After most careful consideration I have become convinced that we erred in affirming the ruling of the trial court. I fear that the issue tried below was not whether Orson H. Lee was a proper person to act as next friend for the plaintiff, but whether the case ought to be prosecuted at all.
As I view it, the record as a whole reflects clearly that the brother who is guardian, and certain other relatives of Hugh Henderson, have combined with the oil company which purchased mineral interests from the guardian, in the effort to oust Lee as next friend. One of the relatives who joined in the move to oust Lee is the mother of J. Willard Gragg, whom the court appointed as next friend in the place of Lee. I observe that her motion to oust Lee is also signed by one of the attorneys who represent the oil company. Counsel for the defendants have argued with great vigor in this court that the "family" do not want this suit prosecuted.
The land which belongs to plaintiff has several oil wells on it. Half the royalty income amounts to $1500 per month. Yet the brother who has been acting as guardian has until recently been paying only about $25 per month over to the plaintiff for his support. Although wealthy, plaintiff has been compelled to live in *Page 391 comparative poverty. Plaintiff is not married, has no children, and cannot make a valid will. Therefore his collateral kin, many of whom have joined in the move to oust Lee as next friend, will receive at plaintiff's death all that has not been expended for his support. Their own counsel refer to them as the "heirs apparent".
There is simply nothing in the record to suggest to me that there will be any lack of diligence, skill, ability and competence employed in the presentation of Hugh Henderson's rights and claims in court if Orson H. Lee is retained as his next friend. Lee has employed as his counsel some of the ablest and most honorable attorneys in this Supreme Judicial District. They have unmistakably prosecuted the case with vigor and determination up to this point.
I am of opinion that the court below was in error in removing Lee as next friend and in substituting in his place a person who is so closely connected with those who openly and obviously oppose the prosecution of the litigation.