2 Paige Ch. 374 | New York Court of Chancery | 1831
The prayer of the petition in this case is perfectly reasonable and proper ; as it is pretty evident, that if these infants were all made defendants, and were compelled to put in answers by their guardians, in the usual manner, the expense would be more than the whole amount of their legacies, and probably more than the value of the land on which those legacies are charged. The only question is whether the revised statutes have taken away the power which this court formerly possessed, of directing a suit to be brought for the benefit of an infant, without any direct application from him ; or where he is incapable, from his tender years or otherwise, of presenting a petition. The second section of the title of the revised statutes, relative to proceedings by and against infants, (2 R. S. 446,) provides, that before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as the next friend for such infant, in such suit, who shall be responsible for the costs thereof. The third section directs the manner in which such appointment shall be made. Notwithstanding these sections do not in terms apply to suits where an infant is joined with an adult plaintiff, the appointment of a next; friend is as necessary to protect the rights of the' infant in the one case as in the other ; although in the latter case the defendant would have a remedy for his costs against the adult complainant. The fifth section, which authorizes the officer making the appointment to take security to the infant
On a careful examination of the statute, I am satisfied it Was not the intention of the legislature to divest the court of any of the powers it before possessed, as the general guardian of the persons and estates of infants ; or to prevent the chancellor in court from making an order for the. appointment- of a next friend of an infant complainant, or a guardian ad litem for an infant defendant, as had been usual before these statutory provisions were made. But this court has already decided that in the exercise of its power in this i’espect, it is proper .to conform to the spirit of'the statutory, provisions, so far as it may-be done consistently.with the forms of the court, and the convenience of suitors, and without unnecessary expense. (Knickerbacker v. Defreest and others, ante, 304.)
In this case it is proper that a suitable person should be appointed by the court for the purpose of joining in the suit With the adult legatees. - But the person proposed is the administrator, and may be a necessary party, to render an account of the personal estate; As it is possible- he may have to represent some interests, adverse to that of the infants, a different person must be selected as their next friend. Mr. McConihe, the solicitor for the .adults, is therefore appointed next friend of the, infants. It would be a. useless and unnecessary expense to execute a bond to each of the thirty infants in this ca'se. And as the premises must" be sold under. the direction of a master, if a sale is decreed, to pay the legacies, the court can control the fund without suffering it
