was retained by me after completion, previous to filing the same, ten days for examination; that notice was given of completion of the same, as required by law." So it seems that it wras retained the ten days in the commissioner's office after completion. No evidence shows it was not so retained.
An affidavit of the plaintiff's attorney was tiled stating that no notice was given him of the completion of said report until May 18, 1909. We have thus the commissioner's certificate that notice was given. The statute does say that notice of completion of the report shall be given the attorneys; but I do not think that it requires ten days notice before filing. If the party has notice before the hearing he knows of the report. But in answer to this...
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