In re Flynn's Estate

Ostrander, J. (after stating the facts). The statute (1 Comp. Laws, § 534) requires an application for the sale of real estate of an infant to be made by the guardian of the infant, if there be one, and, if not, then by a next friend authorized to act as such by the court. There is the proviso that, if the application be made by an infant — as distinguished from an idiot or lunatic — the appointment of a next friend shall be made on his petition, but, before authorizing a next friend to act for him, the court shall require proof that the parents, or other near relatives if he have no parents, have knowledge of the intention to make such application. And, unless it appears that “ such persons have knowledge of such intention, may direct notice of the application to be given to such guardian, parents, or other relatives.” It appears that, in conformity with the statute, the infants petitioned for the appointment of a next friend. The person nominated was father of three of the infants and was stepfather of the fourth, who is the appellant. It does not' appear that he was either guardian or near relative of the appellant. The inference drawn from the record is that he was neither. Therefore, before authorizing any one to act as next friend for her, the court should have required proof that her parent, if she had a father, or her near relatives, if she had any, had knowledge of the intention to make the application. And we construe the statute as requiring this proof to be matter of record, at least by recital, as requiring the fact to appear affirmatively. The general jurisdiction of courts of chancery in respect to infants, their persons, and estates is not the jurisdiction which was invoked or was exercised. The proceeding is a special one. As has been pointed out, [141] the statute limits the power of the court in appointing a next friend. If there was no next friend appointed pursuant to law, there was no valid application for a sale of the real estate, so far as the interest of appellant therein is involved. As jurisdiction to order the sale does not appear, the sale, as to the appellant, was ordered and made without authority. The statement in the report of sale that appellant received $100 of the. proceeds of the sale after she was 21 years old, and the fact that considerable time elapsed after she became of full age without action on her part, if it is a fact, is the only evidence that she acquiesced in or approved the action of her stepfather after attaining her majority. The purchaser at the sale knew that she was purchasing from a special guardian, and is presumed to have had knowledge of the proceedings. Re Petition of Axtell, 95 Mich. 244, 248 (54 N. W. 889). While it may be true that appellant has money derived from her special guardian for which she should accQunt to some one, we percálve no legal ground for holding that she is, upon this record, estopped to object to a confirmation of the sale. Of the four infants whose interests, are affected by the sale, May Williams alone has attained majority. We cannot consider the recital in her notice of appeal that she is guardian of the other, or any of the other, infants. We regard her as the sole appellant. It is not necessary to discuss other objections which are urged. We feel obliged to set aside the order of confirmation, and it is so ordered. Appellant will recover costs of this appeal from the appellee. Moore, C. J., and Steers, MoAlvay, and Brooke, JJ., concurred. Blair, Stone, and Bird, JJ., did not sit.