McARTHUR v. SCOTT

MR. JUSTICE GRAY delivered the opinion of the court.

This case presents three principal questions:

First. Whether the equitable estate in fee which Duncan McArthur by his will undertook to devise to his grandchildren, children of his five surviving children, was vested or contingent?

Second. Whether the devise of that estate, so far as it is to the present plaintiffs, was void for remoteness?

Third. Whether the decree in 1839, setting aside his will and annulling the probate, is a bar to this suit?

I. The principal provisions of the will of Duncan McArthur, material to the decision of this case, are as follows:

By the fifteenth clause, he directs that his lands in the counties of Ross and Pickaway shall be leased or rented by his executors "until the youngest or last grandchild which I now have, or may hereafter have," the child of either of his five surviving children, Allen C., James McD., Effie, Eliza Ann or Mary, "who may live to be twenty-one years of age, shall arrive at that age." By the sixteenth clause, he directs that, until that time, the income of these lands, and the dividends of all stocks held by him or purchased by his executors, shall be by them annually divided equally among the five children aforesaid, or the issue of any child dying, and among the grandchildren also as they successively come of age.

The seventeenth clause provides as follows: "It is my further will and direction that after the decease of all my children now living, and when and as soon as the youngest or last grandchild, in the next preceding clause but one of this will designated and described, shall arrive at the age of twenty-one years, all my lands" in question "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters, Allen C., James McD., Effie, Eliza Ann and Mary, for them and their heirs forever, to have and to hold, or to sell and dispose of the same at their will and pleasure; and in like manner all the stocks belonging to my said estate, whether invested before or after my death, shall at the same time be equally divided among my said grandchildren, share and share alike, per capita; but it is to be understood to be my will and direction that if any grandchild aforesaid shall have died before said final division is made, leaving a child or children lawfully begotten, such child or children shall take and receive per stirpes (to be equally divided between them) the share of my said estate, both real and personal, which the parent of such deceased child or children would have been entitled to have and receive if living at the time of such final distribution." The word "deceased," near the end of this passage, was evidently intended to be prefixed to the word "parent," instead of to the words "child or children," so as to read "deceased parent of such child or children."

By the eighteenth clause, he directs that "in such final distribution of my lands" the executors for the time being shall make deeds of partition "to and in the names of those who may be thus entitled thereto;" and "to enable my executors the more effectually to execute the powers and duties by this will devolved upon them, and to protect my said children and grandchildren against fraud and imposition," he devises the lands to his executors and their successors, "and to their heirs, in trust for the uses and purposes and objects expressed in this my will, and the performance of which is herein above directed and prescribed, to have and to hold the title thereof till such final division or partition thereof, and no longer." By the twenty-fourth clause, he appoints three executors, and directs and requests that if either of them shall die, resign, or refuse to act, the court having probate jurisdiction for the county of Ross shall appoint a new one instead, to act as an executor with the others, so that there shall always be three executors.

The devise in the eighteenth clause of the title in the lands to the executors and their successors, and their heirs, in trust for the uses and purposes expressed in the will, to have and to hold until the final division or partition, clearly gave them an estate in fee, to last until that time. Doe v. Edlin, 4 Ad. & El. 582; Maden v. Taylor, 45 Law Journal (N.S.) Ch. 569 And there can be no doubt that, as contended by the learned counsel for the defendants, the powers conferred and the trusts imposed upon the executors were annexed to their office of executors, and did not make them trustees in another and different capacity. Colt v. Colt, 111 U.S. 566, 581; Treadwell v. Cordis, 5 Gray, 341, 358; Gandolfo v. Walker, 15 Ohio St. 251.

The equitable estate created by the gift in the sixteenth clause of the income to the children and grandchildren, being an estate which must endure for the lives of the children, and might endure throughout the lives of the grandchildren, though subject to be sooner determined in the contingency of the coming of age of the youngest grandchild, was technically an estate for life. 2 Bl. Com. 121.

The nature of the equitable estate in remainder created by the seventeenth clause demands more consideration.

The counsel for some of the defendants contended that it was contingent upon the arrival of the youngest grandchild at twenty-one years of age. In that view, the whole estate in remainder, being dependent upon the termination of the particular estate for life, and vesting at that time and not before, would be in legal effect an equitable contingent remainder to the grandchildren then living, and the issue then living of grandchildren theretofore deceased, as one class.

In behalf of other defendants it was contended that the remainder in fee expectant upon the estate for life vested immediately in the grandchildren living at the death of the testator, opened to let in afterborn grandchildren, and vested in them successively at birth, and would be divested as to the shares of those grandchildren only who should die, leaving children, before the determination of the life estate, by force of the direction that such children should take those shares. In this view, all the grandchildren took a vested remainder in fee; and the gift over to the children of any deceased grandchild, inasmuch as it did not depend upon any precedent particular estate, but was by way of substitution for the devise in fee to that grandchild, was an executory devise.

For many reasons, not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience requires that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.

In the will before us, the testator directs the income to be divided annually, in specified and changing proportions, among his five children living at his death and their children, until the youngest grandchild comes of age. He gives no part of the income to children of grandchildren. He gives the fee, when the youngest grandchild comes of age, to the grandchildren and the children of deceased grandchildren. His general intent clearly is to give the income of the estate to the children and grandchildren so long as any grandchild is under age, and the principal to the issue of the five children, whether such issue are his grandchildren or his great-grandchildren.

If all the children and grandchildren should die before any grandchild should come of age, the distribution of the income would necessarily cease. In that event, if any of the grandchildren dying under age should leave children, the effect of holding the remainder to be contingent upon the coming of age of the youngest grandchild would, as that contingency had never happened, cut off the great-grandchildren from any share in the estate, in direct contravention of the general intent of the testator. The more reasonable inference is, that upon the determination of the life estate by the death of all children and grandchildren, for whose benefit it was created, the great-grandchildren would be immediately entitled to the remainder. Castle v. Eate, 7 Beav. 296; Mansfield v. Dugard, Gilb. Eq. 36; S.C. 1 Eq. Cas. Ab. 195, pl. 4. Upon that construction, the contingency contemplated must necessarily happen at some time, either by the arrival of the youngest grandchild at twenty-one years of age, or by the death of all the grandchildren under age; and the case would come within the settled rule that "where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse and ascertained; provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession." Doe v. Considine, 6 Wall. 458, 476; Moore v. Lyons, 25 Wend. 119, 144; Blanchard v. Blanchard, 1 Allen, 223, 227.

The terms in which the testator has expressed his intention likewise point to a vesting of the remainder in all his grandchildren.

The only gift of real estate in remainder to grandchildren is contained in the opening words of the eighteenth clause, by which the testator directs that "after the decease of all my children now living, and when and as soon as the youngest grandchild shall arrive at the age of twenty-one years," the lands "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters," in fee.

This gift is not to such grandchildren only as shall be living at the expiration of the particular estate; but it is to "my grandchildren per capita, the lawful issue of my said sons and daughters," words of description appropriate to designate all such grandchildren.

At the expiration of the particular estate, the lands are to be "inherited and equally divided" among the grandchildren, and "in like manner" the stocks are to be "equally divided" among them. The real estate and the personal property are clearly to go to the same persons and at the same time.

The word "inherited" (which is applied to the real estate only) implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death. Devises or bequests in remainder, by the use of similar words, though preceded, as in this case, by the word "then," have been often held to be vested from the death of the testator. Bullock v. Downes, 9 H.L. Cas. 1; Mortimore v. Mortimore, 4 App. Cas. 448; Parker v. Converse, 5 Gray, 336; Dove v. Torr, 128 Mass. 38. The case of Thorndike v. Loring, 15 Gray, 391, cited for the defendants, is clearly distinguished by the fact that there the bequest of the principal at the expiration of fifty years was confined to "those who would then be my lawful heirs and entitled to my estate if I had then died intestate."

The words "and equally divided per capita," while they qualify the effect of the word "inherited" so far as to prevent a taking by the grandchildren per stirpes as under the statute of descents, also plainly indicate a vested remainder. Words directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of the title in them. For instance, under a devise of an estate, legal or equitable, to the testator's children for life, and to be divided upon or after their death among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in afterborn grandchildren; although the number of grandchildren who will take, and consequently the proportional share of each, cannot of course be ascertained until the determination of the particular estate by the death of their parents. Doe v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167; Dingley v. Dingley, 5 Mass. 535; Doe v. Provoost, 4 Johns. 61; Linton v. Laycock, 33 Ohio St. 128; Doe v. Perryn, 3 T.R. 484; Randoll v. Doe, 5 Dow, 202. So a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest. Shattuck v. Stedman, 2 Pick. 468; Hallifax v. Wilson, 16 Ves. 168; In re Bennett's Trust, 3 K. & J. 280; Strother v. Dutton, 1 DeG. & Jon. 675.

The remainder, being vested according to the legal meaning of the words of gift, is not to be held contingent by virtue of subsequent provisions of the will, unless those provisions necessarily require it. The subsequent provisions of this will had other objects.

The direction that if any grandchild shall have died before the final division, leaving children, they shall take and receive per stirpes the share of the estate, both real and personal, which their parent would have been entitled to have and receive if then living, was evidently intended merely to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren; and its only effect upon that gift is to divest the share of any grandchild deceased leaving issue, and to vest that share in such issue. Smithers v. Willock, 9 Ves. 233; Goodier v. Johnson, 18 Ch. D. 441; Darling v. Blanchard, 109 Mass. 176; 1 Jarman on Wills (4th ed.) 870.

The addition, in the eighteenth clause of the will, of the provisions that any assignment, mortgage or pledge by any grandchild of his share shall be void, and that the executors, in the final partition and distribution, shall convey and pay to the persons entitled under the will, rather tends to show that the testator considered the estate to be vested, and to be in danger of being alienated but for these provisions; and, whatever their legal effect may be, they cannot be construed as making a remainder contingent, which the terms of the previous gift, and the general intent of the testator, as appearing from the whole will, require to be vested. Hall v. Tufts, 18 Pick. 455.

For these reasons, we are of opinion that the will purports to devise to all the grandchildren per capita, children of the five surviving children of the testator, a vested remainder in fee; and to the children per stirpes of any grandchildren deceased before the arrival of the youngest grandchild at twenty-one years of age, a similar estate in fee by way executory devise.

II. To come within the rule of the common law against perpetuities, the estate, legal or equitable, granted or devised, must be one which, according to the terms of the grant or devise, is to vest upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother's womb as in being) and twenty-one years afterwards.

In the case at bar, as the youngest grandchild must be in being in the lifetime of his parent, and that parent was born in the testator's lifetime, the devise to the grandchildren, and even the devise over, upon the arrival of the youngest grandchild at twenty-one years of age, to the children of any grandchild deceased before that time, must necessarily take effect, as to every devisee, within a life or lives in being and twenty-one years afterwards, and therefore do not violate the rule of the common law; and it is unnecessary to consider whether that rule is in force in Ohio.

The statute of Ohio of December 17, 1811, in force at the making of this will and at the testator's death, imposed different restrictions upon grants and devises of real estate, by enacting that "no estate in fee simple, fee tail, or any lesser estate, in lands or tenements lying within this State, shall be given or granted by deed or will to any person or persons, but such as are in being, or to the immediate issue or descendants of such as-are in being, at the time of making such deed or will." 2 Chase's Statutes, 762.

It was assumed at the argument, and can hardly be doubted, that in this statute the words "the time of making such deed or will," which, as applied to a deed, designate the time both of its execution and of its taking effect, denote, as applied to a will, the time when it takes effect by the death of the testator, and not the date of its formal execution. By the law of England, the question of remoteness depends upon the state of facts at the time of the testator's death, though differing from that existing at the date of the will. Williams v. Teale, 6 Hare, 239, 251; Cattlin v. Brown, 11 Hare, 372, 382; Lewis on Perpetuities, Supplt. 53-60, 64; 1 Jarman on Wills, 254.

Under the common-law rule against perpetuities, a devise to a class, some members of which may possibly not take within the prescribed period, is wholly void. Leake v. Robinson, 2 Meriv. 363; Pearks v. Moseley, 5 App. Cas. 714. But that is because, as observed by Sir William Grant, "it is the period of vesting, and not the description of the legatees, that produces the incapacity," and the devise is not "to some individuals who are, and to some who are not, capable of taking." 2 Meriv. 388, 390. The rule of the common law, by which an estate devised must at all events vest within a life or lives in being and twenty-one years afterwards, has reference to time and not to persons. Even the "life or lives in being" have no reference to the persons who are to take, for the testator is allowed to select, as the measure of time, the lives of any persons now in existence; and the "twenty-one years afterwards" are not regulated by the birth or the coming of age of any person, for they begin, not with a birth, but with a death, and are twenty-one years in gross, without regard to the life, or to the coming of age, of any person soever. Cadell v. Palmer, 1 Cl. & Fin. 372; S.C. 7 Bligh N.R. 202.

It is doubtful, to say the least, whether the like effect can be attributed to the statute of Ohio, which has no reference to time, and only avoids devises to persons who are not either in being themselves, or the immediate issue or immediate descendants of persons in being, at the time of the making of the will. The devise of their parent's share to the children of any grandchild deceased before the time of division would seem to be valid as to those great-grandchildren whose parent, a grandchild of the testator, was living at the time of his death, because they would be "immediate issue" of a person in being at that time; and valid also to any great-grandchildren, whose parent, though born after the testator's death, had died before their grandparent, a child of the testator, because they would be, if not "immediate issue," certainly "immediate descendants," of that child, who was in being at that time; and invalid as to those great-grandchildren only, whose parent (as in the case of Mrs. Madeira, daughter of the testator's child Mary Trimble), born since the testator's death, died after their grandparent, and who, therefore, by reason of the interposition of the life of their parent, were neither "immediate issue" nor "immediate descendants" of a person in being when the testator died. See Stevenson v. Evans, 10 Ohio St. 307; Turley v. Turley, 11 Ohio St. 173.

But, however that may be, the conclusion, already announced, that the estate in remainder devised by Duncan McArthur was vested in all his grandchildren per capita, with an executory devise over of the shares of those only who should die, leaving issue, before the final division, removes all difficulty in the application of the statute to the shares devised to the plaintiffs, grandchildren of the testator; for the devise to grandchildren, immediate issue of persons in being at the making of the will, was clearly not prohibited by the statute; and, even under the English rule, the executory devise over of the shares of deceased grandchildren to their children, if void for remoteness, would not defeat the previous valid devise of a vested remainder to the grandchildren, nor alter the share which each living grandchild would take. Cattlin v. Brown, 11 Hare, 372; Lord Selborne, in Pearks v. Moseley, 719, 724, 725; Goodier v. Johnson, 18 Ch. D. 441.

The necessary conclusion is that these plaintiffs, being grandchildren of the testator, took equitable vested remainders under his will. But until the determination of the particular estate by the death of all the testator's children and the arrival at the age of twenty-one years of the youngest grandchild who reached that age, the legal estate in fee being in the executors, the grandchildren owning the equitable estate in remainder had no right to a conveyance of the legal title. The present bill, filed little more than a year after one of the plaintiffs, who was the youngest grandchild of the testator who lived to the age of twenty-one years, arrived at that age, must therefore be maintained, unless the title of the plaintiffs under the will of their grandfather has been defeated by the decree rendered in 1839, setting aside the will.

III. The proceedings relating to the will of Duncan McArthur were had under the statute of Ohio of February 18, 1831, the material provisions of which are as follows:

By section 7, a will bequeathing or devising any personal property or real estate may be brought by the executors, or by any person interested therein, before the Court of Common Pleas, and the testimony of the attesting witnesses reduced to writing, and if it shall thereupon appear that the will was duly executed, and that the testator was of full age and of sound mind and memory, and not under any restraint, the court shall order the will, together with the proof so taken, to be recorded. By section 13, the will is to be recorded in every county in which there is any land devised. By section 16, if the executor named in any will dies or refuses to act, or if no executor is named therein, the court may receive the probate of the will and grant letters of administration with the will annexed. The statute also contains the following sections:

"SECT. 20. If any person interested shall, within two years after probate had. appear, and by bill in chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the last will of the testator or testatrix or not; which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases; but if no person appear in that time, the probate shall be forever binding; saving also to infants, married women, and persons absent from the State, or of insane mind or in captivity, the like period after the removing of their respective disabilities."

"SECT. 22. Appeals may be had from the decision of the Court of Common Pleas to the Supreme Court, when any will or other matter relating thereto shall have been contested." 3 Chase's Statutes, 1786-1788.

The forms of procedure, thus prescribed with regard to the original probate of a will and the subsequent setting aside of the probate, are in some respects peculiar, and their effect has been fully defined by decisions of the Supreme Court of Ohio.

The original probate on the testimony of the attesting witnesses, under section 7, is analogous to the probate in England in common form. The subsequent proceeding by bill in equity, under section 20, to contest the validity of the will, is analogous to the probate in solemn form by the executor upon being cited in by the next of kin; and the jurisdiction exercised by the court and jury is virtually that of a court of probate. Both stages of the proceedings extend to the real estate as well as to the personal property, differing in this respect from the former English probates. Upon the subsequent contest, as upon the original probate, the only issue is will or no will, and the court has not the powers of a court of construction, and has no authority to pass upon the question whether the devises in the will are void for remoteness. Mears v. Mears, 15 Ohio St. 90.

The form of issue being prescribed by the statute, no answer is necessary, and if one is filed, it cannot be read at the trial of the issue. Green v. Green, 5 Ohio, 278. The position of the parties on the record, as plaintiffs or defendants, is immaterial; all are actors; and if some of the heirs are made plaintiffs and some defendants, all have an equal right to contest the will. Runyan v. Price, 15 Ohio St. 1, 6; Bradford v. Andrews, 20 Ohio St. 208, 220.

The bill in equity is so far in the nature of an appeal from the original probate, that the same issue is to be tried anew. Haynes v. Haynes, 33 Ohio St. 598, 618. But, strictly speaking, it is an original proceeding on the chancery side of the Court of Common Pleas, and does not, until final decree, vacate or affect the probate. "The statutory contest of a will lacks the essential elements of an appeal. It has not the same parties as in the court below. In the latter, in fact, it is purely ex parte, while in the Common Pleas it is inter partes." Bradford v. Andrews, 20 Ohio St. 222. The original probate cannot be impeached, except in the form of proceeding given by the statute. Swazey v. Blackman, 8 Ohio, 5, 19; Bailey v. Bailey, 8 Ohio, 239, 246; Mosier v. Harmon, 29 Ohio St. 220. Even while such a proceeding is pending, and until set aside by the final decree therein, the probate is conclusive evidence of the validity of the will, as against all persons, in a collateral suit. Brown v. Burdick, 25 Ohio St. 260.

In a proceeding under the statute to contest the validity of a will, it is error to render final judgment upon a demurrer to the answer; because the provision of the statute, requiring an issue to be made up and tried by a jury, is imperative in its terms, and "was deliberately enacted with a view to prevent a disposition of cases for the contest of wills upon the mere consent or acquiescence of parties in any form." Walker v. Walker, 14 Ohio St. 157, 176.

If a bill to contest the validity of a will is seasonably filed by an infant heir who is within the saving clause of the statute, and there is no defect of parties defendant, and the instrument is found to be no will, the proper decree is to annul the whole order of probate. Meese v. Keefe, 10 Ohio, 362. But persons claiming under the will admitted to probate, who are not made defendants to the bill to set it aside, are not bound, or their rights affected, by the decree upon that bill; and may treat it as a nullity, and maintain actions, against any one claiming under it, for lands devised to them by the will as originally admitted to probate. Holt v. Lamb, 17 Ohio St. 374.

The case of Holt v. Lamb, just referred to, decided in 1867, has so important a bearing on the case at bar that it will be appropriate to state it with some fulness. Sarah Stevenson devised land to her brother George for life, and after his death to be sold and divided between his four daughters, and appointed him her executor. Upon a bill in chancery filed under the statute against him and another brother by the other brothers and sisters and heirs at law of the testatrix (to which those daughters, the devisees in remainder, were not made parties), alleging that the will was not duly executed and that the testatrix was of unsound mind, and an answer filed by him denying these allegations, the court, in 1826, without framing or submitting any issue to a jury, entered a decree setting aside the will. In 1827, upon a petition for partition between the brothers and sisters of the testatrix, the land was ordered to be sold, and was sold and conveyed to a stranger, who afterwards sold and conveyed it to another person. George died in 1863, and his four daughters with their husbands brought an action against the last purchaser and the heirs at law of the testatrix to recover the land.

That case was elaborately and learnedly argued, and the defence was rested on similar grounds to those taken in the case at bar. It was contended that the suit to contest the validity of the will was a proceeding in rem; that the plaintiffs were not necessary parties to it; that they were parties by representation of George Stevenson, the executor, who appeared and filed an answer in the cause, and defended their interests; that if they should have been made parties, the omission to make them parties did not render the decree void against them, and could be availed of only by applying to the court in which that cause was pending to be made parties, or by proceedings in that court to impeach the decree for irregularity; and that they might not have been within the jurisdiction of the court and subject to its process, and after so great a lapse of time it must be presumed that the court for good reasons declined to order them to be brought in. 17 Ohio St. 381, 382.

But the Supreme Court of Ohio, after observing that it had been expressly decided in Walker v. Walker, above cited, that the omission of a jury rendered the decree at least voidable on appeal, and that it was unnecessary to determine whether that omission rendered the decree absolutely void, gave judgment in favor of the plaintiffs, upon the ground that, not having been made parties to the bill to set aside the will, their rights under the will as originally admitted to probate were not affected by the decree, and might be asserted in this action. Judge Welch, delivering the opinion of the whole court, said: "But whatever effect may be given to the decree, or to the verdict of a jury in such case, we have no hesitation in saying, that that effect must be confined to `the parties' in the cause. The words `the parties,' in the section quoted, can have no other legitimate meaning than that of parties to the proceeding. This is their primary legal meaning, and that such is their import here is quite obvious, from their being used in connection with the subject of a `bill in chancery,' which, of itself, implies proper parties. That meaning is made still more obvious from the fact, that to give the words any other meaning would do injustice, by depriving persons in interest of a day in court. The meaning cannot be parties in interest, because such had been spoken of before as `persons interested.' And in the subsequent clause, where the effect of the probate is declared, it is said it `shall be forever binding,' without naming any parties upon whom it is to be so binding. If the same meaning was intended in both places, why were different forms of expression employed? Why use the words `between the parties' in the one case, and omit them in the other? It seems to us quite plain that it was because the intention was to express, what, in fact, ought to be implied in all proceedings in `chancery,' that none but `the parties' to the proceeding were to be bound thereby." "The decree setting aside the will, if binding at all, was binding only `between the parties;' and it binds those parties by way of estoppel. Although the will may be, in fact, a lawful, valid will, the parties to the decree are estopped by it from asserting or proving it to be such will. But the plaintiffs are not so estopped. As to them, it is a valid and subsisting will. They are still estopped by the probate from denying that it is such will. It is to them as though the chancery case had never been commenced. Their rights stand wholly unaffected by the proceeding." 17 Ohio St. 385-387.

In Bradford v. Andrews, above referred to, decided in 1870, it was held that where a proceeding to contest the validity of a will was commenced, within the statutory period of limitation, by some of the heirs only, the right of action was saved to other heirs who were ultimately made parties, and who by their answers joined in the prayer to set aside the will, although they were not brought into the case until after the period of limitation had expired. In the opinion of the court, also delivered by Judge Welch, it was said: "If any person interested appears, and in good faith files his petition for a contest, the statute entitles him to a trial and the verdict of a jury, touching the validity of the will; and that verdict will be binding upon all parties who may be before the court as such at the time of its rendition. The interest of the parties is joint and inseparable. Substantially this is a proceeding in rem, and the court cannot take jurisdiction of the subject matter by fractions. The will is indivisible, and the verdict of the jury either establishes it as a whole, or wholly sets it aside. To save the right of action, therefore, to one is necessarily to save it to all. The case belongs to that class of actions where the law is compelled either to hold the rights of all parties in interest to be saved, or all to be barred."

It is contended by the defendants in the present case that this decision is inconsistent with that in Holt v. Lamb. But we perceive no inconsistency. Apart from the improbability that the court, speaking by the same judge as in Holt v. Lamb, only three years before, intended to overrule or to cast a doubt upon that case without mentioning it, the observation in the first sentence of the statement relied on, that the "verdict will be binding upon all parties who may be before the court as such at the time of its rendition," as well as the further explicit affirmation, already quoted, that the proceeding to set aside the will "is inter partes," clearly shows that the court had no thought of holding that any one, claiming under the will once admitted to probate, was bound by the decree setting it aside, who had not been made a party to the suit in which it was rendered. 20 Ohio St. 219, 222.

In Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638, decided in 1880, in a proceeding by heirs at law, under the statute, to contest the validity of a will, the executors and all the devisees and legatees were made defendants, except one person to whom the will gave a silver watch; and it was held that the omission to make this legatee a party, before trying the issue and rendering the decree setting aside the will, was error, for which those who had been made defendants and taken part in the trial might obtain a reversal of the decree, although the objection was not taken below. The court said: "It is the duty of the plaintiff, instituting a suit to settle a controversy, to see that the necessary parties are brought before the court." And after referring, without intimating any doubt of the correctness of the decision therein, to Holt v. Lamb, as a case in which no question arose as to the decree being reversible in error, but the effect of the decree was drawn in question in a collateral suit, and in which it was held that the parties to the suit in which the decree was rendered were bound by the decree, and it was not void as to them, but that as to all other persons in interest the decree was void; the court observed that "as it was held to be void as to some of the persons in interest and binding as to others, in respect to the same property, it would seem to be necessarily erroneous as to the parties to the suit;" and referred to the decision of the Court of Appeals of Kentucky in Singleton v. Singleton, 8 B. Monroe, 340, 356, as taking a different view of the effect of such a decree, and holding that the verdict must be binding upon all interested in the will, or not binding upon any, and yet recognizing the absence of a necessary party to the decree to be ground for its reversal on error. 35 Ohio St. 642-644.

The decision of the Supreme Court of Ohio in Holt v. Lamb, eighteen years ago, recognized by the same court thirteen years afterwards in Reformed Presbyterian Church v. Nelson, as establishing that under the statute of Ohio a decree setting aside a will was void as against all persons in interest who were not parties to the suit in which it was rendered, and never impugned or doubted in that State, must, upon a question of the construction of a statute of Ohio, the effect of the will of a citizen of Ohio admitted to probate in Ohio, and the title of land in that State, be accepted by this court as conclusive evidence of the law of Ohio, even if a different construction has been given to similar statutes by the courts of other States. McKeen v. Delancy, 5 Cranch, 22; Polk v. Wendall, 9 Cranch, 87; Thatcher v. Powell, 6 Wheat. 119; Elmendorf v. Taylor, 10 Wheat. 152; Suydam v. Williamson, 24 How. 427; Christy v. Pridgeon, 4 Wall. 196; Williams v. Kirtland, 13 Wall. 306. It is therefore unimportant to consider how far the terms of the statutes of other States, construed by the courts of those States in the cases cited by the defendants, corresponded to those of the statute of Ohio.

The case of Fraser v. Jennison, 106 U.S. 191, arose under a wholly different statute of the State of Michigan, providing for an ordinary appeal, which vacated the original probate; and the point decided by this court, in accordance with decisions of the Supreme Court of Michigan, was that on such an appeal, although taken by the heirs at law separately, the validity of the will was a single issue, as regarded all the parties who appeared and contested it.

The general rule in equity, in accordance with the fundamental principles of justice, is that all persons interested in the object of a suit, and whose rights will be directly affected by the decree, must be made parties to the suit. Exceptions to this rule have been admitted, from considerations of necessity or of paramount convenience, when some of the persons interested are out of the jurisdiction, or not in being, or when the persons interested are too numerous to be all brought in. But in every case there must be such parties before the court as to insure a fair trial of the issue in behalf of all.

The plaintiffs in the present case, being as yet unborn, could not, of course, have been made actual parties to the suit in which the decree setting aside the will of their grandfather was rendered; and the question remaining to be considered is, whether there was such a virtual representation of their interests, that they are bound by the decree. This question cannot be satisfactorily or intelligibly treated without first recapitulating the facts.

The will was originally admitted to probate on the testimony of the attesting witnesses; letters testamentary were issued to the two surviving executors of the three named in the will, and to Mrs. Coons, a daughter of the testator, appointed by the Court of Probate, pursuant to the provisions of the will, in the place of the one who died before the testator; and the three executors so appointed were qualified and gave bond, and took upon themselves the executorship.

The bill in equity to contest the validity of the will was filed by Allen C. McArthur, one of the five surviving children and heirs at law of the testator, and afterwards the father of these plaintiffs. The defendants in that bill were the testator's four other surviving children and heirs at law, namely, James McD. McArthur, Mrs. Coons, Mrs. Anderson and Mrs. Trimble, and the husbands of Mrs. Anderson and Mrs. Trimble; all the children who had then been born of those four children of the testator, and who were all then under age, namely, three children of James McD. McArthur, one child of Mrs. Coons, one child of Mrs. Anderson, and one child, born pending the suit, of Mrs. Trimble; the son, daughter, and son-in-law of Mrs. Kercheval, a deceased daughter of the testator; the husband and three sons of Mrs. Bourne, another deceased daughter of the testator; and Samson Mason and Samuel F. Vinton, as devisees in trust of lands not now in question.

The joinder, as defendants in that suit, of Mrs. Kercheval's and Mrs. Bourne's children, and of Mason and Vinton, trustees, is unimportant, and may be laid out of consideration; because the will gave to those children no estate in lands, in fee or for life, legal or equitable; and Mason and Vinton refused to accept their trust, and by answer formally disclaimed all interest in the lands devised to them.

No executor and general trustee under the will was made a defendant in the capacity of executor and trustee. The three executors who had previously qualified and acted had resigned, and their resignations had been accepted by the Court of Probate; two of them a few days before the bill was filed, and the third while it was pending; and no successor of either, and no administrator with the will annexed, was appointed.

The only parties to that suit, then, so far as is material to the question before us, were a son and heir at law of the testator, as complainant, and the other four children and heirs at law, and the grandchildren then in being, each a minor child of one of those four children, as defendants. The bill alleged that these were the only persons specified in the will or having an interest in it, and were the only heirs and personal representatives of the testator. That all the heirs at law were before the court is true, for the five children (with the Kercheval and Bourne grandchildren) were the heirs at law. But, according to the will, the children, as well as the grandchildren, took merely equitable interests. To none of them was any legal title devised. The five present plaintiffs, children of the complainant in that suit, as well as the children afterwards born of the testator's other surviving children, all grandchildren of the testator, and entitled under the will to share with his other grandchildren, were not parties, and, being yet unborn, could not be personally made parties. And although the testator, to secure the interests of all his children and grandchildren, under the will, and, as he declared, to prevent them from being defrauded or imposed upon, had devised the legal title in fee to his executors and their successors, and committed to them the execution of the trusts which he created, yet no personal representative of the testator, no executor or trustee appointed under the will, and no administrator with the will annexed, was a party to the proceeding at the time of the trial of the issue and the rendering of the final decree setting aside the will and annulling the probate.

The only parties to that proceeding, who were of age and capable of representing themselves, were the heirs at law, interested to set aside the will, and one of whom, afterwards father of the present plaintiffs, filed the bill for that purpose. The guardian ad litem, appointed to represent the opposing interest, under the will, of each minor grandchild then in being, was either its parent, interested as an heir at law, and as a party to the suit in his own right, to defeat the will, or was the husband of such a parent and heir at law. Each of the persons so appointed confessed in the answer filed in his own behalf all the allegations of the bill, and in his answer as guardian neither admitted nor denied those allegations. All the appointments of the guardians ad litem were made, all the answers were filed, and the issue to the jury was ordered, in that suit, and the resignation of the sole remaining executrix (who was also one of the heirs at law and guardians ad litem) was tendered and accepted in the court of probate, on one and the same day, within a week before the verdict and final decree.

The charges, made in the present bill, of actual fraud and conspiracy in procuring that decree, having been denied in the answers, and the plaintiffs, by setting down the case for hearing upon bill and answers, having admitted the truth of all statements of fact in the answers, must be taken to be disproved. Those who took part in obtaining that decree may have thought that they were doing the best thing for all persons interested in the estate. But it is impossible to read the record of that case without being satisfied that the verdict and decree were entered without any real contest, and that the heirs at law, whose interest it was to set aside the will, in fact controlled both sides of the controversy: the attack upon the will, as heirs and as parties in their own right; the defence of the will, as guardians ad litem of the only devisees brought before the court.

The appointment of persons, having adverse interests, to be guardians ad litem of the grandchildren then living and made parties defendant, may, so far as those parties were concerned, have been a mere irregularity in the mode of proceeding, for which they could not afterwards collaterally impeach the decree. Colt v. Colt, 111 U.S. 566. But neither the living grandchildren, nor the guardians appointed to represent them, could represent the estate devised by the testator to his executors in trust for unborn grandchildren and great-grandchildren.

In suits affecting the rights of residuary legatees or of next of kin, the general rule is that all the members of the class must be made parties. Davoue v. Fanning, 4 Johns. Ch. 199; Dehart v. Dehart, 2 H.W. Green (N.J.) 471; Hawkins v. Hawkins, 1 Hare, 543, 545 and note; Calvert on Parties (2d ed.), 49, 237. Where they are numerous, and only some of them, together with the executor and trustee under the will, are made parties, the court, upon being satisfied that it has a sufficient number before it to secure a fair trial of the question at issue, may hear the cause. Bradwin v. Harpur, Ambler, 374; Harvey v. Harvey, 4 Beav. 215, and 5 Beav. 134. But it would seem that the decree must be without prejudice to the rights of those who are not made parties, and who do not come in before the decree. Harvey v. Harvey, 5 Beav. 139; Willats v. Busby, 5 Beav. 193, 200; Powell v. Wright, 7 Beav. 444, 450; Calvert on Parties, 72; Hallett v. Hallett, 2 Paige, 15; Rule 48 in Equity, 1 How. lvi. And where a suit is brought by or against a few individuals as representing a numerous class, that fact must be alleged of record, so as to present to the court the question whether sufficient parties are before it to properly represent the rights of all. Lanchester v. Thompson, 5 Madd. 4, 13; Calvert on Parties, 44, 169.

In the proceeding to contest the validity of Duncan McArthur's will, on the contrary, so far from the attention of the court being called to any such question, it was positively alleged in the bill, and not contradicted in any of the answers, that those named as parties in the bill were the only persons specified in that will, and the only persons having an interest in it. Under the Ohio statute and decisions, the court had nothing to do with the construction or the legal effect of the provisions of the will, but had only to try the question of will or no will as between the parties before it, and with no effect upon the rights of those not made parties. The rights of those infant grandchildren who were made defendants, to show cause against the decree, were saved by the express terms of the statute and of the decree itself until their coming of age and for six months afterwards; and no provision was made for the preservation of the rights of after-born grandchildren.

But the graver objection is that at the time of rendering the decree the court had before it no one representing the office of the executors, or the trust estate devised to them.

A trustee who has large powers over the trust estate, and important duties to perform with respect to it, is a necessary party to a suit brought by a stranger to defeat the trust, and often sufficiently represents the beneficiaries. Calvert on Parties, 273; Kerrison v. Stewart, 93 U.S. 155, 160; Campbell v. Watson, 8 Ohio, 498. Where such a trustee for a married woman was not made a party, Mr. Justice Miller, delivering the judgment of this court reversing the decree, said: "How the decree can clear the property of this trust without having the trustee before the court it is difficult to see. This was the object of the suit; but how can it be made effectual for that purpose in the absence of the person in whom the title is vested?" O'Hara v. MacConnell, 93 U.S. 150, 154.

When a will has been once admitted to probate, the estate, so long as the probate remains unrevoked, can only be administered by the executor or by an administrator with the will annexed. The executor is the principal and the necessary representative of the estate vested in him, and of all those interested in it; "the executor," said Lord Hardwicke, "in all cases sustaining the person of the testator, to defend the estate for him, creditors and legatees." Peacock v. Monk, 1 Ves. Sen. 127, 131. By the settled doctrine of the English ecclesiastical courts, in any proceeding to contest the probate or the rejection of a will, or to compel probate in solemn form, the executor is a necessary party, and, unless fraud or collusion is suggested, the only party to represent the will. The executor, in the words of Sir John Nicholl, "prima facie is to be considered as pars principalis or legitimus contradictor;" Wood v. Medley, 1 Hagg. Eccl. 645, 668; and, as observed by Sir Herbert Jenner, "represents and is the protector of the legatees under the will, being specially entrusted by the deceased with the care and management of his property and to see his intentions carried into effect." Hayle v. Hasted, 1 Curt. Eccl. 236, 240, 241. When there has been a probate in common form and there is no executor, the administrator with the will annexed is the proper party to be cited to prove the will in solemn form or to show cause why an intestacy should not be declared. Gascoyne v. Chandler, 2 Cas. temp. Lee, 241.

By the devise in fee to these executors, their appointment by the Court of Probate, and their acceptance of the trust, the legal title in the real estate under the will vested in them. The subsequent acceptance by that court of their resignation of the office of executors no doubt discharged them from the performance of the duties of executors and trustees under the will. But the legal title in the real estate, which had once vested in them, could not be divested without a conveyance, or a decree of a court of chancery, or an appointment by the Court of Probate of new executors and trustees in accordance with the will. At common law, a conveyance, sanctioned or ordered by a court of competent jurisdiction, or at least a new appointment pursuant to the instrument by which the trust was created, would be necessary to divest the title of each trustee; and no statute or decision in Ohio, establishing a different rule in this respect, has been brought to our notice. The three executors and trustees who had once accepted and acted as such, therefore, still held the legal title. In re Van Wyck, 1 Barb. Ch. 565, 570; Drury v. Natick, 10 Allen, 169, 183; Wooldridge v. Planters' Bank, 1 Sneed, 296; 2 Washburn on Real Property (4th ed.) 512, 513. And as holders of that title they were necessary parties to the suit. Adams v. Paynter, 1 Collyer, 530, 534.

But even if the mere legal title could be deemed, upon the acceptance by the Court of Probate of the resignation of two of the executors and trustees, to have vested in the remaining one, Mrs. Coons, and upon the acceptance of her resignation to have vested in the heirs at law, the more serious difficulty remains. The heirs did not succeed to the office of executors, and neither Mrs. Coons after her resignation, nor all the heirs, could represent the testator's will, or the trust created by it, or the beneficiaries of that trust. The heirs were not alleged in the bill to be trustees, were not made parties as trustees, did not answer as trustees; but were actors in support of their individual rights only, asserting, one of them by allegations in his bill, and the others by confession in their answers of those allegations, a title adverse to the will and to the trusts created by it.

The resignation of the persons who had been appointed executors and trustees did not dispense with the presence of representatives of the testator and of the trust estate. It was necessary that others should be appointed in their stead to represent the estate devised to the executors in trust for the protection of the cestuis que trust designated in the will, and especially the interests of those who might be born in the future, and who could not be otherwise sufficiently represented.

No additional force is given to the decree, rendered without having any such representatives before the court, by the allegation in that bill that no persons could be found whom the court was willing to appoint executors and who were able to give the requisite bonds, or by the allegation in the answer of Mrs. Coons that one reason for her resignation of the office of executrix was the impossibility of procuring suitable associates. Those were wholly irrelevant allegations, which the court, sitting in chancery to try the single issue of the validity of the will, had no authority to pass upon, or to assume to be true. The power and the duty, upon any vacancy in the office of executors or trustees under a will, to appoint new executors or trustees, or administrators with the will annexed, was in the court acting strictly as a court of probate. Statutes of Ohio of March 12, 1831, § 22, and February 18, 1831, §§ 16, 25; 3 Chase's Statutes, 1779, 1787, 1788. The alleged impossibility of finding proper persons to accept the, office of executors affords no more excuse for holding a decree binding upon persons not otherwise represented, than it would for disregarding a will which had been admitted to probate, and settling the estate as if the deceased had died intestate.

Nor can we doubt that the court, in the exercise of the appropriate branch of its jurisdiction, might in its discretion have granted administration limited to the single object of defending the will and the probate against the bill in equity of the heirs. Courts vested with the jurisdiction of granting letters testamentary and of administration have the inherent power of granting a limited administration, whenever it is necessary for the purposes of justice; as, for instance, durante minore ætate, while the executor named in the will is under age; durante absentia, when he is out of the jurisdiction and therefore has not taken out letters testamentary; or ad litem, to defend a suit in chancery while the probate of a will is under contest; and the powers exercised by the English courts in this respect appertain to the courts of like jurisdiction in this country, although not specified in the statutes under which they act. Davis v. Chanter, 2 Phillips, 545, 550, 551; 1 Williams on Executors (7th ed.) 479, 502, 523, 524; Griffith v. Frazier, 8 Cranch, 9, 26; Martin v. Dry Dock Co., 92 N.Y. 70; McNairy v. Bell, 6 Yerger, 302; Jordan v. Polk, 1 Sneed, 429, 434.

These defendants rely on Andrews v. Andrews, 7 Ohio St. 143, as showing that to a bill in equity by the heirs at law under the Ohio statute to set aside a will which has been admitted to probate, the executors are not necessary parties. But in that case, a will bequeathing the bulk of the testator's property to certain charitable corporations having been set aside upon a bill by the heirs against the executors and the residuary legatees, the only point decided was that the executors were not bound to assume the burden of the defence, or entitled to charge the expense thereof to the estate; and the court, in delivering judgment, said that, in analogy to ordinary cases in chancery, it had been the general, and perhaps uniform, practice to make the executors, as well as legatees and devisees, parties defendant, and that, "granting the propriety, and even the necessity, of the practice," it did not follow that the executor was therefore bound to take upon himself the burden of the contest. 7 Ohio St. 151. The court thus recognized, what is indeed self-evident, that the question whether the executor is bound to make an active defence at the expense of the estate is wholly different from the question whether he must be made a party, and so have an opportunity to defend the interests which he represents. In later cases in that State, the practice of making the executor a party has been followed, and it has never been intimated that his presence could be dispensed with, although he has been held not to be of himself a sufficient representative of the devisees and legatees to make the decree binding on them. Holt v. Lamb, 17 Ohio St. 374, and Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638, already cited. But costs in probate cases generally rest in the discretion of the court, and are often not allowed even to the prevailing party. Summerell v. Clements, 32 Law Journal (Prob.) 33 and note; Nichols v. Binns, 1 Sw. & Tr. 239; Mitchell v. Gard, 3 Sw. & Tr. 275; Davies v. Gregory, L.R. 3 P. & D. 28; Mumper's Appeal, 3 W. & S. 441; Chapin v. Miner, 112 Mass. 269. In Andrews v. Andrews, no trust was created by the will; but the bequest was outright to existing corporations, themselves parties to the suit, and capable of representing their own interests; and under such circumstances there would seem to have been no reason why the executor should have incurred any expense in the matter. Dyce Sombre v. Troup, Deane, 22, 119, 120; S.C. on appeal, nom. Prinsep v. Dyce Sombre, 10 Moore P.C. 232, 301-305.

The cases in courts of general chancery jurisdiction, cited in behalf of the defendants, are clearly distinguishable from the case before us, and naturally range themselves in several classes.

Some of them were of mere changes of investment, leaving undiminished the interests of all parties in the property in its new form. Such were Sohier v. Williams, 1 Curtis, 479; Faulkner v. Davis, 18 Gratt. 651; and Knotts v. Stearns, 91 U.S. 638. To the same class belong suits for partition, which are either for a division in severalty of lands before held in common, or else for a sale of the whole land, and a division or investment of the proceeds for the benefit of those who, but for the sale, would have had interests in the land. In the case of a strict partition, by division of the land itself, it is sufficient to make the present owner, or, in some cases, the tenant for life of each share, a party, because the interest of those who come after him is not otherwise affected than by being changed from an estate in common to an estate in severalty. Wills v. Slade, 6 Ves. 498; Gaskell v. Gaskell, 6 Sim. 643; Clemens v. Clemens, 37 N.Y. 59; Calvert on Parties, 60, 259. In the case of a partition by sale of the land, and a division or investment of the proceeds according to the interests in the several shares, the interests of all persons in the proceeds correspond to their respective interests in the land, and are secured by the decree of sale. Mead v. Mitchell, 17 N.Y. 210; Basnett v. Moxon, L.R. 20 Eq. 182. But a decree for partition of either kind, which cuts off remaindermen, not then in esse, from having, when they come into being, any interest in either land or proceeds, does not bind them. Monarque v. Monarque, 80 N.Y. 320; Downin v. Sprecher, 35 Maryland, 474.

Another class of cases is that of creditors, who are entitled to present payment of their debts, whoever may be the future owner of the estate. For instance, in a bill to enforce a debt charged upon real estate devised to one for life, with contingent remainder to his unborn son, the executor and the tenant for life are sufficient parties, because, as was said long ago by Lord Hardwicke, if there is no one in whom the estate of inheritance is vested, "it is impossible to say the creditors are to remain unpaid and the trust not to be executed until a son is born. If there is no first son in being, the court must take the facts as they stand." Finch v. Finch, 2 Ves. Sen. 491; Baylor v. Dejarnette, 13 Gratt. 152, 168. See also Goodchild v. Terrett, 5 Beav. 398.

In some other cases, when all the interests are legal and not equitable, the owner of the first estate of freehold, representing the whole estate, and identified in interest with all who come after him, sufficiently represents those yet unborn. In the case of an estate tail, for instance, Lord Redesdale held it to be sufficient, in order to bind contingent remaindermen, to bring before the court the first tenant in tail (although an infant, incapable at law of barring remaindermen), and if no tenant in tail in being, the first person entitled to the inheritance, and if no such person, then the tenant for life. But the reason assigned by that great master of equity pleading was, "that where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive." Giffard v. Hort, 1 Sch. & Lef. 386, 408; Calvert on Parties, 55-60. The necessity of the case being the only reason for this, it follows that where the successive estates are equitable, and supported by a legal estate devised in trust, the trustees also are necessary parties. Hopkins v. Hopkins, West Ch. 606, 619; S.C. 1 Atk. 581, 590; Cholmondeley v. Clinton, 2 Jacob & Walker, 1, 133; Mullins v. Townsend, 5 Bligh N.R. 567, 591; S.C. 2 Dow & Cl. 430, 438; Ex parte Dering, 12 Sim. 400; Calvert on Parties, 253, 327.

So in the case of a bill in equity for the construction of a will, the court, from necessity, in order to protect the trustee and to give proper instructions as to the execution of the trusts, is sometimes obliged to settle the validity and effect of contingent limitations even to persons not in being. But, as was said by Mr. Justice Grier in Cross v. De Valle, 1 Wall. 1, 16, "It is this necessity which compels the court to make such cases exceptions to the general rule;" and, as Chancellor Walworth observed in Lorillard v. Coster, 5 Paige, 172, 215, there cited, "the executors and trustees must be considered as the legal representatives of the rights of persons not yet in esse." And they are necessary parties. Nonnelay v. Balls, 6 Jur. 550. In Palmer v. Flower, L.R. 13 Eq. 250, cited for the defendants, in which the court construed a will without bringing in a child born pending the suit, who had like interests with parties already before the court, the trustee was a party.

In the cases in which bills in equity, without an executor or administrator being made a party, have been maintained while the probate or the administration was being contested in the ecclesiastical court, the court of chancery exercised a jurisdiction, concurrent with that of the ecclesiastical courts in appointing special administrators, for the simple purpose of preserving the property until there was some person entitled to receive it. Montgomery v. Clark, 2 Atk. 378; King v. King, 6 Ves. 172; Atkinson v. Henshaw, 2 Ves. & B. 85; Watkins v. Brent, 1 Myl. & Cr. 97; Whitworth v. Whyddon, 2 Macn. & Gord. 52; Statute of Ohio of March 12, 1831, § 8, 3 Chase's Statutes, 1777. Under like circumstances, a bill of discovery of real assets can be maintained only to preserve a debt. Conway v. Stroude, Freem. Ch. 188; Plunket v. Penson, 2 Atk. 51.

In a suit in which a general administration of the assets of a deceased person is necessary to the relief prayed, an allegation that a suit is pending in the ecclesiastical court for a grant of administration may prevent the bill from being held bad on demurrer; because in equity it is sufficient if administration is obtained at any time after bill filed and before a hearing upon the merits. Penny v. Watts, 2 Phillips, 149, 154; Fell v. Lutwidge, Barnard. Ch. 319, 320; Humphreys v. Humphreys, 3 P. Wms. 349, 351; Simons v. Milman, 2 Sim. 241; Beardmore v. Gregory, 2 Hem. & Mil. 491. But it has been uniformly held that such a suit cannot proceed to a final decree, even when the executor is out of the jurisdiction, or no executor has been appointed, until an appointment of a personal representative has been made within the jurisdiction, by the competent court; and it appears to be settled in England that this must be a general administrator, unless the court of probate, upon application made to it for administration, insists on appointing an administrator ad litem only. Mitford Pl. (4th ed.) 177, 178; Tyler v. Bell, 1 Keen, 826, and 2 Myl. & Cr. 89; Green v. Lane, 16 Jur. 1061; Devaynes v. Robinson, 24 Beav. 86, 98; Cary v. Hills, L.R. 15 Eq. 79; Rowsell v. Morris, L.R. 17 Eq. 20; Dowdeswell v. Dowdeswell, 9 Ch. D. 294.

In England, while the probate of wills in the ecclesiastical court was conclusive as to the personal estate only, a court of chancery, upon a bill by creditors for the sale of real estate for the payment of debts, or by beneficiaries to enforce trusts created by the will, might indeed render a decree as between the parties before it; and sometimes, as incident to such decree, would declare that, as between them, the will was established. But no decree establishing the will in the absence of the heir at law, even if out of the jurisdiction or not to be found, could bind him. French v. Baron, 2 Atk. 120; S.C. 1 Dick. 138; Banister v. Way, 2 Dick. 599; Smith v. Hibernian Mining Co., 1 Sch. & Lef. 238, 241; Fordham v. Rolfe, Tamlyn, 1, 3, and note; Waterton v. Croft, 6 Sim. 431; Mitford Pl. 173; Calvert on Parties, 218-220; 1 Maddock Ch. Pract, 604; Story Eq. Pl. § 87; Rule 50 in Equity, 1 How. lvi.

Executors and trustees, appointed by the testator to perform the trusts of the will and to protect the interests of his beneficiaries, are as necessary parties to a proceeding to annul a probate, as the heirs at law are to a suit to establish the validity of a will. And upon a review of the cases no precedent has been found, either in a court of probate or in a court of chancery, in which a decree disallowing a will, rendered in a suit brought to set it aside, or to assert an adverse title in the estate, without making such executors, or an administrator with the will annexed, a party to the suit, has been held binding upon persons not before the court.

As under the statute of Ohio, as construed by the Supreme Court of that State, a decree annulling the probate of a will is not merely irregular and erroneous, but absolutely void, as against persons interested in the will and not parties to the decree, and as these plaintiffs were neither actually nor constructively parties to the decree setting aside the will of their grandfather, it follows that that decree is no bar to the assertion of their rights under the will. To extend the doctrine of constructive and virtual representation, adopted by courts of equity on considerations of sound policy and practical necessity, to a decree like this, in which it is apparent that there was no real representation of the interests of these plaintiffs, would be to confess that the court is powerless to do justice to suitors who have never before had a hearing.

The subsequent partition among the heirs at law, and the conveyances by them to third persons for valuable consideration, cannot affect the title of these plaintiffs. All the facts upon which that title depends appeared of record in judicial proceedings, of which all persons, whether claiming under or adversely to the will, were bound to take notice. The will and the original probate thereof were of record in the county in which the probate was granted. The will as there recorded showed the estate devised to these plaintiffs and to the executors in trust for them. The recording of the will and probate in any other county in which there was land devised was required for the purpose of evidence only, and not to give effect to the probate. Hall v. Ashby, 9 Ohio, 96, 99; Carpenter v. Denoon, 29 Ohio St. 379, 395. The record of the decree setting aside the will showed that neither these plaintiffs, nor any executors or successors of executors in the trust, were parties to the suit; and consequently that the plaintiffs' title under the will, as originally admitted to probate, was not affected by that decree. The subsequent purchasers must therefore look to their vendors, and have no equity as against these plaintiffs. Even a purchaser of land sold under a decree in equity, though he is not affected by mere irregularity in the mode of proceeding against the parties to the suit in which the decree is rendered, yet, as has been observed by Lord Redesdale, and repeated by the Supreme Court of Ohio, is to see that all proper parties to be bound are before the court, and that taking the conveyance he takes a title that cannot be impeached aliunde. Bennett v. Hamill, 2 Sch. & Lef. 566, 577; Massie v. Donaldson, 8 Ohio, 377, 381.

The present suit does not seek to annul or impeach a decree of a State court granting or refusing probate of a will, but to assert the title of the plaintiffs under a probate granted according to the law of the State, and which, by that law, stands unaffected, as to them, by the subsequent proceedings between other parties, and conclusively establishes their title. The case thus avoids the difficulties considered in Ellis v. Davis, 109 U.S. 485, and cases there cited.

The decree of the Circuit Court must therefore be reversed, and the case remanded for further proceedings in conformity with this opinion.

MR. CHIEF JUSTICE WAITE (with whom MR. JUSTICE HARLAN concurred), dissenting.

Mr. Justice Harlan and myself are unable to agree to this judgment. In our opinion the decree of the Ross County Court of Common Pleas, setting aside the will of Duncan McArthur, is binding on the complainants in this case. The devise of the property in dispute was in its legal effect to a class of persons, that is to say, to the grandchildren of the testator, the lawful issue of his five surviving children, when the youngest or last grandchild should arrive at the age of twenty-one years. If a grandchild died before the division of the estate, leaving a child or children, his or her share was to go to his or her child or children. All the children of the testator, and all the grandchildren in being when the decree was rendered, were parties to the suit. Thus it appears that at the time of the decree all persons then in life of the class of devisees to which the complainants belong were in court and subject to its jurisdiction.

This court now decides that these grandchildren, living at the death of the testator, took in equity a vested remainder at once, subject to open and let in afterborn grandchildren. Such being the case, it seems to us that the grandchildren in whom such estate vested represented those to be born afterwards for all the purposes of a contest of the will under the Ohio statute governing that proceeding. At most, the executors and the executrix held only the naked legal title. The equitable title was in the grandchildren. Under these circumstances the failure to cause new executors to be appointed after the resignation of those who had legally qualified, and to bring them in as parties, is not, in our opinion, fatal to the decree. The entire equitable estate was represented by the grandchildren in being, and whatever is sufficient to bind them must, as we think, bind also those of the same class of devisees with themselves who were afterwards born.

The devise of the legal title was to the "executors and the successors of them." The two executors who qualified resigned their offices, and their resignations were accepted, before the suit was begun. Mrs. Coons, the executrix, did not resign until afterwards, and she was made a party to the suit both in her representative and individual capacity. Before her resignation, and before the suit was begun, she had succeeded to all the rights of the executors in the property. She was the successor of the executors who had resigned, and as such alone represented the legal title. She continued a party to the suit until the final decree. It is difficult to see, therefore, why the naked legal title, which was all the executors took under the will, was not represented in the suit during the whole course of the proceeding.

But whether this be so or not is to our minds a matter of no importance. The suit was brought to contest the will. The grandchildren of the testator, the lawful issue of his five enumerated children, formed one class of beneficiaries provided for in the will. As a class, their interests were opposed to the contestants. Those of the class who were in being took the title as well for themselves as for those who should be afterwards born. The interests of those in being and those born afterwards were in all respects the same. It would seem, therefore, that whatever bound those who held the title should bind all those not then in being for whom they held it. Otherwise, as in Ohio, no suit can be brought to contest a will except within two years after probate, it is difficult to see how a will can be contested there when the devise is to a class of persons which may not be full until after that period has elapsed. It is no part of the duty of executors to defend a will against a contest. That is left to the devisees or those interested in sustaining the will. As this, in our opinion, disposes of the case, we have deemed it unnecessary to refer specially to any of the other questions which were presented for argument.

MR. JUSTICE MATTHEWS, having been of counsel, did not sit in this case, or take any part in the decision.