#### *Sillings & als. v. Bumgardner, Guardian.

July Term, 1852,

Lewisburg.

(Absent Lee, J.)

1 Suit to Obtain Possession of Ward’s Estate — How Brought.* — A guardian is not authorized to üle a bill in bis own name to obtain possession of bis ward’s estate, but must file it in tbe name of tbe ward by bis next friend.

2. Suit by Distributee to Obtain Share — Parties.†—In general one distributee cannot maintain a suit to recover bis distributable spare of the estate without making the other distributees parties.

3. Equity Practice — Amended Bills — Addition of Parties‡— Case at Bar. — A husband of one distributee who was also one of the personal representatives, and guardian of the other distributee, files a bill in his own name as guardian of the infant distributee, against the other personal representative and the sureties, charging that the personal representative was indebted to the estate and insolvent; and asking a decree against the sureties. There is a d ecree accordingly in the court below. Upon appeal the decree is reversed for want of proper parties; but the husband having an interest in right of his wife, the bill is not dismissed, but is sent back, that he may amend his bill and make proper parties.

In 1835 William A. Hanger died, leaving a widow Rebecca, and an infant son Robertson Hanger. At the May term of the County court of Augusta the widow, Rebecca Hanger, and Henry Imboden qualified as administratrix and administrator of William A. Hanger, and executed a joint bond with John Sillings and two others as their sureties. In 1839 John Bumgardner married the widow Rebecca; and in the same year qualified as guardian of Robertson Hanger. In 1843 he instituted a suit in equity in the Circuit court of Augusta county, in which he, describing himself as guardian of Robertson Hanger, was the only plaintiff, and the administrator Im*141boden and the three sureties were the only defendants; and in his bill, after setting out the foregoing facts, stated that the administration *accounts had been settled, in which there were considerable balances found against the said Rebecca and Imboden. That the widow had not been credited with her distributable share of the estate, and that Imboden was insolvent. And he asked a decree against the sureties for the amount found due from Imboden.

The sureties answered the bill; and several questions were made in the cause which were not decided by this court. The court below gave a decree in favor of the plaintiff against Imboden, and if the decree against him should prove unavailing, then over against the sureties. Erom this decree they applied to this court for an appeal, which was allowed.

G. N. Johnson, for the appellants.

Fultz, for the appellee.

*

Guardian and Ward — Suit to Obtain Possession of Ward’s Estate — How Brought, — For the proposition that a guardian is not authorized to file a bill in bis own name to obtain possession of bis ward’s estate, but must file it in the name of his ward by his next friend, the principal case is cited and approved in Burdett v. Cain, 8 W. Va. 288; Morrison v. Householder, 79 Va. 631.

See monographic *note*on “Guardian and Ward.” appended to Barnum v. Frost, 17 Gratt. 398.

†

Suit by Legatee to Obtain Share — Parties.—In Rexroad v. McQuain, 24 W. Va. 35, it is said; “While a legatee whose legacy has been consented to by the executor may sue the executor for It at law without joining the other legatees — Brown v. Ricketts, 3 Johns. Ch. 553 — still, where the fund out of which the legacies are to be paid proves insufficient or is subject to debts, which requires a proportional abatement from each legatee, all the legatees must be parties. Richardson v. Hunt, 2 Munf. 148; Sheppard v. Starke, 3 *Id.*29; *Sillings v.*Bumgardner, *9 Gratt. 273.”*

‡

Equity Practice — Amended Bills — Addition of Parties. — For the proposition that; where it appears that the plaintiff has an interest in the suit, but the proper parties are not before the court, the cause will be remanded and the plaintiff allowed to amend his bill, the principal case is cited and approved in the following cases: Coffman v. Sangston, 21 Gratt. 269, and *note:*Dabney v. Preston, 25 Gratt. 841, and *note;*Belton v. Apperson, 26 Gratt. 222, and *note;*Stewart v. Thornton, 75 Va. 221; Morrison v. Householder, 79 Va. 629; Keyser v. Renner, 87 Va. 250, 12 S. E. Rep. 406.

In Dower v. Church, 21 W. Va. 50, it is said: “The want of proper parties is always a good ground of demurrer, and it has been frequently laid down by the courts in very broad language, ‘that all persons materially interested in the subject of controversy ought to be made parties in equity: and if they are not the defect may be taken advantage of by demurrer or by the court at the hearing. ’ And also, ‘that where such defect is apparent on the face of the records, although the bill cannot be demurred to in the court below nor the' defect noticed by the court at the hearing, it will be noticed by the court at the hearing in the appellate court and the decree reversed for that cause.’ See Dabney v. Preston’s Adm’rs, 25 Gratt. 841; Armentrout v. Gibbons, 25 Gratt. 371; *Sillings*v. Bumgardner, *9 Gratt. 273, 275;*Richardson’s Ex’or v. Hunt, 2 Munf. 148; Sheppard’s Ex’or v. Starke and Wife, 3 Munf. 29; McCoy’s Ex’or v. McCoy’s Devisees, 9 W. Va. 443; Lyman v. Thompson, 11 W. Va. 427.”

MONCURE, J.,

delivered the opinion of the court.

Several very interesting questions were discussed in this case, which it will be unnecessary, if not improper, at this time to decide. Among other objections taken by the appellants’ counsel to the decree of the Circuit court is that of want of proper parties; which we are of opinion is fatal. The suit -was brought to recover of an administrator the distributable balance due by him. The only distributees were the widow and child of the decedent; and neither of them was a party. Both were necessary' parties. In general one distributee cannot maintain a suit to recover his distributable share without making the other distributees parties. Story’s Eq. Pl., *§*89; Richardson’s ex’or v. Hunt, 2 Munf. 148; Sheppard’s ex’or v. Starke, 3 Id. 29. So that if this suit had been properly brought in the name of either of the distributees, it could not have been sustained without making the other a party. But it is properly brought in the name of neither; and a fortiori, it cannot be sustained. If the appellee intended *to assert in the suit the claim of his wife as a distributee, he should have made her a coplaintiff with himself. If he intended to assert the claim of his ward as a distributee, the suit should have been in the name of the infant by his next friend, and not in the name of the guardian, even though he be described in the bill as “guardian of the ward.” A guardian is not authorized to file a bill in his own name to obtain possession of the property of his ward, but must file it in the name of the ward as his next friend. This was expressly decided by this court in the case of Lemon, guardian, v. Hansbarger, 6 Gratt. 301; and also by the Court of chancery of New York in the case of Bradley v. Amidon, 10 Paige’s R. 235. The wife was also a proper party, because she was one of the administrators and a co-obligor in the administration bond given by them.

But the counsel for the appellee contended that this objection, not having been made in the court below, now comes too late. But it was not waived in the court below; the want of parties appeared on the face of the bill; and in such cases it is well settled that the objection is fatal in the appellate court, though not taken in the court below. 2 Rob. Pr. 276, 433, and cases cited; Richardson’s ex’or v. Hunt, 2 Munf. 148; Sheppard’s ex’or v. Starke, 3 Munf. 29.

The decree must therefore be reversed for want of proper parties. But ought the bill to be dismissed, or the case remanded, and permission given to amend the bill and make the proper parties? In the case of Lemon, guardian, v. Hansbarger, 6 Gratt. 301, the bill was dismissed: and that would be the proper course in this case if the appellee had no further connection with, or interest in, the case than as guardian of the infant. A bill filed by a sole plaintiff having no interest whatever in the subject matter of the suit, must be dismissed. Bradley v. Amidon, 10 Paige’s R. 235. But *the appellee was otherwise interested in the case. He was interested as husband of one of the distributees, and was therefore a proper party to the suit. He should have joined his wife with him, who was also a proper party. But his omission to do so, though a defect, is not a radical one, and may be cured by amendment. It may be said that he sued in auter droit, as guardian and not as husband. But he cannot sue as guardian; and the words ‘ ‘guardian of Robertson Hanger, an infant under the age of 21 years, ’ ’ are mere descriptio personae, and do not change the personal character of the suit. It is only the individual suit of the appellee. The bill states a case and asserts a claim in which not only the infant, but the appellee and wife are interested. By striking out the descriptive words, and inserting the name of the wife, and that of Robertson Hanger, by his next friend if he be yet an infant, or making him a defendant, the defect of the bill would be cured.

We are therefore of opinion that the decree should be reversed, and the cause remanded in order that proper parties may be made, and further proceedings had therein.

Decree reversed.