Opinion of the Court. 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 Opinion of the Court. 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. 642644. The decision of the Supreme Court of Ohio in Iolt 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 ap peared and contested it. The general rule in equity, in accordance with the funda mental principles of justice, is that all persons interested in the Opinion of the Court. 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 Opinion of the Court. 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 aş 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 Opinion of the Court. 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 hear ing 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. |