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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, L. R. 5 App. Cas. 719, 724, 725; Goodier v. Johnson, L. R. 18 Ch. Div. 441.
The necessary conclusion is that these plaintiffs, being grandchildren of the testator, took equitable vested remainders under his will. But until the termination of the particular estate by the death of all the testator's children, and the arrival at the age of 21 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 21 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.
3. 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 nimed 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:
“Sec. 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.”
“Sec. 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 St. 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 comnon 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 jurisiliction
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. Suazey's Heirs 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 pend. ing, 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 preventos 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 adınitted 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 adinitted 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 fullness. 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 defense 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 for 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
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 a verdict by 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 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 de-* cision 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. Mon. 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. 612-644.
The decision of the supreme court of Ohio in Holt v. Lamb, 18 years ago, recognized by the same court 13 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's Lessee v. Wendal, 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, S. C. 1 SUP. Cr. REP. 171, 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 adınitted 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,