Opinion
December Term, 1841.
1. On petitions for distributive shares, which are in the nature of proceedings in equity, an appeal for costs only will not be entertained except under very peculiar circumstances.
2. Where the guardian of an infant distributive sued the administrator of the estate the very day he was appointed guardian, and without any demand upon the administrator, and the administrator was guilty of no default, but promptly rendered an account, which was found to be correct: Held, that the guardian should pay the costs of the suit.
APPEAL from Manly, J., at Fall Term, 1841, of YANCEY, on a petition for a distributive share of the estate of George Byrd, deceased. George Byrd died in 1825, leaving surviving him a widow and nine children, and also six grandchildren, who were the children of Anna Griffith, a deceased daughter of the intestate. Of those grandchildren, four were infants in 1839, and for them a county court then appointed a guardian; and he, on the day of his appointment, and without any communication with or notice to the administrator, filed the present petition in the county court in behalf of his ward for an account of the personal estate of the intestate, George Byrd, and payment of the shares of the four infants. The defendant answered and showed a balance in favor of the estate of $211.75, due in December, 1826, of which one-eleventh part, or the sum of $19.25, belonged to Mrs. Griffith's children. The answer states that the defendant had always been ready to pay the shares of the said sum of $19.25 to which the four infants were entitled, but could not do so for the reason that no guardian had been previously appointed for either of them; and, therefore, the defendant submits whether he (73) ought to pay interest. In the county court there was a decree against the defendant for $26.83 1/2, from which the guardian appealed. Upon a reference in the Superior Court, a report was made in exact accordance with answer, except only that the clerk charged the defendant interest while the money lay in his hands. That made the share of all the children of Ann Griffith amount, on 11 October, 1841, to $35.96. Neither party excepted to the report, and it was confirmed, and a decree thereupon made that the defendant pay to the guardian that sum of $35.96, but that the guardian should pay the costs of the suit. From this decree the guardian appealed to this Court.
Francis for plaintiff.
No counsel for defendant.
Petitions for distributive shares are in the nature of proceedings in equity, and are governed as to the costs, as well as other matters, by the principles and practice of the court of equity. Ryder v. Jones, 10 N.C. 24. In general, it is the rule of that court, except under very peculiar circumstances, that an appeal will not be entertained for costs only. 2 Mad. Eq., 577. The reason is that in equity costs do not, as of strict right, follow the event of the cause, but are given in the discretion of the court, according to the circumstances and conduct of the parties in each case. On this ground alone the decree would be confirmed in the case before us.
But, besides, this case very fully evinces the soundness of the principles on which costs are given in equity; and that the decree here was a very proper exercise of the discretion of the court. The defendant is an administrator, a mere trustee, charged with no breach of trust and guilty of no default whatever. He interposed no obstacle in the way of the plaintiffs. He might have done so without an imputation in this case, since the petition does not make all the next of kin of the intestate parties, nor even the two adult children of Mrs. Byrd; and it would have been but a reasonable precaution to make the objection that they were not parties, in order to protect the defendant from the (74) expense and trouble of accounting a second time with those persons. But the defendant waived everything of that kind, and, without delay, rendered an account, which is found to be correct. Under such circumstances, the defendant ought not to be made to pay the plaintiff's costs nor even his own, but ought to be indemnified for his necessary expenses. Then the hasty institution by the guardian of a suit so entirely needless in the first instance, and the prosecuting of it by appeal from court to court form distributive shares so very small as these, indicate, altogether, that the guardian sought the office that he might vex the defendant with a litigation which he thought would be at the defendant's expense. The suit seems to have been wantonly brought and vexatiously pursued. It is to be observed, too, that the decree as it is does injustice to the defendant, inasmuch as it makes him pay to four of the children of Ann Griffith what was found to belong to all six. This we cannot now correct, forasmuch as the defendant submitted to it. But it furnishes another reason for not disturbing, but affirming the decree appealed from; which is done accordingly and with costs in this Court.
PER CURIAM. Decree affirmed with costs.
Cited: Lewis v. Johnston, 69 N.C. 394.
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