Waring v. Crane & Canfield, 2 Paige Ch. 79

Waring v. Crane & Canfield

2 Paige Ch. 79 | New York Court of Chancery | 1830

The Chancellor.

If a bill is filed on behalf of an infant by his next friend, and the bill is dismissed or a decree is made in the cause before the infant is of age, he cannot be personally charged with the costs. They are to be charged against the next friend, unless there is a fund under the control of the court belonging to the infant, in which case the court may direct the costs to be paid out of that fund. (Taner v. Ivie, 2 Ves. sen. 466.) But the costs will not be charged on the infant’s estate, unless the court is satisfied the suit was brought in good faith, and with a bona fide intent to benefit the infant. (Pearce v. Pearce, 9 Ves. 547. Whitaker v. Marlar, 1 Cox’s Cas. 285.) In Turner v. Turner, (2 Peere Wms. 297,) the next friend died before a decree in the cause. After the infant became of age, he refused to proceed in the suit; and the bill was dismissed against him with costs. But on a re-hearing in that case, Lord King reversed his former decree as to the costs, and decreed that the infant was not liable therefor. (1 Strange, 708. 2 Eq. Ca. Abr. 238, S. C.) If the suit was improperly-brought, and the infant elects to abandon it when he becomes of age, he may apply to the court for a reference to ascertain the fact, and the bill will then be dismissed, with costs to be paid by the next friend. *82But although the complainant elects to abandon the suit when he is of age, he cannot, as a matter of course, compel the next friend to pay the costs. If the suit was properly brought for the infant’s benefit, he must , pay the costs of the next friend, and also those of the adverse party, when he applies to dismiss-the bill. (Anon. 4 Madd. R. 461.) If he elects to proceed in the cause after he is of age, the next friend is discharged from his liability, and the infant will be liable in the same manner as if the suit had been commenced by an adult. (1 Harrison, 474. Mitford, 26.) The only exception to this rule must be, the case that sometimes occurs, where a decree has been made' during his infancy, by which the infant’s rights are bound. There the suit cannot be abandoned, although it was not brought in good faith, and was against the interest of the infant. In such a case, if the infant applied in time, the court might compel the next friend to remunerate him for the costs and expenses to which his estate had been improperly subjected, although he was compelled to proceed under the decree. In this case, W. Waring became of age before the decree was made against the executors for an account. He afterwards elected to proceed under the decree, and took the management of the reference into his own hands. He has therefore affirmed the act • of his next friend in bringing the suit, and it is too late for him now to insist that it was improperly brought. . His proportion of the defendants’ costs must be charged on him personally, or be paid out of his share of the estate.

The situation of the next friend of the two complainants who have not arrived of age is different. If the suit was now in a situation to have the bill dismissed without prejudice to the rights of the infants when they come of age, I should be disposed to charge the costs upon their next friend, on the ground that the suit was improperly instituted by him, and without taking ordinary care to inform himself as to the facts. But some embarrassment now arises from the decree of April, 1827, under which the accounts of the defendants have been taken. By the will of the testator the defendants were trustees, both of the real and personal estate, until the youngest child became of age; and it was their duty to take care of *83it until that time, and then sell or divide it among the complainants. Instead of consenting to a decree for an account, and asking for the appointment of a receiver, they should have asked for a dismissal of the bill; to enable them to go on and execute the trust, and account to the heirs when they became of age. The report of the master upon that reference having been confirmed, that accounting, so far as it goes» must be considered final between the parties. But the defendants cannot take the legacies, which were evidently intended as a remuneration in part to them for the execution of their trust under the will, and abandon the trust* As they have been guilty of no misconduct or breach of trust they are entitled to the costs of defending this suit and of taking the account, to be paid out of the fund. The injunction must be dissolved and the receiver discharged; and he must account with and pay over to the defendants the balance, if any in his hands, and deliver to them all property which has come to his possession. In case of disagreement, his accounts must be passed before a master residing in the county of Jefferson. The decree must direct the defendants to proceed and execute the trust according to the directions of the will, and to distribute the property among the complainants when they become of age, respectively, retaining out of the share of each one third of the costs of this suit. It must reserve to the complainants the right to apply to the court for further directions as they shall be advised, if they cannot settle the estate amicably with the executors ; but the account, as far as it has been taken is to be conclusive upon both parties. The defendants are also to be at liberty to apply to the court from time to time as they shall be advised, for directions in relation to the execution of their trust; giving the usual notice of such application to the complainant who is of age or to his solicitor, and to the guardian of the infants. The right is also to be reserved to each of the complainants who are infants, at any time within six months after they come of age, and notwithstanding any acts done by them under the decree in this cause, to ap< *84ply to the court for such order and direction in relation to the costs, as between them and their next friend, as.may be just "