Swope v. Swope , 173 Ala. 157 ( 1911 )

MAYFIELD, J.

William C. Swoope, a resident of Lawrence county, Alabama, died intestate February 17, 1907, leaving four minor children, Annia, Temple, Clay and Carter, as his sole heirs. He left a considerable estate in Alabama, Mississippi and Tennessee, but was largely indebted. Edgar C. Swoope, a brother of intestate and main actor in this suit, was appointed administrator of the estates in all three of the states, and guardian of the wards and their estates in Alabama. The letters of administration and guardianship were granted by the probate court of Lawrence county, Ala., and the estate of the intestate in Alabamaa was being administered in that court, as well as the estates of the wards. Annie, the oldest of the children, became of age October 26, 1908, and on the 29th of March, 1909, 18 months having elapsed from the granting of the letters of administration, she filed a petition in the probate court of Lawrence county to compel the administrator to make a. final settlement of the estate; and that court entered an order directing the administrator to file his accounts and vouchers for a final settlement.

The administrator appeared and filed objections, upon various grounds, to then making final settlement; and the consideration of his objections was several times continued by the court. While this proceeding was thus pending, the administrator filed a petition in the probate court, to sell lands belonging to the estate of his intestate, which petition was resisted by all the heirs. While both of these proceedings was thus pending in the court, the minors, acting- through Annie, filed a petition in the probate court, asking that the administrator, who was their guardian, be removed from the guardianship of their property. Soon after this, the administrator, acting- as next friend of the youngest child, filed in the chancery court of Lawrence county a bill against himself, as administrator and as guardian and the other children and heirs, seeking to remove the administration of the estate from the probate court'into the chancery court.

The administrator, as such, answered this bill filed by himself as next friend, made his answer a cross-bill against all the children including his ward, and sought to enjoin the proceedings in the probate court, instituted to compel him to make a final settlement of the decedent’s estate and of his guardianship of the children’s estate, and to remove the same into the chancery court for settlement there; and also sought an order of the court directing that all of the lands of the estate in Alabama be sold for distribution among the heirs. The children, including Carter,- the one for whom the administrator had filed the original bill as next friend, by their attorney and guardian ad litem, demurred to the original and cross-bills and filed a motion to dismiss same, setting up facts which were not stated in the bills, showing that the probate court had taken jurisdiction to finally' settle the estate of the decedent; and prayed the removal of the guardian, and that' he be required to make final settlement of his guardianship before the filing of the bill.

Probate and chancery courts are given concurrent jurisdiction of the settlement of estates of decedents, and the court first acquiring jurisdiction should be allowed to continue in the settlement unless (the case being in the probate court) some special reason arises for equitable interference. This is always true as to suits to remove, filed by the personal representative, or any person other than the heir, distributee, legatee or devisee. And, after the probate court has acquired jurisdiction for the special purpose of final settlement of the pending administration, there can be no removal into chancery at the suit of the heir or distributee except upon some ground of exclusive equity cognizance, or it be shown that the powers of the probate court are inadequaate. — Ligon v. Ligon, 105 Ala. 17 South. 89.

While the bill in this case is technically filed by one of the heirs and distributees, who is not required to show special equities as against the personal representative or creditors, yet, in fact, it is practically filed by the personal representative. While the infant is the real party in law, and the next friend is only the nominal party, yet it is the next friend — and not the infant— who decides upon the policy and the propriety of the litigation, and who selects and determines the course of the litigation, subject of course to the supervision of the chancellor. S!o far as the policy of propriety of maintaining this suit is concerned, it is and was determined by the personal representative, and not by .the infant heir.

The undisputed facts in this record show that the administrator was not a proper person to prosecute this suit as next friend for the infant, Carter. His interests in the whole matter were adverse and'antagonistic. As the next friend for the infant,, he files the bill against himself and others; and then answers his own bill and makes it a cross-bill against the complainant, his ward and client, and the other respondents to the original bill. The rights of the infant could not be properly represented and protected in such a proceeding.

While any one can act as next friend for an infant, in bringing a suit, and while it requires no permission or authority from the court to so bring such a suit, yet the court can and should revoke the authority of a next friend, when it appears — as it does in this case — that he is not a proper person to prosecute the suit, whether from incompetency or from having interests conflicting Avith those of the infant. — Barwick v. Rackley, 45 Ala. 218, 219; Douty v. Hall, 88 Ala. 168, 3 South. 315. See 5 Port.

It is said in Barwicks Case,, supra, that “on a proper application, Avhieh may be made by the infant, by a next friend, the general guardian, or any near relative of the infant, the court Avill institute an inquiry whether the suit is for the benefit of the infant, or whether it is for his interest that it should be prosecuted by the person named as next friend; and if, on such inquiry, it shall appear that the suit is not for the benefit of the infant, or that it is not for his interest that the suit should be prosecuted by the person named as next friend, in either case the court would order the proceedings to be stayed; and in the latter case will remove the next friend and appoint another in his stead.” Page 219, 45 Ala.

The facts in this case are similar to those of Dowty v. Hall, supra,, and some of the purposes of the bills in the two cases are the same. In that case, the court, speaking through Stone, C. J., after pointing out some other defects in the bill, said: “Nor should William Sand-ford be allowed to prosecute this suit as next friend of William Dowty. Their rights and interests according to the averments of the bill are antagonistic, and they should not be co-complainants.” — 83 Ala. 168, 3 South. 317.

For much stronger and more convincing reasons in this case, E. C. Swoope should not be allowed to prosecute this suit as next friend of his infant ward, when the suit is chiefly against himself, both as administrator and as guardian. This record presents the anomalous condition of one person instituting a suit in equity in two representative capacities. This condition appearing affirmatively on the face of the proceedings, the chancellor should not have allowed the suit to proceed as far as it has done. While there is no statutory inhibition against any one person’s acting as next friend for another, and while, as before said, the next friend is not the real party, yet it is incongruous that the same person should direct and conduct both the prosecution and the defense of the same suit in a court of either law or equity, no matter in what capacity he may appear. Especially is this true when such person is necessarily liable to the person whom he represents, as to both the subject-matter and the result of the suit.

It was not necessary in this case to institute any inquiry as to the propriety of E. C. Swoope’s representing the infant, Carter Swoope, as next friend, for the reason that the bill of complaint affirmatively showed that he was not a proper person. The interest of the next friend and that of the ward or client were directly conflicting as to all relief or redress sought by the bill. The chancellor should have at once removed the next friend, and appointed another in his stead. The chancellor in his opinion says that he will in the future substitute another next friend for the complainant if it is necessary; but he should have done this at once upon the first hearing. Some of the evils of this delay or failure are shown by the subsequent proceedings of the suit. The chancellor, of course, had to appoint a guardian ad litem to defend for the infant, Carter, as to the cross-bill filed against him by his friend and guardian. This guardian ad litem, who must be presumed to be impartial and to properly represent the interest of the infant, answered and demurred to the cross-bill. In this answer he denied all the facts set up in the original and cross-bills, which are claimed to give them equity. To further confuse matters, we find the guardian ad litem of Carter Swoope both denying and demurring to the original bill filed by Carter Swoope. This infant by one of his representatives' is affirming a certain state of facts, and by his other representative is denying these same facts and affirming the contrary. How can any court proceed correctly and certainly in such a state of the pleadings? How can the court properly protect the rights of such, infant when it is so represented?

While a next friend is any one who will undertake to prosecute the suit of an infant or person under legal disability, and is not, technically speaking, a party to the suit, yet he is a party within the contemplation of the statutes, and the practice of courts, as to the conduct of the suit. — Thomas v. Safe Deposit Co., 73 Md. 451, 21 Atl. 367, 23 Atl. 3.

The original practice as to the next friend seems to have been that'the next friend and the infant went before the judge at chambers, in person, or presented a petition to him, praying that the person intended be assigned by the judge as the infant’s prochein ami. The judge, if he thought the proposed person a proper one, issued a. fiat to the clerk, on which the clerk drew up a rule admitting such person to sue in the particular case mentioned, as the next friend. This ancient and formal practice, however, has become obsolete; and the next friend now sues in any case without previous permission of the court or of the infant. But the reason still exists that the next friend should be a proper person to prosecute the suit. He should be competent and should have the interest of the infant at heart, and his own personal interest should not conflict with or be opposed to the interest of the infant. It is just as necessary that a next friend should be personally disinterested in the result of the infant’s suit as it is that a guardian ad litem should be; the only difference of function being that the one prosecutes, and the other defends, for the infant. It is true that we have statutes regulating the appointment of guardians ad litem and none as to next friends; but the importance of having’ proper persons is no greater in the “one case than in the other. The statute as to the appointment of guardians ad litem prohibits even the suggestion of a person, as such, by the adverse parties or their attorneys. Code 1907, § 4484. When the law thus regards the rights of the infant, when defending, with such jealousy, surely it ought not to allow the prosecution of the infant’s rights to be conducted by the same person who is defending against such rights. That part of the original and cross hills which seeks to sell the lands of the estate of the intestate is wholly had and subject to the demurrers. There is no pretense that the sale is necessary to pay .the debts of the estate, but the contrary is alleged. In fact, the specific purpose of the sale is alleged to be a distribution among the heirs.

(5) The statutes authorizing the sale of lands of the estate of a deceased person as a part of the administration of the estate are sections 2619, 2620 and 2621 of the Code, respectively, as follows:

“Bee. 2619. * * Sale-for payment of debts when there is a will. — Lands may be sold by the executor, or by the administrator, Avith the will annexed, for the payment of debts, when the Avill gives no poAver to sell the same for that purpose, and the personal estate is insufficient therefor.

“Bee. 2620. * * Sale in case of intestacy. — In case of intestacy, lands may be sold by the administrator for the payment of debts, when the personal estate is insufficient therefor.

“Bee. 2621. * * Sale for division.- — Lands of an estate may be sold by order of the probate court having jurisdiction of the estate, Avhen the same cannot be equitably divided among the heirs or devisees, AAdien any adult heir or devisee files his written consent that the land be sold.”

Here it is not averred that the personal property is insufficient to pay debts, Avith out Avhich averment' and proof there could be no sale to pay debts. These statutes as to the administration of estates only authorize the land to be sold at the suit of the personal representatiATo, and not at the suit of an heir or legatee. Sales of lands are thus made as part of the administration of the estate. The original bill in this case professes to be filed by an infant heir against the person representative et al., and, of course, the infant heir in such bill cannot seek to have the lands sold for distribution. His right to maintain a bill for the sale of the lands in question would be under the statutes as to sales for partition, and not under those for the administration of the estate of the deceased person. While the cross-bill is by the personal representative, the proper party to sell lands of the estate, it shows no reason or necessity therefor, and makes no attempt to show that an adult heir or devisee consented to the sale, as is required by the statute, but, on the contrary, shows that the only adult heir was opposed, and objected to the sale. In other words, it seeks to have the lands sold as a part of the administration of the estate in express violation of the statute. It may be that, when the chancery court removes the next friend and appoints a suitable person to act in such capacity, such substituted next friend may not deem it to the interest of the infant to prosecute the main suit.

For the error in overruling the demurrers to the original and cross-bills, the decree is reversed and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, Anderson, Sayre, and Summerville, J. J., concur.