1 I. Our inquiry is as. to the right of G. F. Tucker, as next friend to H. L. Tiffany, previously adjudged insane, to. maintain this, .action. Section 2569 of the Code is as follows: “The action of a person judicially found to be of unsound mind, must be brought by his guardian, and, if he have none, the court or judge thereof, or the clerk, in vacation, may appoint one for the purposes of this action.” Section 2570 provides that defenses for such persons “must be by his guardian or a guardian appointed by the court to defend for him.” It will be observed that there is no provision here for bringing or defending an action by next friend for a person judicially found to be of unsound mind. Section 2565 provides that “the action of a minor must be brought by his guardian or next friend.” Appellant contends that because of the provision of section 2274, said section 2565 is applicable to insane persons as well as minors. Said section 2274 is as follows: “The provisions in this chapter, and all other laws relating to guardians for minors and *563regulating or prescribing the powers, duties, or liabilities of each and of the court so far as the same are applicable, shall be held to apply to guardians and their wards appointed under section two thousand two hundred and seventy-two of this chapter.” Said section 2272 is the one that authorizes the appointment of guardians for persons of unsound mind. It seems to us that the Section authorizing actions of minors to be brought by a next friend is not applicable to actions of persons judicially found to be of unsound mind. The fact that the provision-, as to- minors is omitted in section 2569 indicates quite clearly that it was not intended that actions of persons judicially found to be of unsound mind might be prosecuted by next friend, and this view of the statute is in harmony with the general current of authorities. In support of the rule that actions in favor of persons adjudged insane cannot be prosecuted by next friend, see Dorsheimer v. Roorback, 18 N. J. Eq. 438; Covington v. Neftzger (Ill. Sup.) 30 N. E. Rep. 764; Nichol v. Thomas, 53 Ind. 42. Appellant cites, in support of his right to maintain this action, Gates v. Carpenter, 43 Iowa, 152. That case simply hold's that, in an action by a guardian, wherein he alleges that he was duly appointed, the validity of his appointment could not be contested under a general denial. Johnson v. Janes, 41 Ga. 596, also cited, was a case of a minor. Foster v. Jones, 23 Ga. 168, was a defense by a guardian ad litem appointed by the court. Hinton v. Bland's Adm'r, 81 Va. 588, holds that it is only where there is no guardian, or where there is a conflict of interest between the guardian and a lunatic, that it becomes necessary to appoint a guardian ad litem for the insane defendant. In Thurston v. Cavenor, 8 Iowa, 156, it was held that, in an action of a minor by next, friend, the next friend- may be discharged and another substituted. Graves v. Graves, 36 Iowa, 310, also cited, *564holds that an action for alimony alone may be maintained. Appellant seems to rely largely on what is said by this court when disposing of the divorce case. 84 Iowa, 123 (38 N. W. Rep. 554). The question of the right of a next friend to maintain an action on behalf of one adjudged insane and under guardianship was not involved nor considered in that case. That case has no application to this, except a® it may go to show the defendant Worthington’s liability for the five hundred and ninety-five dollars and seventy cents paid under the decree of the district court. None of the authorities* cited by the appellant tend to support his right as next friend to maintain this, action. In Covington v. Neftzger, supra, it is said: “A person suing a¡s next friend has no authority to bind the lunatic or 'his estate. He is a mere volunteer, clothed with no authority from any court. He may be liable for costs, but he does not control the lunatic or his estate in any •manner whatever; and it would be a dangerous rule to hold that such a person might, at his own will or discretion, come into court for the purpose of impeaching a transaction in which he has no interest as a trustee or otherwise, and over which he has no control.” In Dorsheimer v. Roorback, supra, it is said: “The rule is a wise one. It should never be permitted that any volunteer, who, by styling himself the next friend of an idiot, brings suit for him, should lose or jeopardize his rights.”
*5652 3*564A reason for this distinction between minors and insane persons is that the latter, during insanity, have no disposing mind, and can do no act binding himself, while the former may, within certain limits, bind himself. Another reason why appellant should not be per*565mitted to maintain this action is that his petition fails to show any good cause therefor. Every ground for relief alleged' is clearly cognizable in the court of probate, in its supervision of the estate of H. L. Tiffany, and within its power to grant. If defendant Worthington is liable for the five hundred and ninety-five dollars and seventy cents, he will be charged therewith in his accounting to the court, and required to properly apply it. As to the decree making the monthly allowance for the support of H. L. Tiffany’s family, and for the sale of real estate for the payment thereof, there is no showing that it was not authorized and proper. Mrs. Tiffany’s petition for divorce being dismissed, she remains the wife of H. L. Tiffany, and with her family is entitled to support from his estate; and the disallowance of alimony in the divorce case does not bar her, or her family, from the' right to the support allowed. It is charged that this decree was obtained wrongfully, fraudulently and unlawfully; but these allegations are mere conclusions, without any statement of fact to support them. The court of probate has undoubted authority to require the defendant Worthington, as guardian, to proceed in the proper manner and with necessary dispatch in respect to any tax certificates held by him, and in all other respects to perform fully his duties as guardian. We are clearly of the opinion that the! demurrer was properly sustained and the judgment of the district court is affirmed.
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