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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 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. 642-644.
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 ▼.
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. CT. 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,
sacn a miror child of one of those four children, as defendants. The bill al leged that these were the only persons specified in the will or having an in terest 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 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 defense 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; S. C. 4 SUP. CT. REP. 553. 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. Davous
v. Fanning, 4 Johns. Ch. 199; Dehart v. Dehart, 3 N. J. Eq. 471; Hawkins v. Hawkins, 1 Hare, 543, 545, and note; Calv. 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, Amb. 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, Id. 139; Willats v. Busby, Id. 193, 200; Powell v. Wright, 7 Beav. 444, 450; Calv. 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; Calv. 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. Calv. 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. Sr. 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. Ecc. 645, 668;) and, as observed by Sir HERBERT JENNER, "represents and is the protector of the legatees under the will, being specially intrusted by the deceased with the care and management of his property, and to see his intentions carried into effect." Hayle v. Hasted, 1 Curt. Ecc. 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 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 un der 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 Washb. Real Prop. (4th Ed.) 512, 513. And as holders of that title they were necessary parties to the suit. Adams v. Paynter, 1 Colly. 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. St. Ohio, March 12, 1831, § 22, and February 18, 1831, §§ 16, 25; 3 Chase's St. 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