Rhett v. Mastin

PETERS, J. The facts of this case, so far as they are necessary to determine it in its present shape, are the following : On the 14th day of May, 1867, Mastín, the appel — 90 — lee in this court and complainant in the court below, filed his bill in the chancery court of Madison county, then designated the 29th chancery district of the northern chancery division of Alabama. The bill was filed by Mastín “as the trustee of the separate estate of Harriet Barnard, which was created by the will of David Moore, deceased, late of Madison county,” as complainant, against said Harriet Barnard, and her minor children, Martha P. Barnard and Catherine M. Barnard. No other persons are made parties to the bill. The bill alleges, among other things, that said Harriet Barnard was the daughter of said David Moore, deceased, and the widow of John P. Barnard, deceased ; that Moore, the father of Mrs. Barnard, departed this life in Madison county, in this State, in 1845; having made his will before his death, in which he directed that his estate, after payment of his debts, the portion of his wife’s and some special legacies, should be distributed among his children, by “ division to be made in equal portions and of equal value, as near as may be each one’s share.” This will bears date March 12, 1845 ; Stephen S. Ewing, George P. Beirne and William J. Mastín -were appointed executors. On the 8th day of April, 1845, Mr. Moore added a codicil to his said will, in which he directed that the property which is intended for his daughters, “ shall rest in and be held by ” his executors, or the survivor, “ in trust for the sole and separate use and benefit ” of his “said daughters respectively,” and on the death of any of my said daughter or daughters leaving children, the share of such daughter to be equally divided among her children.” And he appointed George P. Beirne and William J. Mastín guardians of his “children;” an office which it does not appear they accepted. The will of Mr. Moore, and the codicil to the same, were proven after his death, and admitted to record in the orphans’ court of the county of Madison, on the 6th day of October, 1845. Mr. Moore left at his death a very considerable estate, to be divided among his children. Mrs. Harriet Barnard’s share was allotted to her, and came into the possession of her husband, John P. Barnard, as the trustee of her separate estate. He held and managed it as such until his death) — 91 — on the 9th day of April, 1860; after which, on the 31st day of May, 1861, the complainant in the court below, said Mastin, was appointed by the Register of the chancery court of Madison county, trustee in the place of the said John P. Barnard, deceased, and thereupon he gave bond •and qualified as such, and took charge of said trust estate; that said Harriet Barnard was of the age of twenty-one years and upwards, and her said children, Martha and Catherine, were minors under fourteen years of age, living with their mother, said Harriet Barnard, and all residing in Madison county, in this State. The prayer of the bill, among other things not necessary to be set out in this opinion, asks “ that an account be taken and stated of the action of complainant as trustee, and in said account he be allowed the fees and charges which the necessities of the estate have required him to expend; ” also for authority to purchase with the trust funds, from Mrs. Barnard, a tract of land lying in Noxubee county, in the State of Misissippi, estimated to be worth $12,548; and for general relief. The facts alleged in the bill are not verified by any affidavit or oath. It is an unsworn bill. And “ each defendant is required to answer, without oath, all the paragraphs ” thereof. Summons requiring the defandants “ to appear and plead or answer,” in the usual form, were issued on the 14th day of May, 1867, and returned “executed by leaving a copy with Harriet Barnard,” on the 20th day of May, 1867, and on the same day the summons was served, Samuel H. Moore consented, in writing, to act as the guardian ad litem of the minor defendants, Martha and Catherine Barnard; and, thereupon, on motion of complainant’s solicictors, he was appointed by the register guardian ad litem for said infant defendants. It does not appear from the record that any affidavit of the facts of infancy, and ages of minor defendants, or any other proof of these facts, was offered or made, to authorize such appointment. If this was done it is wholly omitted from the record. On the 3d June, 1867, Samuel H. Moore, the guardian ad litem of the infant defendants, filed his answer to the bill for them. This answer admits the facts alleged in the bill, and states that “this defendant cannot interpose any objection — 92 — to the relief sought to be decreed by said bill.” On the same day Harriet Barnard, the other defendant, filed her answer to the bill, in which she “ says she believes the facts set forth in the several paragraphs of complainant’s bill to be true, and consents to the relief thereby sought to be decreed.” All the answers are put in without affidavit or oath of the truth of the statement of facts therein contained. After all the defendants had answered, in the manner stated above, the chancellor, at the May term of the court in which said bill was filed, on the 3d day of June, 1867, the same being a day of said term, made an order in said cause directing the register “ to state an account between the complainant (Mastín) as trustee and the defendants as cestuis que trust," in which, after stating the title of the cause, he uses this language : “ Came the parties by their solicitors.” The final decree makes a like recital in the same words. This decree is dated June 6th, 1867. On the 7th day of December afterwards, the complainant’s solicitors suggested to the court the marriage of Mrs. Barnard with R. Barnwell Rhett, and he is made “ a party defendant by consent.” The infant children of Mrs. Barnard, (the said Martha and said Catherine,) were deeply interested in the trust estate, which was very considerable; they took it in their own right on the death of their mother, who could not dispose of it in her life time. Then, there can be no doubt that these infant children were proper and necessary parties to this suit; and no right of theirs could be concluded or prejudiced by a decree in favor of the trustee in a proceeding like this, without bringing them before the court in the manner required by law. The sedulous care which the courts bestow upon the protection of the rights of persons, so helpless as minor children, is the result of the universal experience of its necessity; from their utter want of knowledge of the world and its devices, their tender age, their mental and physical weakness, and their readiness to confide in the fair promises of all who approach them as friends, they are rendered peculiarly helpless in the rigid and technical contestations in a court of justice. It is therefore sometimes said, that the very judge who is — 93 — clothed with the power to try the causes in which they may be parties, shall in certain cases be their guardian. But, even here, the law has not abated its vigilance in their behalf ; it has not been left to the chancellor himself to fix the mode in which he shall interpose his protecting power. The law has prescribed the manner in which the minor must be brought into court and make his defense, when it is necessary for him to be there ; and this prescribed mode must be pursued, or the court errs in the discharge of its high duty. A minor is not suffered to defend his interest in a suit in chancery, except by his guardian, and under our form of procedure, this guardian is most frequently a guardian ad litem.—Story, Ch. Pl., § 72; Milford, Ch. Pl. 124, top page; 1 Dan. Ch. Pr. (Perkins) 240, and note 2; Preston v. Dunn, 25 Ala. 507; Revised Code, p. 826; Chan. Rule 23. The rule prescribed for this purpose is laid down in the Bevised Code, in these words: “ No testimony shall be required of the infancy of a party suing or being sued as such; but before a guardian ad litem can be appointed for an infant defendant, an affidavit must be made as to the fact of infancy, and that the infant is believed to be under or over fourteen years of age; or if the facts are stated in a sworn bill, it will be sufficient, without any separate affidavit.” — 23 Buie Ch. Pr.; Bevised Code, p. 826. This rule is specific and fixes the manner in which the authority it bestows shall be exercised. This court can-not add to it, or take from it. It is positive and special, and negatives the performance of the act permitted to be done in any other way, or on any other ground, than that mentioned. This rule will become futile, if this is not the force given to it. The appointment of a guardian ad litem for an infant defendant in chancery must be made on affidavit of the fact of infancy, and that the infant is believed to be under or over fourteen years of age, or on sworn bill showing the fact of infancy and age of the minor, as required by the rule, and not otherwise. And it is error in the court to proceed to a final decree in a case where a minor is a party defendant and interested in the subject matter of the suit, without the appointment of a guardian ad litem for — 94 — him in this way.—23 Rule Ch. Pr.; Revised Code, p. 826; Roberi’s Widow and Heirs v. Stanton, 2 Munf. R. 129; Curtis v. Ellis, 3 Marsh. 761; Walker v. Hallett, 1 Ala. 379; 3 Port. 10; Revised Code, § 3484. The recitals in the chancellor’s order of reference and in the final decree, that the parties appeared by their solicitors, does not cure this defect, so far as the minors are concerned ; because they can not appear in that way, so as to dispense with the necessity of a guardian ad litem regularly appointed. To allow this, would be such a construction as to do away with the rule itself. The guardian ad litem in this case, was illegally appointed for the want of the required affidavit or sworn bill, and the minors were left undefended in the whole progress of the cause from the failure in that step to the end.—1 Ala. 379; 5 Ala. 158; 28 Ala. 265. As the decision on this point disposes of the case in this court, and renders a reversal necessary, further notice of the other questions made upon the assigment of errors, and insisted on in the brief of the learned counsel for appellants, is omitted. They will probably not arise again on a new trial, and if they do, will be settled by the chancellor in a proper manner. The final decree of the chancellor, and all the proceedings in the court below, from the service of summons, are reversed, and the cause remanded for a new trial. The appellee must pay the costs in this court, and retain the same out of the trust funds in his hands.