Baltimore & Potomac Railroad v. Taylor
6 App. D.C. 259
D.C. Cir.
1895
Check Treatment
Mr..Justice Morris

delivered the opinion of the Court:

There seem to be five questions raised by the appellant: 1st. That the suit should have been instituted by and in the name of the guardian, and not in the name of the children themselves, by their next friend; 2nd. That the side track complained of was a lawful structure, and that the use of it was lawful, and therefore no recovery could be had 3d. That the widow, Anna W. Taylor, had a right of dower in the injured property, and the plaintiffs therefore were not entitled to recover for more than two-thirds of the rental value; 4th. That the plaintiffs, under their declaration, were not entitled to recover for more than twelve months, and under their proof, for more than five months ; 5th. That the defendant should have been allowed to introduce in evidence the record of the condemnation proceed-^ ings under which the company acquired the property in 1892. Only two of these, the first and second, are strenuously insisted on by the appellant.

I. At first sight, at least, it seems to be a rather novel and startling proposition of law that any person, who has both the legal title to property and its beneficial ownership, should not be entitled to bring suit for injury to the usufruct of it. It is not contended that minors may not, by next friend, institute suit in ejectment for the recovery of real estate, or any other suit proper or necessary to pre7 serve the property or to insure its usefulness. The claim is, that as a guardian is entitled to take possession of real estate and collect the rents and profits for the benefit of his ward, and is given by law the right of control and management of it, as well as the right to execute leases, releases, receipts and acquittances, therefore he, and not the ward, is the proper person to bring suit for the recovery of rent, and for injury to the rental value. The motive for this contention, the appellant does not hesitate to avow, consists in the fact that the statute of limitations may be available against a guardian, as claimed by counsel, while it is unavailable against minors.

*269Originally at the common law a minor could not maintain any suit; for he was disqualified by his minority from binding himself by any legal act. But it was very early settled that he could sue by guardian; and the statute of 13 Edward I made him competent to sue by next friend. Since that statute there never has been any question as to the right of a minor to sue, either by guardian or by next friend, as the case may be, in any matter whatever in which suit might be maintained by an adult. And it is quite clear that in this is included the right to sue for diminution of the rental value of his own property, unless there has been some statute by which that right has been denied to him and his guardian has been substituted in his place. We fail to find any such statute.

The rights of guardians in this regard should not be confounded with those of executors or administrators, or, in some cases, trustees and receivers. These have a legal title in them, and as to all the world except their beneficiaries, the right of absolute ownership. There is neither legal title nor ownership of any kind in guardians. What they do, they do in the name of their wards, on their behalf, and for their sole and exclusive benefit. A case- has been cited, Smith v. Williamson, 1 H. & J. 147, in- which a father, as the natural guardian of his minor child, was held entitled to maintain replevin. But any person may maintain replevin and trover who has a present right of possession; and undoubtedly a guardian has the right of possession of the personal property of his ward. A guardian is no more than a custodian. He is a custodian both of real and of personal property, as well as of the person of the minor. As the, custodian of personal property, he may, in his own name, bring any suit that has reference merely to the question of custody or possession. But neither in reference to personal property nor in reference to real estate should he bring suit in his own name, where the question of right or title is involved; for he has neither right nor title in the premises. The right and title are in the ward; and it is *270proper always and in all cases to bring suit in the name of the ward. Guardianship in socage has never existed in the District of Columbia, and cannot exist under our law to direct descents; and whátever may have been the rights of a guardian in. socage, a general guardian appointed under statute cannot possess them, unless they are given by the statute. As we have said, we find no provision in any statute law in existence in the District of Columbia that either expressly or by necessary inference gives a guardian the authority to sue in his own name for injuries to the rights of his ward. A certain specific power to sue in a certain case (Act of Maryland of 1729, chap. 24, sec. 7), or the power to execute conveyances of the ward’s estate in certain specified cases (Rev. Stat. for D. C., sec. 651), cannot be construed to give general and unlimited authority to bring suit. The inference would rather be to the contrary.

We have no doubt that, except in some particular cases, such as those to which we have just referred, the rule is universal in the United States, that suits with respect to the property of a ward, where recovery is sought for his benefit, must be in the name of the ward, and not in the name of his guardian, unless statutoiy authority is given to the latter to so institute the suit, and the only point as to which there may be doubt or controversy is whether the suit should purport to be by a guardian or by next friend. It does not seem to us that it is of much consequence which way it is brought, as the court will have power to direct a change from the one to the other, as occasion may require, both being officers of court for the purpose of such suits. French v. Marshall, 136 Mass. 556; Riggs v. Zaleski, 44 Conn. 121; Thomas v. Dike, 11 Vt. 273; Bradley v. Amidon, 10 Paige, 239; Stafford v. Roof, 9 Cowen, 626; Hoare v. Harris, 11 Ill. 24; Fox v. Minor, 32 Cal. 112; Deford v. Keyser, 30 Md. 179; Mayer v. Norman, 4 Md. 352. Three cases are cited to the contrary, two of which have apparently been overruled; and the other is based on a special statute.

*271There is no danger, it seems to us, that the difficulty will arise, which is apprehended by counsel for the appellant, that, for the same cause of action, a defendant might have to respond to two suits, one by the guardian and the other by the ward. When there is a recovery in a suit instituted by or in the name of the true beneficiary, there is no danger that any court will permit another recovery in the name of a merely formal party, who has no real interest in himself. Nor is there any danger that the act of a guardian, performed within the sphere of his duties, will not be given its full and proper effect in any proceeding instituted by or in the name of the ward. The act of the guardian so performed is the act of the ward, and can be shown against the ward in any proper proceeding.

We are of opinion, therefore, that this suit was properly instituted in the name of the minor children who have been made the plaintiffs in it, and that it is not objectionable because instituted by next friend, instead of by guardian.

2. The appellant’s second proposition is that the side track complained of is, or was, a lawful structure, and that it was lawful for the appellant to maintain and use it, and that for such maintenance and use the plaintiffs are not entitled to recover damages. In view of the explicit decisions of the Supreme Court of the United States in the cases of the District of Columbia v. Baltimore and Potomac Railroad Co., 114 U. S. 453, and Fifth Baptist Church v. Baltimore and Potomac Railroad Co., 108 U. S. 331, where this precise question was expressly involved, and decided adversely to the contention of the appellant, we cannot suppose that the question is now open for discussion.

3. The third proposition advanced by the appellant is that the plaintiffs at the utmost are not entitled to recover for more than two-thirds of the rental value of the property, inasmuch as the widow, Anna W. Taylor, is entitled to the other third part, as it is claimed, in consequence of her supposed dower interest. We think this proposition likewise to be untenable.

*272Dower interest unassigned is a matter between the widow on the one side, and the heir, devisee or holder of the property on the other. Third parties have nothing to do with it. The widow cannot look to them, but to those entitled to the property, for the enforcement of her rights. When dower is assigned, the widow becomes the owner for life of the property assigned, and is, of course, entitled to sue in her own name and right in respect of the rents and profits of such property. But when dower has not been specifically assigned, and it is satisfied only through the receipt of a share of the rents and profits, that share must be received from or through the holders of the inheritance. The widow has no right at law to proceed for it directly against tenants. Nor is it proper that she should be joined as party with the heir or the holder of the inheritance in a suit at common law to recover rents or damages for impairment of rental value. 4 Kent’s Com. 61.

Again: the contention, of the appellant is, that in the present instance.the widow is entitled to dower for the reason that Hunter Taylor, her deceased husband, received an estate in fee simple by the devise from his father, under the operation of the 'rule in Shelley’s case. But there was no such dower interest created by the will or resulting from it. Assuming that, by the rule in Shelley’s case, the limitation of the estate to the heirs of Hunter Taylor gave a fee simple to him, yet the limitation is of a contingent. estate merely, to take effect and to become vested only in the event that he left no children; and, as he did leave children, the contingency never occurred and cannot now occur, and the estate can never vest. The estate is absolutely gone, and with it all possibility of a dower interest in his widow. Moreover, it could not be construed in any event to operate so as to cut out the intervening estate to the children.

4. The appellant’s fourth proposition to the effect that the appellees are restricted by their declaration to a period of twelve months, and by their proof to five months out of *273those twelve, as the time for which only they can recover, is based upon a misunderstanding of the plaintiff’s declaration. That declaration claims damages for a diminution of the rental value of the property for fifteen years; and among the items of loss is mentioned the fact that on one occasion, in consequence, as alleged, of the unlawful action of the appellant, the property remained wholly unoccupied for twelve months, shown by the proof, as it is said to have been only for five months. But this plainly was alleged only as one item of damage, and not all for which claim was made. The court below undoubtedly was right in declining so to limit the right of recovery.

5. The appellant’s fifth proposition, that it was error in. the trial court to refuse to admit in evidence the record of the condemnation proceedings under which, in 1892, the appellant acquired the property in question, requires no consideration from us. That record was plainly irrelevant under any theory of the law of evidence.

We find no error in the record of this cause; and we are of opinion that the judgment of the court below should be affirmed, with costs. And it is so ordered.