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 Phil. 545, 550, 551; 1 Williams, Ex'rs, (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 Yerg. 302; Jordan v. Polk, 1 Sneed, 429, 434.

These defendants rely on Andrews' Ex'rs v. His Adm'rs, 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 defense, 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. Id. 151. The court thus recognized what is indeed self-evident, that the question whether the executor is bound to make an active defense 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 J. Prob. 33, and note; Nichols v. Binns, 1 Swab. & T. 239; Mitchell v. Gard, 3 Swab. & T. 275; Davies v. Gregory, L. R. 3 Prob. & Div. 28; Mumper's Appeal, 3 Watts & S. 441; Chapin v. Miner, 112 Mass. 269. In Andrews' Ex'rs v. His Adm'rs, 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 & S. 22, 119, 120; S. C. on appeal, sub 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 Curt. 479; Faulkner v. Davis, 18 Grat. 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; Calv. 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 remainder-men, 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 Md. 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. Sr. 491; Baylor's Lessee v. Dejarnette, 13 Grat. 152, 168. See, also, Goodchild v. Terrett, 5 Beav. 398.

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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 remainder-men, to bring before the court the first tenant in tail, (although an infant, incapable at law of barring remainder-men,) 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 Schoales & L. 386, 408; Calv. 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 Jac. & W. 1, 133; Mullins v. Townsend, 5 Bligh, 567, 591; S. C. 2 Dow & C. 430, 438; Ex parte Dering, 12 Sim. 400; Calv. 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 con

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strued 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 Mylne & C. 97; Whitworth v. Whyddon, 2 Macn. & G. 52; St. Ohio, March 12, 1831, § 8; 3 Chase's St. 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 Phil. 149, 154; Fell v. Lutwidge, Barn. Ch. 319, 320; Humphreys v. Humphreys, 3 P. Wms. 349, 351; Simons v. Milman, 2 Sim. 241; Beardmore v. Gregory, 2 Hem. & M. 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. Mitf. Eq. Pl. (4th Ed.) 177, 178; Tyler v. Bell, 1 Keen, 826, and 2 Mylne & C. 89; Groves 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, L. R. 9 Ch. Div. 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 Mine Co. 1 Schoales & L. 238, 241; Fordham v. Rolfe, Tam. 1, 3, and note; Waterton v. Croft, 6 Sim. 431; Mitf. Eq. Pl. 173; Calv. Parties, 218-220; 1 Madd. Ch. Pr. 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, he 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 Schoales & L. 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, S. C. 3 SUP. CT. REP. 327, 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. Justice MATTHEWS, having been of counsel, did not sit in this case, or take any part in the decision.

*WAITE, C. J., 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 21 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 re

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mainder at once, subject to open and let in after-born 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 in argument.

(118 U. S. 585)

PEARCE and another v. HAM.

(October Term, 1884.)

PARTNERSHIP-CONTRACT-FRAUDULENT EXCLUSION OF One Partner BY ANOTHER FROM PROFITS, AND SUBSTITUTION OF A THIRD PARTY.

P. having undertaken, without any just cause, to exclude his partner, H., from an interest in a valuable contract, in which they were equally concerned, and to take in K. in his stead; and K., knowing that P. could not rightfully exclude H., and conspiring with P. to accomplish that purpose, having undertaken to appropriate to himself the profits of the contract, which of right belonged to H.,-such actings and doings of K. and P. had no effect upon the rights of H., and H. is entitled to one-half of the profits of the contract.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

*John M. Palmer, for appellants. S. P. Wheeler, for appellee.

WOODS, J. The bill was filed by Charles I. Ham, the appellee, against Isaac N. Pearce and Andrew J. Kuykendall, the appellants. The record