Roodhouse v. Roodhouse
24 N.E. 55
Ill.
1890
Check Treatment
Mr. Justice Scholeield

delivered the opinion of the Court:

This is a writ of error to bring in review a decree of the circuit ■court of Greene county, assigning dower in and making partition of lands whereof Peter Roodhouse died seized. The bill is filed by Harry W. Roodhouse and Benjamin T. Roodhouse, a minor, by Harry W. Roodhouse, his guardian, and prays the assignment of dower to the widow of Peter Roodhouse, deceased, and that the lands remaining be partitioned between the petitioners, his sole heirs-at-law. Commissioners were appointed, who assigned dower and made partition as prayed, and they reported their action to the court, and it was confirmed.

The only question that we think it necessary to consider is, whether it was error to partition the lands without having the minor represented by a guardian ad litem or a next friend. It is plain that the interests of the ward and the guardian were hostile, since what was given to the one was taken from .the ■other. We have held, that it is error to render a decree for partition of the property of a minor unless he is actually represented in court, either by a guardian, a guardian ad litem, or a next friend. (Cost v. Rose, 17 Ill. 276; McDaniel v. Correll, 19 id. 226; Rhoads v. Rhoads, 43 id. 239; Hall v. Davis, 44 id. 494.) Our statute, it is true, provides that an infant may petition, by guardian or next friend, for partition of lands; (Rev. Stat. 1874, chap. 106, sec. 3;) but, upon the clearest principle, this means, when such guardian or next friend is competent to act in the case; and a guardian whose interest is hostile to that of his ward, is incompetent to act for his ward in respect to that interest. Simpson v. Alexander, 6 Coldw. (Tenn.) 619; Parker v. Lincoln, 12 Mass. 16; Trustees v. McLendon, 43 Miss. 254; Wells v. Smith, 44 id. 296. The minor should either have been made defendant, and had a guardian ad litem, or have petitioned by his next friend or guardian ad litem, and been represented by counsel distinct from those representing his guardian.

For the error indicated, the decree is reversed, and the cause, remanded for further proceedings.

Decree reversed.