It is urged by counsel for defendants in error that the court properly ruled in dismissing the bill, because,
1st. Suit in behalf of a lunatic is not properly brought by a “ next friend ” without leave of the court.
2d» Selina Bowman was not a proper party, because she had no interest in the subject-matter.
3d. The bill contains no such allegations as to call for the aid of a court of equity.
On the other hand, counsel for plaintiffs in error insist upon the Converse of these propositions and that the ruling of the court was erroneous.
Where a conservator has been appointed for a lunatic in pursuance of the statute it is his duty to represent his ward in all suits and proceedings unless another person is appointed for that purpose as conservator or next friend, but it is provided that nothing contained in the act shall impair the power of the court to appoint a conservator or next friend to represent the interest of such ward in any suit or matter pending ih the court, or to commence, prosecute or defend any suit in his behalf, subject to the discretion of the court. Ch. 86, Sec. 13, R. S. 1874.
By this provision the court may in its discretion appoint a conservator or next friend for a particular purpose, notwithstanding there is already, a conservator possessing general authority as such.
But in the case before us there had been no conservator appointed under the statute. By the rules of Chancery Practice as laid down in Daniel], 5th Ed., page 82, “Suits on behalf of a lunatic are usually instituted in the name of the lunatic, but as lie is a person incapable in law of talcing any step on his own account, he sues by the committee of his estate, if any, or if none, by his next friend, who is responsible for costs;” and this proposition is abundantly supported by the adjudged cases cited in the note. See also, C. & P. R. R. Co. v. Munger, 78 Ill. 300, as to proceedings at law.
It was not made a cause of demurrer that the bill was improperly filed on behalf of the lunatic; and even if, as counsel suppose, it is a matter of discretion with the court to permit a suit to be so brought, there should appear some reason for refusing it before the suit would be dismissed. Prima facie, the suit may be so brought, and the court would hardly consider the fact that no such permission had first been granted as a proper ground for sustaining a demurrer to a bill otherwise sufficient, when so filed in behalf of a lunatic and another suing in his own right.
Was Selina Bowman a proper party to the bill ? It is averred that the said Simeon W. is insane, incapable of contracting marriage, that the said Selina will therefore be his only heir, and by the operation of the will, if he dies during her lifetime, the property will pass to her. So that the facts being considered in connection with the will, the situation is the same as if the will in terms provided that upon his death the property should go to her. She lias therefore an important interest in the estate contingent only upon his death occurring before hers.
One sustaining such a relation to equitable property may file a bill quia, timet, and the jurisdiction attaches equally in cases where there is a present right of enjoyment, and to cases where the right of enjoyment is future and contingent. Story’s Eq. Jur., Sec. 827. The same author further remarks) “ The object of the bill in such cases is to secure the preservation of the property to its appropriate ends and uses, and wherever there is danger of its being converted to other purposes, or diminished or lost by gross negligence, the interference of a court of equity becomes indispensable. It will accordingly take the funds in its own hands or secure its due management and appropriation either by the agency of its own officers or otherwise. Thus, for instance, if property in the hands of a trustee for certain specific uses or trusts (either expressed or implied,) is in danger of being diverted or squandered, to the injury of any claimant having a present or fixed title thereto, the administration will be duly secured by the court according to its original purposes in such manner as the court may in its discretion deem best, as by the appointment of a receiver or by payment of the fund, if pecuniary, into court, or by requiring security for its due preservation and appropriation.”
The same principle is applied to cases of executors and administrators, who are treated as trustees of the personal estate of the deceased (Ibidem, Sec. 828), and is also applied in preserving purely legal property where the right of enjoyment is future or contingent. Ib. Sec. 844, et seq.; 1287, et seq.; Wait’s Actions and Defenses, Vol. I, page 654, et seq.; Perry on Trusts, Vol. 1, Sec. 275.
We are of opinion the bill was properly filed on behalf of Selina Bowman, and as the relief sought by her is substantially consistent with that prayed on behalf of the lunatic, there is no apparent reason why they may not file the bill jointly.
The remaining question is whether the allegations of the bill are sufficient to call for answer.
We think that they are. It is charged that the defendants— who, hy reason of the confidence reposed in them fby the testator are exercising the trust without bond—-have mismanaged the property; that they have appropriated to their own use $15,000, or more, which they are unable to replace; that the property is wasting and shrinking in their hands when it ought to improve and increase; that they refuse to accoun t because the account would show that they should be removed, and that a continuance of their present course will result in great loss to the parties interested in the estate.
Such a state of facts, if true, would call for the interposition of equity, and the exercise of its jurisdiction to correct the evils complained of.
It is suggested that a former bill was filed in reference to the same matter to which the circuit court sustained a demurrer, and that this court sustained that ruling by affirming the decree. Examination of that bill will show that its objects and allegations were quite unlike those of the present bill. It was filed on behalf of the lunatic alone, to obtain a construction of the will which was deemed unsound, and its charges of misconduct were regarded as too vague and uncertain to require answer.
We are of opinion the court erred in dismissing the bill now before us.
The decree is therefore reversed and the cause remanded.
Reversed and remanded.