Hinton v. Bland's Adm'r

• Decision Date: 08 April 1886
• Citation: 81 Va. 588
• Parties: HINTON AND ALS. v. BLAND'S ADM'R AND ALS.
• Court: Virginia Supreme Court

81 Va. 588

HINTON AND ALS. v. BLAND'S ADM'R AND ALS.

Supreme Court of Appeals of Virginia.

April 8, 1886

Absent, HINTON, J.

Appeal from decrees of circuit court of Petersburg, pronounced December 17th, 1881, and July 9th, 1883, respectively, in a suit in equity therein pending, in which John R. Hinton and Ella, his wife; F. M. Wright and John W. Bradbury, surviving partners, & c.; and James F. Epes, administrator of F. C Williams, deceased, are the plaintiffs, and William E Hinton, Jr., and Mary R., his wife; Drury A. Hinton committee of Nannie O. Bland; William R. Bland, late curator of the estate of Thomas P. Bland, deceased; George C. Bland, executor of Matthew R. Bland, deceased; and William R. Watkins, administrator d. b. n. of said Thomas P. Bland, deceased, are defendants.

In 1860 Thomas P. Bland, and in 1863, his son, John E. Bland, died intestate, leaving large estates. The same persons are the heirs of both decedents, being the daughters of the former and the sisters of the latter, to-wit: Ellen, the wife of John R. Hinton; Mary, wife of William E. Hinton, Jr., and Anna O. Bland, a lunatic. In 1863 John R. Hinton and wife filed their bill against the decedents' representatives for partition of land. Report had been made when, in 1865, the papers were destroyed. In 1868, by consent, the cause was re-instated. John R. Hinton and wife then excepted to the report on the ground that the tract of land called " Caskies," allotted to them, was subject to a lien for a balance of purchase money due to F. C. Williams, executor of D. G. Williams, deceased, and it was decreed that a commissioner inquire and report as to this lien. The report showed its amount to be $4,236.68; and at November term, 1871, the cause was heard on this report, and on a written agreement between William E. Hinton, John R. Hinton, and W. L. Watkins (who had qualified as administrator of Thomas P. Bland), whereby certain matters between them were settled, and William E. and John R. Hinton agreed to pay each one-third of said lien. The report was confirmed, and Watkins decreed to pay the amount to F. C. Williams, executor of D. G. Williams.

In 1880, F. C. Williams having died, James F. Epes, his administrator, petitioned to have the amount paid to him. The report having been then recommitted, was returned in 1881. Exceptions were filed. D. A. Hinton, committee, petitioned for a rehearing of the decree of November term, 1871. At July term, 1883, William E. Hinton and wife filed a similar petition. Watkins and Epes answered both petitions. The court refused to re-open the decree complained of, because it was a consent decree as to William E. Hinton and wife and John R. Hinton, and also because the petitions did not state with sufficient distinctness the evidence relied on, and support the same by affidavits. A decree was thereupon entered overruling all the exceptions but that of D. A. Hinton, committee, and ordering certain payments to Watkins' administrator, & c., by William E. and John R. Hinton, and the payment by them and D. A. Hinton, committee, to Epes, administrator of F. C. Williams, deceased, of $3,152, the balance found due upon the lien on " Caskies." The administrator d. b. n. of D. G. Williams was not a party to the suit.

From this decree the Hintons appealed.

H. L. Lee and W. W. Gordon, for the appellants.

W. W. Henry, J. P. Fitzgerald and Friend & Davis, for the appellees.

OPINION

LEWIS, P.

The first objection, which relates to the refusal of the circuit court to appoint a guardian ad litem for the insane defendant, Anna O. Bland, on the motion of D. A. Hinton, her committee, is not well taken.

It appears that in 1863, a suit was instituted in the county court of Nottoway for a partition and division of the real and personal estates of Thomas P. and John E. Bland, deceased, to which the said Anna O. Bland, then of sound mind, was a party defendant. An order was entered appointing commissioners to divide the lands, who duly executed the order and reported their action to the court.

Subsequently, however, to-wit: in 1865, and without any further steps having been taken in the suit, the public records of the county were destroyed, and accordingly the bill filed at the February term, 1868, after setting forth, substantially, the foregoing facts, prays that the suit be re-instated, and that such relief be granted as the parties may be entitled to. It suggests the insanity of the defendant, Anna O. Bland, and the appointment and qualification of D. A. Hinton as her committee; and upon the filing of the bill the suit was re-instated.

The committee answered the bill, and not only was the suit re-instated, but, quoad the insane defendant, was in effect revived in the name of her committee. And the committee having been thus made a party, and there being no conflict of interest between the committee and the lunatic, the appointment of a guardian ad litem was unnecessary.

The powers and duties of committees of insane persons are in Virginia prescribed by statute. And by section 48 of chapter 82 of the Code of 1873 it is enacted, that " the committee of an insane person shall be entitled to the custody and control of his person (when he resides in the State, and is not confined in an asylum or jail), shall take possession of his estate, and may sue and be sued in respect thereto," etc.

Under this statute it was held in Bird's Committee v. Bird, 21 Gratt. 712, and in Cole's Committee v. Cole's Adm'r, 28 Id. 365, that a suit on behalf of the lunatic respecting his person or estate must be in the name of the committee, if there be one. And such, it would seem, is the general rule independently of statute.

Infants, says Judge Story, institute a suit in equity by their next friend, but they defend by a guardian, who is appointed by the court for that purpose. In respect to idiots and lunatics, however, the rule is different. The latter, he observes, " defend a suit by their committees, who are by an order of court appointed guardians ad litem, as a matter of course, in ordinary circumstances. But if an idiot or lunatic has no committee, or the committee has an interest opposite to that of the person whose property is intrusted to his care, an order may be obtained for appointing another person, as guardian ad litem, for the purpose of defending the suit." Story's Eq. Pl., sec. 70.

In Brasher's Ex'ors v. Van Cortland, 2 Johns. Ch. 242, which was a suit against certain persons who had been appointed a committee of a lunatic, to obtain payment of a debt due by the lunatic, it was held that it was not necessary to join the lunatic with his committee as a party defendant. " If he had been joined," said Chancellor Kent, " it would seem to be mere matter of form, and the committee would have been directed, as of course, to put in his answer as his guardians. It would have been their answer, though in his name. If he be made a defendant, he is to answer by his committee. * * Though the books speak of the lunatic as a proper party, yet I do not perceive its necessity."

It is only where there is no committee, or where there is a conflict of interest between the committee and the lunatic, that it becomes necessary to appoint a guardian ad litem for an insane defendant. At all events, such is the law of this State, since not only is the estate of the lunatic entrusted to the committee, but by the express provision of the statute the latter may be sued in respect thereto. And it was, doubtless, with a view to provide for the contingency just mentioned that the statute was passed, upon which counsel rely, which enacts as follows: " The proceedings in a suit wherein an infant or insane person is a party, shall not be stayed because of such infancy or insanity, but the court in which the suit is pending, or the clerk at rules, may appoint a guardian ad litem to any infant or insane defendant, whether such defendant shall have been served with process or not. The court may compel the person so appointed to act, but he shall not be liable for costs, and shall be allowed his reasonable charges, which the party on whose motion he was appointed shall pay." Code 1873, chapter 167, section 17.

This view is further supported by the provisions of section four, chapter 169 of the Code, which provides that a suit against a party who is insane may be revived in the name of the committee of such party, and thereafter proceeded in in the name of the committee. Here, no provision is made for the appointment of a guardian ad litem, and, doubtless, for the reason that the suit being continued in the name of the committee, whose powers and duties are prescribed by the statute already adverted to, no such provision, in the judgment of the legislature, was necessary.

We conclude, therefore, that the insane defendant was sufficiently represented in the suit by her committee, and that there was no error in overruling the motion for the appointment of a guardian ad litem.

The next objection is, that it was error to order an account to be taken to ascertain the liens on the real estate of which partition was sought by the...