Roodhouse v. Roodhouse

Benjamin T. Roodhouse v. Harry W. Roodhouse

Roodhouse v. Roodhouse, 24 N.E. 55 (Ill. 1890)

Court: Illinois Supreme Court · State Highest Courts
Decided: March 31, 1890
Judges: Scholeield
Citations: 24 N.E. 55132 Ill. 360

Syllabus

1. Guardian and ward—whether guardian may act for his ward-in partition—where the guardian and ward are tenants in common. A guardian whose interest is hostile to that of his ward, is incompetent to act for his ward in respect to that interest. 2. Where a guardian and his ward are tenants in common of land, it. •will be error to decree a partition between them in a suit brought in the names of the guardian and the infant by such guardian, their interests being hostile. In such a case the ward should be made a defendant and have a guardian ad litem, or he should present his petition by his-next friend or guardian ad litem. 3. The statute, which provides that an infant may petition, by his-guardian or next friend, for the partition of land, means when such guardian or next friend is competent to act in the case. Where the interest of the guardian is hostile to that of his ward, the latter must be-represented by counsel distinct from those representing his guardian.

Summary

Writ oe Error to the Circuit Court of Greene county; th& Hon. Albert G. Burr, Judge, presiding.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Scholeield

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Mr. Justice Scholeield delivered the opinion of the Court:

This is a writ of error to bring in review a decree of the circuit ■court of Greene county, assigning dower in and making partition of lands whereof Peter Roodhouse died seized. The bill is filed by Harry W. Roodhouse and Benjamin T. Roodhouse, a minor, by Harry W. Roodhouse, his guardian, and prays the assignment of dower to the widow of Peter Roodhouse, deceased, and that the lands remaining be partitioned between the petitioners, his sole heirs-at-law. Commissioners were appointed, who assigned dower and made partition as prayed, and they reported their action to the court, and it was confirmed.

The only question that we think it necessary to consider is, whether it was error to partition the lands without having the minor represented by a guardian ad litem or a next friend. It is plain that the interests of the ward and the guardian were hostile, since what was given to the one was taken from .the ■other. We have held, that it is error to render a decree for partition of the property of a minor unless he is actually represented in court, either by a guardian, a guardian ad litem, or a next friend. (Cost v. Rose, 17 Ill. 276 ; McDaniel v. Correll, 19 id. 226; Rhoads v. Rhoads, 43 id. 239; Hall v. Davis, 44 id. 494.) Our statute, it is true, provides that an infant may petition, by guardian or next friend, for partition of lands; (Rev. Stat. 1874, chap. 106, sec. 3;) but, upon the clearest principle, this means, when such guardian or next friend is competent to act in the case; and a guardian whose interest is hostile to that of his ward, is incompetent to act for his ward in respect to that interest. Simpson v. Alexander, 6 Coldw. (Tenn.) 619; Parker v. Lincoln, 12 Mass. 16 ; Trustees v. McLendon, 43 Miss. 254 ; Wells v. Smith, 44 id. 296 . The minor should either have been made defendant, and had a guardian ad litem, or have petitioned by his next friend or guardian ad litem, and been represented by counsel distinct from those representing his guardian.

For the error indicated, the decree is reversed, and the cause, remanded for further proceedings.

Decree reversed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

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Relies on it most ⓘ

Sando v. Roberts156 N.W. 64 (S.D. 1916) · Dissent
L.F.H. v. People628 N.E.2d 805 (Ill. App. Ct. 1993)
Ponti v. Hoffman151 P. 249 (Wash. 1915)
In re ESTATE OF McFADDEN964 N.E.2d 141 (Ill. App. Ct. 2011)
Pfister v. Johnson13 F. Supp. 662 (N.D. Okla. 1936)
Miller v. Whelan42 N.E. 59 (Ill. 1895)

Most recent

In re ESTATE OF McFADDEN964 N.E.2d 141 (Ill. App. Ct. 2011)
In re Estate of McFadden2011 IL App (2d) 101157
L.F.H. v. People628 N.E.2d 805 (Ill. App. Ct. 1993)
Stevenson v. Hawthorne Elementary School579 N.E.2d 852 (Ill. 1991)
Clarke v. Chicago Title & Trust Co.66 N.E.2d 378 (Ill. 1946)
Pfister v. Johnson13 F. Supp. 662 (N.D. Okla. 1936)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

Depth	Case	Cited by
	John A. Winston & Co. v. McLendon, 43 Miss. 254 (1870)	9
	Cost v. Rose, 17 Ill. 276 (1855)	9
	Parker v. Lincoln, 12 Mass. 16 (1815)	4

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