dissenting: Walter Gardiner died in 1912, leaving an aged mother, one brother, Isaac, a wife and an infant son named Wilbur. By his will he devised his property to “be divided equally between my wife and my mother for their lifetime and then to go to my son, Wilbur, *201if be lives; but if be dies, then to my brother, Isaac.” Tbe defendant May qualified as administrator, and bad tbe year’s provision allotted to tbe widow, $300, and $100 for tbe son. His final account showed that tbe personal estate was $1,222.24, from which tbe above debts paid and expenses should be deducted.
On 18 December, 1914, tbe plaintiff, being tbe mother of tbe deceased, brought this action against tbe administrator to surcharge tbe final account as filed. The plaintiff’s counsel and defendant’s counsel agreed at May Term, 1916, upon a consent judgment that tbe net amount due for tbe plaintiff’s half of tbe estate in tbe bands of tbe defendant was $259.01.- Tbe plaintiff in July, 1916, caused execution to issue upon said judgment. On 21 August, 1916, tbe defendant moved to set aside tbe judgment, which motion being refused, be appealed to this Court.
Tbe defendant does not deny that $259.01 is one-half tbe estate in bis bands, and avers that be is ready to pay tbe same over to tbe plaintiff, the mother of the deceased, if tbe life tenant is entitled to receive tbe fund. But be avers that tbe consent judgment was merely intended to fix tbe amount so due, and that inasmuch as tbe plaintiff was only entitled to a life estate therein, and is insolvent, that should be pay tbe corpus of tbe fund over to her be may be liable at her death to pay tbe same amount over again to tbe son, who is now 10 years old, or, if be should die, to tbe brother of tbe deceased, who under tbe will are entitled to tbe corpus of tbe fund after tbe death of tbe life tenant. He avers bis readiness to pay tbe fund into court, that tbe interest thereof may be paid to tbe mother during her lifetime.
Tbe plaintiff’s counsel cites authorities in our Court that, there being no trustee interposed under tbe terms of tbe will, tbe administrator will be discharged upon paying over tbe corpus of tbe fund to tbe life tenant ; that since tbe testator has thus seen fit to trust the life tenant, tbe administrator is not charged with doing more than banding tbe fund over to her. To this it is objected that if this Court so decrees without tbe son or the brother of tbe deceased being made parties, they are not bound by such judgment, and, notwithstanding tbe judgment of tbe Court, may bring action against tbe administrator and subject him to payment again of the fund, if it be that be ought not to pay it over to tbe life tenant.
In this state of things it is eminently proper that this Court should issue notice to both tbe remaindermen, tbe son. and tbe brother of- the deceased, that they may be represented. Tbe son, who is now 10 years of age, should be represented by a guardian ad litem, appointed for that purpose.
The plaintiff is not bound by tbe prayer of bis motion, which was to set aside tbe judgment. But he is entitled to any relief which tbe alie-*202gations in Ms complaint or motion, if proven, entitle liim to have. McCulloch v. R. R., 146 N. C., 316; Gilliam v. Ins. Co., 121 N. C., 372, and numerous other cases cited in Pell’s Revisal under section 467, subsection 3. In this case the above facts are not disputed. To send the case back to the lower court with leave to the infant son to institute proceedings to protect his rights would be in vain, as he would doubtless take no action at this time, but would wait the death of his grandmother, when he can assert his claim, if it is good, against the defendant, who in such case would be compelled to pay it over to him. The administrator would thus be compelled by this Court to pay the corpus of the fund to the grandmother, the life tenant, and would be helpless to protect himself on the death of the life tenant against an action by the son or brother of the deceased, as the case may be.
Besides, such multiplicity of suits would probably eat up the entire fund, which would go to -lawyers’ fees and court costs, which was the result oftentimes under the old system in which a judgment was permitted at law and then an injunction was brought on the equity side of the docket to prevent the collection of the judgment, to the great vexation and expense of the parties entitled to the fund and to the great profit of' lawyers and court officials, whose fees often absorbed the entire fund.
In this enlightened age we have well passed that state of things, and to prevent its repetition it has been provided by statute that even on appeal to this Court the Court can “amend by making proper parties to any case where the Court may deem it necessary and proper for the purposes of justice, and on such terms as the Court may prescribe.”' Revisal, 1545. This statute was jmsed for the very purpose of such case as is now before us, to avoid multiplicity of actions and the absorption of the fund in unnecessary counsel fees and court costs. It has been repeatedly acted on in this Court. See citations to that section-in Pell’s Revisal, 1545.
Justice surely requires that a simple notice should issue under Revisal, 1545, from this Court to the remaindermen, the son and brother of the deceased, that they may be heard here. In that case there will be small cost or delay; and if the court is of opinion that the administrator will be protected by paying over the fund to the life tenant, such judgment will be a protection to defendant against future litigation upon the death of the life tenant,. But if the court should, be of the opinion that the fund cannot be paid over to the life tenant, an order can be made-directing the fund to be paid to the clerk’s office and invested and interest thereon to be paid to the life tenant during her life.
The defendant and his counsel both aver that there was no authority given to said counsel to bind the administrator to pay over the fund to-*203the life tenant and thereby subject the administrator to payment of'the fund again to the remaindermen, and that the whole object of the consent judgment was to ascertain the amount of the fund in which the plaintiff as a life tenant is interested, which was a fact that could be agreed on. The burden was upon the plaintiff to show that defendant’s counsel .had authority from his client to bind him by consent judgment to do what the plaintiff claims, which is' a matter of law, and this authority has not been shown. The presumption is that the amount due by the defendant only was'ascertained by the consent judgment. He should not be required to pay oyer the corpus of the fund to the life tenant unless she is entitled to receive the same as a matter of law. That was a matter of law, and not of fact, and should be adjudicated in this action, the remaindermen being made parties.
Any judgment which requires the administrator to pay over the fund to the life tenant unless the remaindermen are made parties would unjustly subject him to future litigation at the will of the remainder-men. The notice to the remaindermen could issue under Bevisal, 1545, at the discretion of the court, and should be made returnable during this term on a day named, and the entire matter thus finally disposed of without appreciable costs or expense. Surely, the interests of justice and the intention of Eeyisal, 1545, require that this should be done. The spirit of the age as evidenced by the action of the American and State Bar Associations and by legislation in this State and everywhere else requires that we should thus simplify the administration of justice and not follow the antiquated and obsolete practice of a ruder age, the result of which was to delay justice, accumulate costs, and “lengthen simple justice into trade.”