Clark v. Crosswhite, 28 Mo. App. 34

Clark v. Crosswhite

28 Mo. App. 34 | Mo. Ct. App. | 1887

Ellison, J.

This is an action begun in the probate court for an allowance against an estate. The claim is presented in the shape of a formal petition in which the cause of action is set forth. The case went to the circuit court on appeal.

The facts stated in the petition, and upon which the action is founded, are, that William Crosswhite was surety on a note for his son, John T. Crosswhite; that William, the father, died, leaving John T. and other children as his heirs; that soon, thereafter, the son, John T., died, leaving children as his heirs ; that defendant, C. D. Crosswhite, a son of William and a brother of John T., was appointed administrator of both estates. After his appointments the holder of the note presented and had it allowed agáinst the estate of William, the surety; which estate afterwards paid the allowance; that William’s estate has been settled up and the administrator discharged. The heirs of William Crosswhite, including the children of John T., but excepting C. D. Crosswhite, the administrator, join as plaintiffs in this action against their co-heir .as administrator of John T., to recover the sum so paid by William’s estate. It appears that the children of John T., who, as has been stated, are co-plaintiffs, had a guardian in the person of Fountain, and that he comes upon the scene and asks to be made a party defendant. It is so ordered. He thereupon files a demurrer to the petition, which was sustained, and the cause dismissed. It is here on appeal.

It thus appears that the heirs of William Cross-white (his children and grandchildren), except C. D., are suing the estate of John T., the brother of a portion, and the father of the remaining, plaintiffs ; that a portion of plaintiffs, as grandchildren and heirs of William, and who are minors, are suing the estate of their father, to which they are sole heirs, not only without the consent, but against the protest, of their guardian.

This presents a singular state of affairs. According *38to plaintiffs’ own theory, there is necessarily a defect of parties plaintiff, in that C. D. Crosswhite is not made a party plaintiff. He is one of the heirs, and as such is jointly interested in the claim, and, conceding the heirs to be the proper parties to bring this suit, should be a party to this proceeding. It is true he is a party defendant, but he is such only as administrator and merely as the representative of the estate. He should have been made a party plaintiff on plaintiffs’ theory, as he is a joint heir. But if he had been, such party plaintiff, he would be placed in the light of seeking an allowance against kims'elf as administrator. His own interest would thus conflict with his duty as administrator. Such allowance, if it had been made, would have been a nullity. State to use v. Bidlingmaier, 26 Mo. 483; s. c., 31 Mo. 95. An administrator cannot defend against a claim in which he is interested. It is against the statute, as well as the first principles of right.

The other aspect of the case is anomalous. Minor plaintiffs are not only plaintiffs without their guardian, but are suing such guardian as a party defendant. Infants must sue and defend, as is provided by the statute. By section 2579, Revised Statutes, the guardian must represent infants in all legal proceedings and sue for and defend their wards. Under the practice act (sects. 3469, 3480) guardians, or next friends, may be appointed for infants, but those sections do not apply when there is an existing guardian regularly appointed. Robinson v. Hood, 67 Mo. 660.

There are other views which might be presented, but it is sufficient to say that we can see no way in which the case can stand as presented. It is unnecessary to consider other points made on either' side.

The judgment is affirmed.

Philips, P. J., concurs. Hall, J., absent.