
    
      W. R. Sharer v. John S. Gill, Adm’r, et al.
    
    'Chancery Pi/eadings and Practice. Appeal. Minors. A decree which settles the rights of the litigants in certain realty, vesting the title of part of the lands in the children of a deceased litigant, subject to the widow’s dower if she have any, is not a decree from which the widow and children can appeal, when it reserves all questions as to such dower, as well as certain other questions touching the rights of the children, until a final hearing. Infants cannot prosecute an appeal by taking the pauper oath.
    PROM SMITH.
    Appeal in error from the Chancery Court at Carthage. W. G. Crowley, Ch.
    T. J. Fisher and A. A. Swope for Sharer.
    R. A. Cox, Smith and J. Haile for Mrs. Gill and children.
   Cooper, J.,

delivered the opinion of the court.. ,

The appellees have moved to dismiss the appeals -of the widow and infant children of T. B. Gill, de•ceased.

The litigation involved the interest of T. B. Gill in certain realty, which, upon his death pending the litigation, descended to his* heirs, subject to the claim ■-of his widow to dower. The transcript contains the records of five different cases, the styles of all which ■are prefixed to the later decrees, and especially to the two decrees adjudging the rights of the parties, viz., the decree of the 3d of September, 1875, and the final decree from which the appeals were taken. One of these cases had the style of W. R. Sharer v. John S. Gill, Adm’r, et al., and it was the style of this case that was prefixed to the affidavits of the widow and children by which they perfected their appeals, they taking the oaths prescribed for poor persons.

The motion to dismiss the widow’s appeal is based upon the assumption that she ought to have appealed from the decree of the 3d of September, 1875, by which her rights were adjudged, and that her appeal from the final decree of the 28th of February, 1879, brought up nothing. The facts do not justify the assumption.

The widow and children of T. B. Gill were parties defendant to the bill of W. R. Sharer, as were all the other material parties. The decree of the 3d of September, 1875, did adjudge the relative rights of Sharer and the other litigants, and vest the title of a part of the land in Sharer, and of another part in the four children of T. B. Gill as his heirs, subject to the dower right of the widow, “if she has such right.” The decree adds: “But all questions as to such dower between her and said heirs, and between her and the creditors of Thos. B. Gill, are reserved.” This decree further sets aside a decree rendered in 1872, adjusts other equities, and ordered an account, in which Gill’s estate was interested. It concludes thus: The question is reserved till final hearing whether the estate of T. B. Gill shall be substituted to the rights of the Baird decree as a prior lien over all other parties on said lots of land; and, also, it is reserved as to whether the estate of Morris S. Allison and the estate of T. B. Gill have any prior lien on said lots, or either of them, for their respective claims against Good and Sargent, or against each other. These questions will be adjudicated on final hearing. And it is reserved as to whether such liens, if they exist, shall affect the 'right of said widow’s claim to dower.”

• These recitals render it clear that the decree of the 3d of September, 1875, was not such a final decree as the widow could of right have appealed from. The questions reserved were never adjudicated until the decree from which the appeal was prayed and granted. The motion as to the widow is disallowed.

The motion to dismiss the appeal of the infant children, so far as it rested on the same ground as the motion for the dismissal of the widow’s appeal, cannot be maintained for the’ same reason. No appeal could have been taken by them as of right until a final disposition of the entire cause: Hume v. Commercial Bank, 1 Lea, 220.

But the motion, as to these appellants, is rested on the further ground that an appeal cannot be taken by them under the oath prescribed for poor persons. It has long been settled that a guardian or next friend cannot commence a suit on behalf of an infant without first giving bond and security for costs: Green v. Harrison, 3 Sneed, 131; Cohen v. Shyer, 1 Tenn. *Ch., 192. Nor can a next friend prosecute an appeal by taking the pauper oath: Brooks v. Workman, 10 Heis., 430. Nor can a guardian ad litem of an •infant: Musgrove v. Lusk, 5 Baxt., 684. The reason ■is, that the laws authorizing suits in forma pauperis confer a personal privilege: MeCoy v. Broderiek, 3 Sneed, 203. And the fact that the person who assumes to act as next friend is unable to give security for the prosecution of the suit, is a very sufficient reason why he should neither seek nor be permitted to place himself in that attitude: Green v. Harrison, 3 Sneed, 133; Fulton v. Rosevelt, 1 Paige, 178. If a next friend cannot commence a suit in the name •of an infant without first giving security, as required by law, for costs, it would follow that he could not •appeal, which is in the nature of a new suit. The infant himself cannot sue without next friend, and cannot, therefore, by affidavit', dispense with the necessity which the law imposes upon the person who thus assumes to act; besides, the incapacity of the infant to know what is for hi's interest, or the condition of •his estate, renders any oath taken by him insufficient for the purpose intended: Lindsay v. Tyrrell, 2 DeG. and J., 7. When the suit of a married woman is required to be by next friend, this court has held that she cannot appeal under the pauper oath: Gorman v. Flynn, Knoxville, 1879. No such practice has ever been recognized in this State as permitting a suit to be brought, or an appeal to be taken, by a person under disability, where a next friend or guardian is required, upon the pauper oath of such 'person, and we see no reason for inaugurating such a practice.

The appeal of the infant appellants will therefore he dismissed, unless within a reasonable time, say-thirty days, a proper bond for costs is given on their "behalf by the guardian ad litem or other next friend.  