Opinion
09-25-1877
SNAVELY v. HARKRADER & als.
Crockett & Blair and C. B. Thomas, for the appellant. W. H. Bolling, for the appellees.
Absent, Moncure, P., and Anderson, J.
I. Infants by their next friend file their bill against their guardian, first to surcharge and falsify the settled account of their guardian, and to have him removed; and second, to have a sale of their lands. The guardian demurs to the bill, on the ground that it is multifarious--HELD: That, as the court cannot sell the infants' land on a bill filed by them, and no relief on that part of the bill can be given, the court will consider the case as if that part of the bill was not in it; and the demurrer was properly overruled.
II. Pending the case, some of the plaintiffs come of age, and they all unite in an amended bill asking the same relief against the guardian; and the plaintiffs who have come of age ask for a partition of the land and a sale of it, on the ground that it cannot be divided in kind without injury to all. The guardian demurs to the amended bill on the same ground--HELD: The court cannot decree a partition and sale of the land on this bill; and therefore it will be treated as if this part of the bill was not in it; and the demurrer was properly overruled.
III. Pending the suit all the plaintiffs go off to their relations, in the state of Illinois, and one of these qualifies in that state as guardian of the infants; and they then amend their bill, stating these facts and filing a copy of the proceedings in the Illinois court with a copy of the guardian's bond, and asking that their property may be turned over to their Illinois guardian. The account of the guardian having been settled, showing the amount due to each of his wards, the cause came on to be heard, when the court made a decree removing the first guardian, and that he should pay over to the Illinois guardian the amounts severally reported to be due to his wards--HELD:
1. Under the large discretion vested in the courts in the appointment and removal of guardians, and the circumstances of this case as developed by the evidence, the court did not err in removing the guardian.
2. It was error to decree the payment of the money of the wards to the Illinois guardian, without proceeding in the mode prescribed by the statute. Code of 1873, ch. 125, § 5.
3. The Illinois guardian may file his petition in this cause for the removal of the personal property of his wards, and the proceedings prescribed by said statute may be had therein.
4. The sale or partition of the infants' land cannot be made in this case; but the proceeding to effect this object must be as prescribed by the statute. Code of 1873, ch. 124, §§ 2 to 8.
IV. A guardian who receives the money of his wards and does not invest it, but retains it in his own hands, is to be charged interest thereon from the date of its receipt, and not from the end of the thirty days allowed by the statute to the guardian for making investments.
V. A guardian receiving from the administrator of the father of his wards, his own bond bearing twelve per cent. interest, as a part of his ward's estate, and not investing the same, is to be charged the same rate of interest upon it to the termination of his guardianship.
VI. In the stating of a guardian's account, his commissions on the money received by him should be credited at the time of the receipt of the money, and interest only charged on the balance.
This case was argued at Wytheville and decided at Staunton.
In October, 1871, James H. Harkrader, of the county of Wythe, died intestate, leaving seven infant children, the eldest of which, Frances E., was non compos. His wife had died a year or two before him. He was an industrious and successful farmer, owning two small tracts of land near to each other, on one of which he lived. He had kept his children with him, and expressed a strong wish that they should be kept together. B. D. Harkrader, the brother of the deceased, qualified as his administrator, and Dr. Aaron Snavely qualified as guardian of the children, and committee of Frances. The administrator sold the personal property; and there being very few debts, he paid these, and transferred the bonds taken at the sale made by him, as well as bonds held by his intestate at his death, and some money, nearly all of it in specie, to the guardian; the whole amounting to near $5,000.
Dr. Snavely employed B. D. Harkrader to live on the farm and take care of the children. He remained there about a year, and when he removed to Illinois, the children continued to live on the farm under the care of a young woman who had lived in their father's family for a year or two before the death of their mother, and had continued to live with them. Dr. Snavely cultivated the land on his own account; and on the settlement of his accounts before the commissioner, he was charged for the rent at the rate of $300 for the first year, and he was allowed for the board of the wards at the rate of four dollars a month for each of them. This account came down to January, 1873, and included no charge to the guardian for interest on the bonds or money turned over to him. The money and some of the bonds were received in January, 1872, and the others in October and November of the same year. Among the first was Dr. Snavely's own note, which with interest at twelve per cent. amounted to $224, and among the last was his note for $1,416.75, for articles bought at the sale, principally of furniture and other articles about the premises, and left there for the use of the family.
In August, 1874, the seven children of James H. Harkrader, all of them infants but Frances E., who was non compos, by their uncle and next friend, Henry E. Harkrader, instituted a suit in equity against Dr. Snavely, their guardian, and his sureties. In their bill they seek to surcharge and falsify the account settled by the guardian. Among other objections to the account is one to the charge for board. They say they were required to work on the farm for their guardian, and he certainly was not entitled to charge more than the actual cost of their keeping; and that they should be allowed to set off against any such charges what their services were reasonably worth. They also object to the rent of $300. They say the rent was fixed by men of his own selection, and that the valuation was made under the impression of these valuers that the guardian would not charge board for his wards. There are other objections to charges for small sums, which it is unnecessary to mention. They pray that the account of the guardian may be settled, that he may be charged a fair rental value of the lands; that in view of the gross mismanagement of their estate and care of his wards, the guardian may be removed, and that their uncle, H. E. Harkrader, might be substituted as their guardian.
The bill states that Charles D., one of the children, had been taken by their said uncle to his home in Illinois, with the consent of Dr. Snavely, and that Robert C., another of them, had gone to Illinois to his said uncle, who had duly qualified as their guardian. And they unite with the plaintiff, Frances E., in asking for a sale of the real estate for a partition, since the lands are incapable of partition in kind, and they believe that it will be greatly to the interest of all of them that the land should be sold.
Snavely demurred to the bill, and also answered. He denies that he ever required his wards to work upon the land; and he says that when the boys were not at school he gave them regular wages for labor they did perform for him. He says that in considering the estate, instead of renting out the land to the highest bidder, with the great deterioration of value which would follow from that course, he thought it better to keep the land himself, give it proper attention and pay for it a reasonable rental, as he did; that the rent charged to him was its full value, and the property had been kept up better than when he received it; and he insists that the persons who fixed the rental were good judges of the value of said land; that he allowed $350 the second year; that the reason why his wards were brought in debt to him the first year was, that the personal property was sold on twelve months' credit, and no interest came to his hands during that year. He replies to the specific charges made by the bill as to items in the account. He insists that this uncle and next friend is a very unfit person to be the guardian of these children; and that the lands are capable of easy partition, and a sale is neither necessary or proper.
An immense amount of testimony was taken by both parties, and of course it was contradictory and differed widely as to a fair rent for the land. It is but just to Dr. Snavely to say, that every witness who spoke of him, spoke highly of him as a man of integrity, and there was no question but that he, and certainly he and his sureties, were amply responsible for all the estate in his hands. It appeared that he did not invest all the personal fund in his hands, including the amount he himself owed to James H. Harkrader at his death, and his purchases at the sale made by the administrator, but retained it as a borrower.
The cause came on to be heard on the 24th of December, 1874, when the court overruled the demurrer and directed a commissioner to take an account of the guardianship of the defendant, giving him instructions as to the mode of charging the guardian for the moneys received by him. And as to the real estate, it was directed that if, from the evidence, the commissioner could estimate the profits derived by the guardian from the real estate of his wards, above expenses and permanent improvements, to so charge him; and if not with the full rental value thereof to be derived from the evidence. And the court being of opinion that the guardian was entitled to demand reasonable labor of his wards and to charge them for board, directed the commissioner to so conform his account. " And the court being further of opinion that the errors of the account have not been intentionally made by the guardian, and that cause has not been shown, doth decline to remove him."
In February, 1875, Commissioner English returned his report, bringing down the guardian's account to January 1st, 1875. To this report both plaintiffs and defendant excepted. The plaintiffs, among other things, excepted: 1st. Because it did not charge the guardian annually with $200 for excess of his estimated profits from the use of his wards' lands beyond his expenses on their account. And they insisted the evidence would enable him to make the estimate. And 2d. Because in every case of receipt by the guardian the commissioner allows him thirty days for investing, and during this thirty days charges no interest against him. And they insisted that such a rule applies only where the fiduciary shows he has made an investment, and never applies when he leaves it to be understood that he has used the money himself.
The defendant excepted: 1st. Because he had been allowed but four dollars a month for the board of each of his wards. 2d. Because the guardian, being entitled to five per cent. on receipts of money of his wards, when the same came into his hands, the commissioner does not deduct guardian's commissions as of the date of receipts of funds, but charges him interest on the whole after thirty days from the date of receipts to the end of the year and then deducts commissions. 3d. Commissioner charges guardian $500 a year for rent of wards' lands. This is more than the average estimate of plaintiffs' witnesses, over $200 a year more than the average estimate of defendant's witnesses, and more than $100 per year over the average estimate of both together; the rent charged being about ten per cent. on the assessed value of the land. There were other exceptions by both parties which need not be stated.
The cause came on to be heard on the 22d of December, 1875, when the court sustained the second exception above stated of the plaintiffs, and overruled all others, and sustained the second and third exceptions above stated, of the defendant, and overruled the first. And the report was recommitted, with directions to reform the same accordingly, and to fix the annual rent of the lands at $400. And in January, 1876, the commissioner returned his report reformed, as directed by the decree; and to this report there was no exception.
It appears that after the decree made in the cause in December, 1874, in which it was held that the guardian should account for the profits derived from the cultivation of the land, if such an account could be taken, the guardian employed a manager and cultivated the land for his wards, keeping an account of expenses, and in October, 1875, he rented out the land at public out-cry. He submitted these accounts to C. B. Thomas, the commissioner of accounts for the county, who returned his report to the county court in June, 1876. This account embraced the transactions for the year 1875, and made the expenditures of the year, for each ward, considerably more than the profits.
The plaintiffs excepted to this report on the ground that the guardian had been a renter of the land himself from the time he took possession of the estate as guardian in September, 1871, his rent commencing in October, and he had been held by the decree of December, 1874, accountable as such lessee, and having held over after the 1st of October, a new year had commenced and he had no right, to the prejudice of the plaintiffs, to change the mode of holding the land on the 1st of January following.
In August, 1876, the judge of the county court being counsel for the plaintiffs, and the commissioner counsel for the defendant, by consent of parties the said settlement was removed to the circuit court, to be considered as a part of the cause pending in that court.
On the 23d of September, 1876, the cause came on again to be heard, when the court confirmed the recommitted report of Commissioner English, sustained the exceptions of the plaintiffs to the report of Commissioner Thomas and committed that report to Commissioner English, with directions to restate the same, in conformity with the instructions under which his own report above affirmed was made, charging the guardian the same rent for the lands, whilst he was not receiving rent from others, as was charged in the report above confirmed. And it was further ordered that Aaron Snavely, guardian and committee as aforesaid, do, within thirty days, file in the clerk's office, among the papers in this cause, to be used before the commissioner in retaking said account, a statement in writing, under oath, showing in detail what several investments he has made of the moneys of the plaintiffs which have come to his hands, in what several sums, at what several dates, at what several rates of interest, and on what several securities. And since it appears that the plaintiff, Robert C. Harkrader, has attained full age since the last order in this cause, and has given H. E. Harkrader, the next friend in this cause, a power of attorney to demand and receive from said Snavely any moneys due from said Snavely to said Robert, and it also appears that said H. E. Harkrader has duly qualified as the guardian of the plaintiff, Charles D. Harkrader, in the courts of the commonwealth of Illinois (where the said Charles has been residing since this suit commenced), and has filed a certified copy of the bond there taken of him as guardian, it is further * * decreed that said Snavely pay over to the said H. E. Harkrader such several sums of money as are ascertained by Commissioner English's report, above confirmed, to be due from him to said Robert and Charles respectively; and so soon as the report hereby recommitted to said commissioner is confirmed, pay over to said H. E. Harkrader such further sums as by said report may appear to be due to said Robert and Charles respectively, said several payments to be made to said H. E. Harkrader in his character as attorney for said Robert and Illinois guardian of said Charles respectively. And all other questions were reserved.
In September, 1875, all of the plaintiffs who were then in Virginia went off to Illinois; and H. E. Harkrader was there appointed the guardian of the infants, and conservator of Frances; and executed a bond in the penalty of $14,000 as such guardian, with security satisfactory to the court there.
In November, 1876, the plaintiffs, the infants, by their guardian and next friend, H. E. Harkrader, and Frances by the same next friend, filed their amended bill in the cause. They state that finding their condition with their guardian beyond adequate remedy otherwise, even by the aid of this court, they have quitted him, and repaired of their own motion to their friends in Illinois, and there have since continued and now are resident; and that H. E. Harkrader had qualified as the guardian of the infant plaintiffs. They charge that Snavely instead of waiting to give the plaintiffs the option provided by the decree, of taking an account of the profits or a rent of the land, has gone out of this court where his accounts were pending, to settle his account in his own way, and so as to charge his wards with a large pretended loss by the report of the county commissioner of accounts, who is at the same time his counsel in this cause. They charge that the conduct of said Snavely evinces such a state of mind towards the plaintiffs, and such incompetency in the management of their lands as to unfit him to be their quardian, and they ask for his removal, and that their property may be turned over to their said uncle and next friend.
Robert C. Harkrader, who was of age, Charles D. Harkrader, who had been taken to Illinois by H. E. Harkrader in 1874, probably with the consent of Dr. Snavely, and for whom H. E. Harkrader had been appointed guardian in that state, and Frances E., further show to the court that as they are advised, they are entitled to a partition of said lands, if the same can be conveniently made, and possession of their shares of the same, or in default of such partition and in case none of those interested would be injured thereby, to a sale of the entire lands and distribution of the proceeds; and that a partition of said lands cannot be conveniently made, whilst a sale will be in all probability highly advantageous to all of them. They therefore pray for such sale, and that their estate may be placed in a condition to be transferred to the state of Illinois, to which they have already gone; and for general relief. They file with their amended bill the proceedings in the Illinois court on the appointment of H. E. Harkrader, the guardian of the infants, and a copy of his bond.
Snavely demurred to, and answered the bill. He says it is true that the plaintiffs are now in the state of Illinois; but it is not true they repaired thither of their own motion; but their removal was accomplished through the fraud and contrivance of these childrens' next friend, Henry E. Harkrader. He says there are no facts developed in the cause since the decree of the court refusing to remove him as guardian, which would justify the court in reversing said decree, and appointing H. E. Harkrader. On the contrary he thinks that the conduct of said Harkrader, as it develops itself from day to day, only the more shows his unfitness for the position.
With reference to the settlement of his account before Commissioner Thomas, he says he acted in perfect good faith and in accordance with the construction placed upon said decree by his counsel. That he did not continue to occupy the land, but as soon after said decree as the crops which were upon the land could be gathered, he had the land rented after due notice to the highest bidder; and the accounts he settled with Thomas, he was advised he was compelled to make, as his construction of the decree referred to only embraced settlements formerly made; and as the period at which he made his annual settlements had passed, and the period was approaching when limitation would bar his compensation unless settlement was made without a decree directing the commissioner of the court to make such settlement. This was the whole of his offending, if offending it be, and was done by him under the advice of counsel; and he is at a loss to understand in what way he has or could have gained an advantage. He says Robert C. Harkrader is entitled to have his share of the realty laid off to him, as he has attained his majority; and that the same can be done, as is shown by the evidence in the cause, in kind as to the interest of Frances E. Harkrader, for whom he is committee. He submits the question of a sale of the land to the consideration of the court.
Snavely made the report directed by the decree as to his investment of the money of the wards that came to his hands. From this report it appears that all the bonds turned over to him had been collected, except perhaps one for $48, and that he retained the money in his hands generally. In explanation, he says: That at the time these funds came into his hands there was much doubt and uncertainty in reference to the exemption allowed to debtors under the homestead and bankrupt laws, and that he felt there was great risk in loaning the money so as to have it in the hands of reliable persons; and further, that he believed that all that was required of him was to make his fiduciary settlements promptly at the end of each current year, and to pay over to his said wards as they severally became of age or married the several amounts found due them with compound interest, which he is striving honestly and faithfully to do, and for the accomplishment of which he has been maturing his plans.
In December, 1876, Commissioner English returned his report. He brought down the account to the 1st of January, 1876, charging the guardian with the same rent for the land and disallowing his charges for carrying on the working of the farm. And the defendant excepted to the report; insisting that after the decree of December, 1874, in which it was held that the guardian could not occupy the wards' land for himself at a rent, he had from January 1st, 1875, up to the time he rented the land at public auction in September, 1875, kept a particular and itemized account of his receipts and expenditures on account of his working his wards' lands, using and working the same for them, which he maintains it was lawful and proper he should have done; and therefore that the account for the year 1875 should have been stated on the principle upon which it was stated by the commissioner of accounts.
The cause came on again to be heard on the 21st of December, 1876, when the court overruled the exception of the defendant Snavely to the commissioner's report, and decreed that the said Snavely be removed from his office of guardian of the infant plaintiffs, and from that of committee of Frances E. Harkrader, and that he pay over to H. E. Harkrader, attorney in fact of Robert C. Harkrader and foreign guardian of the infant plaintiffs, and conservator of Frances E. Harkrader, the several sums respectively found due to them by the said report of Commissioner English, and all and any further sum which may be found due from him upon the settlement of his fiduciary accounts up to the date of this decree; and he is hereby directed at once to make such settlement before Commissioner English, who will report his proceedings to court. And the said H. E. Harkrader has leave to serve his fieri facias against the said defendants for the amounts thus decreed him.
And the court being further of opinion that the lands belonging to the plaintiffs are impartible in kind, without loss and disadvantage, and that it is to their interest to sell the real estate, doth * * decree that the said real estate be sold; and commissioners named were directed to sell the same at public auction, & c., & c. And thereupon Snavely applied to a judge of this court for an appeal; which was allowed.
Crockett & Blair and C. B. Thomas, for the appellant.
W. H. Bolling, for the appellees.
OPINION
CHRISTIAN, J.
The first question we have to determine in this case arises upon a demurrer filed by the defendant Snavely, both to the original and amended bills.
The ground of demurrer asserted is, that the original bill was multifarious, and that the same objection applies to the amended bill. If the demurrer be sustained as to either it must be sustained as to both.
The bill was filed by the children of Jas. H. Harkrader, all of whom were infants, (except one, who was of age, Frances C. Harkrader, but she being non compos mentis, ) by their next friend, against the appellant Snavely, as guardian of the infants and committee of said Frances. The object of the bill seems to be two-fold: First, to surcharge and falsify the ex parte account of the guardian already settled, and for cause alleged in the bill to have him removed from his guardianship; and, second, to have a sale made of the wards' real estate. It is insisted that the bill thus seeking two distinct and independent objects, wholly disconnected with each other, is multifarious. According to Lord Cottenham (and in this he has been followed by courts and text-writers), it is utterly impossible, upon the authorities, to lay down any rule or abstract proposition as to what constitutes multifariousness, which can be made universally applicable. The cases upon the subject are extremely various, and the courts in deciding them seem to have considered what was convenient in particular cases rather than to have attempted to lay down an absolute rule. The only way of reconciling the authorities on the subject, is by adverting to the fact that although the books speak generally of demurrers for multifariousness, yet in truth such demurrers may be divided in two distinct kinds. Frequently the objection raised, though termed multifariousness, is in fact more properly misjoinder; that is to say, the cases or claims united in the bill are of so different a character, that the court will not permit them to be united in one record. It may be that the plaintiffs and defendants are parties to the whole of the transactions which form the subject of the suit, and nevertheless those transactions may be so dissimilar that the court will not allow them to be joined together, but will require distinct records. But what is more familiarly understood by the term multifariousness, as applied to a bill, is where a party is able to say he is brought as a defendant upon a record with a large portion of which and of a case made by which he has no connection whatever. 1 Dan. Ch. Pract., 4th ed. 334-335, and cases cited in note.
Now, according to these principles thus declared, the bill m this case would be undoubtedly multifarious, if each of the causes of action as stated was sufficient to sustain the bill. The bill certainly contains two distinct and independent alleged grounds of suit: one for surcharging and falsifying the guardian's ex parte settled accounts, and for his removal, for causes alleged; and the other for the sale of the infants' real estate. If each of these are sufficient to sustain the bill, it is multifarious. But if upon the statements of the bill, each cannot stand alone; if the relief sought upon one ground, dictinct and independent of the other, is such that a court of equity cannot grant, either for want of jurisdiction, or because of the form in which it is sought, this latter will be treated as a nullity; and the court may proceed to act upon that ground of suit stated in the bill which is well stated. In such a case the bill will not be declared multifarious, but the court will treat the bill as if it did not contain the allegations setting up the second ground of relief, because by itself no such case could be maintained. This exception to the general rule as to multifariousness is well established, and is thus laid down in Story's Equity Pleadings: " And to support the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must concur: first, the different grounds of suit must be wholly distinct; secondly, each ground must be sufficient as stated in the bill." Story's Eq. Pl., 8th ed., p. 267-8, §§ 275-6, and cases cited in note.
The case before us, therefore, comes within the exception above stated, rather than within the general rules referred to. For while the object of the bill is two-fold, and the grounds of relief sought are seperate and independent, yet the second ground as stated in the bill, to-wit: that which seeks a sale of the infants' lands, must be treated as a nullity, because it does not present such a case as a court of equity can entertain. If, upon the allegations of the bill in the second ground of relief stated, the bill be taken as one for the sale of the wards' real estate, it is plainly defective. In such a case the bill must be filed by the guardian, and be verified by his oath. The infant must be made defendant by guardian ad litem, and all who would be his heirs, if he were deceased, must also be defendants. The guardian ad litem, as well as infants over fourteen years, must answer the bill on oath, and no deposition can be read in such a suit, unless taken in the presence of the guardian ad litem, or on interrogatories agreed on by him. None of these requisites of the statute are complied with.
So, too, if the bill be treated as one for partition, it is equally defective, for here the infants are all made plaintiffs and the guardian defendant. With such a bill the guardian has no interest or connection whatever, and should not be made a party, either plaintiff or defendant. So that it is clear that in considering the demurrer to the bill for multifariousness, the court will treat as a nullity so much of said bill as seeks for a sale or partition of the wards' lands; and so treating it, the court must pronounce the bill as not multifarious.
The court is therefore of opinion that there is no error in the decree of the court below in overruling the demurrer to the plaintiffs' bill, both original and amended.
The court is further of opinion, that there is no error in the decree of the said circuit court removing the guardian. The court does not deem it necessary to comment on or consider in detail, the voluminous evidence taken on this subject, and covering many pages in the printed record before us. It is sufficient to say that after a careful examination of this mass of testimony, the court is satisfied that the court below, in the exercise of that large discretion which must, of necessity, be vested in that court, (vide Reynolds v. Zink, 27 Gratt. 29,) was fully justified in removing the guardian. He had received about $5,000 of his wards' money; not a dollar of which he had invested, but used it himself as a borrower of the fund, and offseting the interest pro tanto by charges for board of his wards, at the same time receiving valuable services from some of them as laborers for himself. He rented himself the farm (a valuable and productive one) left the wards by their father, not at public auction, but at a rental fixed by friends of his own selection. He kept no account of the profits of the farm, but received them all himself, keeping the children on the farm, charging them board and allowing no compensation for their services, of which he received all the benefit.
Under these circumstances, and upon other grounds disclosed by the record, we are of opinion that the court below did not abuse the discretion vested in it by law in removing the guardian. Especially in this case would this court be slow to reverse the court below, because it appears that at the time the decree was entered for the removal of the guardian, all the wards (one of whom had come of age), had left the guardian and gone to live with their uncle in the state of Illinois, who in that state had duly qualified as the guardian of those who were still infants. It is difficult to conceive why, under all the circumstances, the appellant should desire still to retain his office as guardian of wards who are now residents of another state, and who are now the wards of another guardian, unless, indeed, upon the ground that he shall receive some further profit by still holding his wards' property. Upon the whole evidence the court is of opinion that there is no error in the decree removing the appellant from his office of guardian, and that in this respect the said decree be affirmed.
The court is further of opinion that there is no error in the decree of the said circuit court in fixing the annual rent of the wards' land at $400, as ascertained by Commissioner English's report and depositions therewith returned. This rental value was fixed by taking the average value fixed by a number of witnesses. This is a fair and legal mode, and even if not precisely accurate, will not be disturbed by the appellate court. The same may be said as to the amounts fixed as a reasonable board for the wards, as ascertained by said commissioner's report. The court is therefore of opinion that the decree of the circuit court overruling the appellant's exceptions to Commissioner English's report is not erroneous, and that the same, in this respect, be affirmed.
But the court is further of opinion that the decree of the circuit court directing a sale of the wards' real estate under the bill in this case is erroneous. It is no doubt, as shown by the record, to the interest of the wards that their land shall be sold; but this can only be done upon proper proceedings under the statute providing for the sale of real estate of infants, or upon a proper bill for partition and sale for that purpose, and cannot be done under the bill and proceedings in this case.
The court is further of opinion that so much of said decree as directs the appellant to pay over the amounts found due by Commissioner English's report, to the foreign guardian, is erroneous. Such payment can only be made in accordance with the fifth section, chapter 125, Code 1873. That section provides as follows:
" No such order" (i. e., order referred to in the third and fourth preceding sections, referring to transfer of property of infant or insane person) " shall be made until notice of the application shall have been published once a week for four successive weeks in a newspaper, nor until it shall be shown by authentic documentary evidence that such foreign guardian, or committee, has, where he qualified, given bond with surety sufficient to insure his accountability for the whole amount of the ward's or insane person's estate in his hands, or which will probably be received by him as such guardian or committee, nor until the court shall be satisfied that the removal of such money or property from this state will not impair the rights, or be prejudicial to the interests, either of the ward or insane person or of any other person."
These provisions of the statute are mandatory, and must be complied with before any money or other personal property belonging to a non-resident infant can be paid over to a foreign guardian.
The proper proceeding in this case, would be the filing of a petition by the foreign guardian, and the publication of notice of such petition or application " once a week for four successive weeks in a newspaper," as required by the statute. These provisions of the statute not having been complied with, so much of said decree of the circuit court as directs the payment of money due the wards to the foreign guardian, without his compliance with the aforesaid provisions of the statute, is erroneous, and must be reversed.
The court is therefore of opinion that so much of the said decree of the circuit court of Wythe as is not in conformity with the principles herein declared, must be reversed, and in all other respects that the same be affirmed.
The decree was as follows:
This cause, which is pending in this court at its place of session at Wytheville, having been fully heard, but not determined at said place of session, this day came here the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree of the said circuit court in overruling the demurrer filed by the appellant to the original and amended bills of the appellees; nor is there any error in said decree removing the appellant from his office of guardian of the infant children of J. H. Harkrader, deceased, and of committee of Frances E. Harkrader; nor is there any error in said decree in overruling exceptions of appellant to Commissioner English's report, and confirming said report with respect to the amounts therein charged against said appellant for rent of the land, and credited to him for board of his said wards and the said Frances E. Harkrader. It is therefore decreed and ordered that the said decree of said circuit court of Wythe county, in all these respects and to this extent be affirmed. But the court is further of opinion, for reasons stated in writing and filed with the record, that so much of said decree as directs a sale of the infants' real estate under the bills and proceedings in this cause, and that so much of said decree as directs the appellant to pay over to the foreign guardian, H. E. Harkrader, the sums respectively found due to the appellees by the said report of Commissioner English, is erroneous. It is therefore decreed and ordered that the said decree of said circuit court be in these respects reversed and annulled, but in all other respects be affirmed; and the appellees being the parties who substantially prevailed in this court, it is decreed and ordered that the said appellees recover of the appellant their costs by them expended in their defence of this appeal and supersedeas here. And this court now proceeding to enter such decree as the said circuit court ought to have entered, it is decreed and ordered that so much of said original and amended bills as seek for a sale of infant real estate be dismissed. But liberty is reserved to them to file their bill in said court, either by the guardian of the infant defendants in the mode prescribed by the statute for the sale of infants' real estate, or by the adult appellees for partition and sale of the subject for that purpose. And leave is also granted to the appellee, H. E. Harkrader, the foreign guardian, to file his petition in said court, after due advertisement as prescribed by the statute, and upon such petition so filed, the said circuit court shall decree to be paid over to him the several amounts respectively due from the former guardian, Snavely (the appellant), as already ascertained by said report of Commissioner English. And it is further decreed and ordered that said circuit court shall, through one of its commissioners, ascertain what proportion of the costs was incurred in taking evidence in reference to the sale of said infants' real estate, and of evidence certified from the state of Illinois as to the qualification of said foreign guardian, and the cost of printing the same; and such costs, so ascertained, shall be, upon a final decree, decreed against the said H. E. Harkrader. All of which is ordered to be certified to said circuit court.
It is further ordered, that this decree be entered on the order book here, and forthwith certified to the clerk of the court at its place of session, where this cause is pending as aforesaid, who shall enter the same on his order book, and certify it to the said circuit court of Wythe county.
DECREE REVERSED, but with costs to the appellees as the party substantially prevailing.