I agree with the conclusion reached in the majority opinion, *Page 605 but I am not in accord with the reasoning by which that result was arrived at.
The covenant upon which the action was brought was an express covenant contained in a lease dated the 1st day of December, 1909, signed by Linnie Cummings, guardian of certain infants, and made to the United Fuel Gas Company as lessee. The lease was made pursuant to an order entered in a summary proceeding in the Circuit Court of Roane County. It is true that this particular covenant does not expressly name the guardian. The majority opinion states: "In terms, the 'lessee agrees' to do the thing undertaken, but the guardian is not mentioned in that connection. Therefore, this not being a direct promise or covenant with the guardian, but being for the benefit of the infants, it will be treated as made directly with them." The infants were not parties to the lease nor were they named in the covenant. As I see the matter, the guardian was the only party in the lease with whom the covenant could possibly have been made. The covenant was, I think, in fact made directly with the guardian.
Our case of Lawson v. Kirchner, 50 W. Va. 344, 40 S.E. 344, is authority for the proposition that infants may sue by next friend for the recovery of rent reserved expressly to be paid to them. The case does not hold that a covenant made in a lease by the guardian of infants, wherein the infants are not named, may be sued upon in the name of the infants by their next friend.
I do not think that the use made in the majority opinion of the case of Ross v. Gill, (Va.) 1 Wash. 87, is sound. I think the statement made in the majority opinion to the effect that the lessee's written covenant to pay rent as set forth in the opinion (referring to Ross v. Gill) did not specify whether the payments should be made to the guardian or to the ward, is incorrect. While it is correct that the statement of fact, apparently made by the reporter and certainly not a part of the opinion, quotes a memorandum signed by one Joseph Jones in behalf of the guardian which sets forth the terms of the lease, the statement of fact at the same time makes it clear that the action was brought upon a verbal lease, using *Page 606 the following language: "That the plaintiffs also proved by a witness, as well as by letters of the defendant, that averbal contract was entered into between the mother of the plaintiff with the defendant, as stated in the declaration, of which the defendant took the above memorandum, written by himself and signed by Joseph Jones: That in pursuance of the agreement aforesaid, the defendant entered into, and was possessed of the demised premises, but that they produced no proof of any contract between the plaintiffs and the defendant, other than as above, or that the memorandum aforesaid was ever assigned to the plaintiffs, otherwise than as stated in the declaration * * *" (italics supplied). The declaration expressly avers that the rent was reserved to be paid to the infant, according to the same statement of fact. It will be observed that this statement of facts leaves no room for a written covenant between the guardian and the defendant. Furthermore, the opinion in the case, as I read it, expressly finds that the rent reserved in the lease made by the guardian was reserved to be paid to the infant. The full language of that part of the opinion which is quoted in the majority opinion filed in this case is as follows: "The reservation of the rent to the infant was proper, and can not be likened to the case of a reservation to a stranger; for the inheritance being in the ward, there is a privity between her and the lessee, and therefore, there is no doubt of her rights to maintain an action of debt to recover the arrears of rent." I suggest, with deference, that from the foregoing it is perfectly plain that the court in Ross v. Gill based its conclusion upon the fact that the reservation of rent was made to the infant individually. The court did not treat a general reservation of rent in a lease made by the guardian and to which the infant was not a party, as though the reservation had been made to the infant. In Ross v. Gill the reservation of rent was in fact made to the infant. The case rested, not upon a covenant to pay rent made in a lease by the guardian andconstrued as a covenant upon which the infant could sue by next friend because it was made for the infant's benefit, but upon a covenant expressly reserving the rent to the infant. The case holds that an infant may sue by next friend *Page 607 in an action of debt to recover rent reserved expressly to the infant. The difference, I think, is apparent.
Of course, whatever the guardian does is for the benefit of the infant. The guardian made the lease in this case for the benefit of the infants, and could not have made it unless she had been able to show that it was for the benefit of the infants. A covenant expressly made in the name of the guardian would have been for the benefit of the infants, a covenant made expressly to the infants would have been for the benefit of the infants, and a general covenant in a lease made by the guardian would have been for the benefit of the infants also. Therefore I do not believe that this question is to be determined on the basis of benefit. The guardian made the lease. The consideration, under the direction of the court, moved from the guardian. The covenants that were made by the lessee in accepting the lease were made to the guardian. Whether the guardian's name was mentioned in each particular covenant or not makes no difference. I therefore am of the opinion that the guardian is the proper person to sue during the infancy of the ward for a breach of the covenant. To say that the infant is the proper person to bring such an action, it seems to me, relieves the guardian of the duty to manage the ward's estate to that extent, and places the responsibility of deciding when such an important step, as bringing an action for breach of covenant, should or should not be taken, upon the infant, who the law says is not capable of making such decisions. The very purpose and reason for the guardianship is to that extent defeated. It seems to me that such a result is to be avoided where it can be, and allowed only where specific language, as where a covenant is expressly made to and with the ward, requires it.
Although the position of the guardian is not that of a trustee, it seems to me that, upon termination of the guardianship upon the ward's attaining his majority, the analogy is to the termination of an express trust limited to expire at a time certain. I understand that in such a case no reconveyance is necessary to unite the equitable and legal interests in the beneficiary. Upon the ward's attaining majority the control and management of the guardian of his estate is at an end. I *Page 608 believe that the provisions of Code, 44-10-7 (Sec. 7, ch. 82, Code 1923), are declaratory of the same rule as to guardian and ward. The section cited provides, among other things, that guardianship shall terminate upon the ward's reaching the age of twenty-one years, and that "At the expiration of his trust, he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to the person or persons entitled thereto." This provision, it seems to me, was manifestly intended to invest control of the entirety of the infant's estate in the infant at the time of his reaching his majority. If the covenant was breached during infancy, the right of action upon it would be a part of the infant's estate, and would at once devolve upon the infant upon his attaining the age of twenty-one years. The same would be true of the infant's interest under the lease, and if the breach occurred after the former infant had reached his majority, then the right of action for such a breach of covenant would also be in him. The guardian is the proper person to sue upon a breach of covenant made with the guardian when the suit is instituted prior to the majority of the ward. After the majority of the ward, the ward is the proper person to sue, whether the breach occurred before his reaching his majority or after.
On the basis of what has been said, I do not question the soundness of the conclusion reached in the majority opinion. I do not think, however, that the cases cited in the opinion sustain the conclusion reached; nor do I believe that the argument advanced is sound.