Temple v. Price

Scott, Judge, delivered the opinion of the court. This suit was begun under the revised code of 1845. The Srst section of the act concerning guardians in that code makes the father the natural guardian of his child. The seventh section of the same act empowers all guardians and curators to prosecute and defend for the minors in all matters committed to the care of such guardians and curators respectively, without further admittance in the several courts of the state. Natural guardians have the care and custody of the education, estates and persons of their wards, they giving bond and accounting as other guardians. (Sec. 1.) The seventh section of the 2d article of the Practice Act of 1845 made the guardian or next friend of any infant who commenced or prosecuted a suit responsible for the costs thereof. Now conceding that the natural guardian should give bond before taking possession of his ward’s estate not derived from himself, yet there is nothing showing that such bond had not been given. Moreover, the object of the suit is not to obtain possession by a natural guar [290] dian of bis ward’s estate. So far from it,, it seeks the appointment of a trustee who might manage it. But under our liberal practice in respect to parties, it does seem that it would have better comported with justice that the guardian should have been permitted to file a bond as guardian after the objection was taken. The defendants would have been in no Worse condition than before. They already had the personal liability of the guardian, and had the guardian executed a bond for the management of his ward’s estate, they would then have had nothing more. We see no force in the objection of multifariousness. If a trustee is appointed, the present constructive trustee must account to him or some other party for the rents and profits he has received from the estate. We see no useful or just end to be obtained by another suit after this is ended. If the present acting trustee has abused his trust, why should he not be required to hand over the trust fund, together with its rents and profits, to those who may be entitled to them in one suit ? There is nothing that we can see in the objection that there is a misjoinder of parties: all the parties to the suit have a direct interest in it. The other judges concurring, the judgment is reversed, and the cause remanded.