properly united with the administrator. And when in a similar case the fraudulent administrator had at different times conveyed portions of the land to different grantees, an action by the heirs of the deceased owner against the administrator and all of these grantees, was sustained. "If there is a common point of litigation, the decision of which affects the whole number of defendants, and will settle the rights of all, they may all be joined in the same proceeding." 2

§ 353. An administrator is not a necessary party defendant unless some claim is made against the estate which he would have the right to resist, or unless the judgment would be in some manner prejudicial to the estate; a fortiori, he is not a necessary defendant when the immediate object of the action is to increase the amount of assets available to the payment of the debts of the deceased, even though the ultimate purpose of the proceeding may be the benefit of the creditor who prosecutes it. Thus, where the deceased in his lifetime had received an absolute deed of lands, which he did not put upon record, and had subsequently with a fraudulent intent destroyed this deed, and procured the grantor therein to execute another conveyance of the same land without consideration to a third person who took the same with full knowledge and collusively and put the same upon record, a judgment creditor of the deceased, whose judgment was recovered while the deceased held the deed to himself, brought an action against the second grantee and the heirs and widow of the deceased, seeking to set aside the second deed, and to establish the original title of the judgment debtor, and to enforce the lien of his own judgment upon the land; this action was held to have been properly brought against the defendants named. The administrator of the deceased was held not to be a necessary party defendant, because the proceeding was really for the benefit of the estate, and he could make no opposition if he were present.3

1 Bassett v. Warner, 23 Wisc. 673. This case is plainly the same in principle as the suit by a judgment creditor against a fraudulent debtor and his grantee.

2 Bowers v. Keesecher, 9 Iowa, 422, 424; citing Story's Eq. Pl. §§ 284, 584; Bugbee v. Sargent, 23 Me. 271; Rayner r. Julian, Dickens, 677; Brinkerhoff v. Brown, 6 Johns. Ch. R. 152; Varick v. Smith, 5 Paige, 160.

3 Cornell v. Radway, 22 Wisc. 260, 265, per Dixon C. J. It was said that the administrator or executor might bring the suit; but this authority did not take away the right of the creditor. R. S. of Wisconsin, ch. 100, §§ 16-18. But see per contra, as to the necessity of the personal representative being made a party in such actions, 1 Dan. Ch. Pl. (4th Am. ed.), p. 200, and cases cited.

§ 354. In actions by creditors against executors or administrators to recover debts alleged to be due from the deceased, or by the owners of the property to recover assets which had been in the possession of the deceased and apparently belong to his estate in the hands of his personal representatives, the legatees or next of kin are not necessary nor even proper parties defendant. The executors or administrators represent the estate. They can bring all suits to recover property in the hands of third persons alleged to belong to the estate, without joining the legatees or distributees as coplaintiffs, and on the same principle they can defend all actions brought against themselves, involving the ownership of property in their own hands, or the indebtedness of the estate, without the presence of legatees and next of kin as codefendants. Thus in an action against executors to reach certain moneys and securities in their possession as apparent assets, but which it was claimed had been held by the testator in trust for the plaintiff and actually belonged to him, the legatees were held not to be necessary defendants.1 And in an ordinary suit to recover a debt due from the deceased, brought against the administrator, the widow, and the next of kin, it was held that all these defendants, except the administrator, were improperly joined; he represents them, and his defence is their defence.2

§ 355. A different rule, however, prevails in an action by a distributee against the administrator, legatee against the executor, or beneficiary against the trustee, when the right asserted, if it exists at all, is also held by all the other parties similarly

1 King v. Lawrence, 14 Wisc. 238.

2 Nelson v. Hart, 8 Ind. 293. That the personal representatives are the only proper defendants in such actions, see Story's Eq. Pl., §§ 104, 140; Anon. 1 Vern. 261; Lawson v. Barker, 1 Bro. C. C. 303; Brown v. Dowthwaite, 1 Mad. 446; Jones v. How, 7 Hare, 267; Haycock v. Haycock, 2 Ch. Cas. 124; Jennings v. Paterson, 15 Beav. 28; Micklethwait v. Winstanley, 13 W. R. 210; Pritchard v. Hicks, 1 Paige, 270; Wiser v. Blachly, 1 Johns. Ch. 437. In general, all the personal representatives must be joined. Offey v. Jenny, 3 Ch. Rep. 92; Hamp v. Robinson, 3 DeG., J. & S. 97. But if an executor has not proved, he need not be joined. Strickland v. Strickland, 12 Sim.

463; Dyson v. Morris, 1 Hare, 413. When, however, the estate has been distributed by a decree of the proper court, the executors or administrators need not be made defendants in an action brought by a creditor to reach the assets in the hands of the legatees or distributees. Farrell v. Smith, 2 B. & B. 337; Clegg v. Rowland, L. R. 3 Eq. 368. And, in an action by a creditor against the heirs and devisees of his deceased debtor, to make his claim out of the land of the deceased in their hands, the joinder of such heirs and devisees was held proper, since the judgment could provide for the order of their liabilities. Rockwell. Geery, 6 N. Y. Sup. Ct. 687; Schermerhorn v. Barhydt, 9 Paige, 28.

situated with the one who sues, and the decision would in fact determine all their rights. In such a case, in order that the trustee may not be subjected to a multiplicity of suits, when the whole controversy could be decided in one, the equitable doctrine primarily requires that all the distributees, legatees, or beneficiaries should unite as plaintiffs; but if any refuse to join, they should be made defendants.1 The statutes of several States permit an equitable action to be brought by the heirs of the testator to set aside a will of lands for any cause which can invalidate it. In such a suit the devisees under the will are indispensable defendants.2 In fact, the executor can hardly be called a necessary party, for he takes no interest in the land. Conversely, in an action to reach the land of a deceased intestate, his heirs are indispensable defendants, without whom no decree can be made, and it is difficult to see how the administrator could be a necessary party.3

§ 356. V. Actions involving Trusts, express or implied. implied. It is a universal and elementary rule that, in an action to enforce the performance of an express trust, the trustee is an indispensable defendant. This doctrine was applied in a case where a debtor had transferred personal property to a trustee upon trust to sell the same, and out of the proceeds to pay the demands of the creditor. The directions of the trust not having been complied with, the creditor brought an action against the debtor alone to foreclose the trust deed and for a sale of the goods. The trustee was held to be a necessary defendant. Where there were orig

1 Dillon v. Bates, 39 Mo. 292.

2 Eddie v. Parke's Executors, 31 Mo. 513. The action was brought against the executors alone. See Morse v. Morse, 42 Ind. 365; infra, § 379, note.

3 Muir v. Gibson, 8 Ind. 187, 190. See Silsbee v. Smith, 60 Barb. 372. In an action for an account of personal estate which came into the hands of a deceased administrator or executor, his personal representatives are necessary defendants. As to the necessary parties in an action to construe a will, see McKethan v. Ray, 71 N. C. 165, 170.

4 Tucker v. Silver, 9 Iowa, 261, per Wright C. J. After stating the rule as laid down in the text, the court declares that it has not been changed by the new procedure. See also McKinley v. Irvine,

13 Ala. 681; Cassiday v. McDaniel, 8 B. Mon. 519; Morrow v. Lawrence, 7 Wisc. 574; Jones v. Jones, 3 Atk. 110. And, in general, all the trustees must be joined. Coppard v. Allen, 2 DeG., J. & S. 173. But a trustee who has never acted, and has released all his interest to his co-trustee, need not be made a party. Richardson v. Hulbert, 1 Anst. 65. When a trustee has assigned his interest in the trust estate, in general both he and the assignee should be defendants. Story's Eq. Pl., § 209; Bailey v. Inglee, 2 Paige, 278. But if he has assigned his entire interest absolutely, the assignee alone should be sued, unless the assignment was a breach of trust. Story's Eq. Pl., §§ 211, 213, 214; Munch v. Cockerell, 8 Sim. 219. As examples of this general

inally two or more trustees, and one or more have died, in an action by the beneficiary to enforce the trust, and especially if a violation thereof is alleged against all the trustees, the survivors and the personal representatives of the deceased not only may be united as codefendants,' but they must be so joined, or else no decree enforcing the trust can be made.2

§ 357. There is a broad distinction between the case of an action brought in opposition to the trust, to set aside the deed or other instrument by which it was created, and to procure it to

be declared a nullity, and that of an action brought in furtherance of the trust, to enforce its provisions, to establish it as valid, or to procure it to be wound up and settled. In the first case, the suit may be maintained without the presence of the beneficiaries, since the trustees represent them all and defend for them. In the second, all the beneficiaries must be joined, if not as plaintiffs, then as defendants, so that the whole matter may be adjusted in one proceeding, and a multiplicity of suits avoided. The reason of this distinction is obvious. It is, that any one person interested in opposition to the trust has a right to test the validity thereof, and his voluntary action cannot be controlled by the will of others, while the trustees themselves are sufficient to represent and defend all the interests of those who claim. under the trust. But when the trust is assented to, and the purpose is simply to carry out its provisions, all the beneficiaries are alike interested in that object and in reaching that same result, and it is just to the trustee that the controversy should be ended in one proceeding. As illustrations of this principle: In an action brought to set aside a trust deed made by a railroad company to a trustee for the benefit of bondholders, and to restrain a sale of the road thereunder, the beneficiaries under the trust were declared not to be necessary or even proper parties, and the application of one of them a bondholder- to be admitted as a defendant was denied, although he alleged that the trustee intended to make no defence, and was actually colluding with the plaintiff and the company. On the same principle, where a testator had devised all his lands to his executors with

1 Winslow v. Minn., &c. R. R., 4 Minn. 313, 316. The suit was brought against the trustee and the company. Atwater J., after stating the question whether the applicant was a necessary defendant, said: "This action does not differ in substance from an ordinary creditor's bill to set aside a trust-deed for the benefit of creditors, or of cestuis que trustent sustaining other relations to the trustees. It is a general rule in equity that all persons materially interested either legally or beneficially in the subject-matter of the suit, are to be made parties to it either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree which shall bind them all.

But to this rule there are numerous exceptions. And it is held that the expression, all persons interested' must be parties to the suit, does not extend to all persons who may be consequentially interested; " citing Story's Eq. Pl., §§ 142, 149, 216. . . . “And the principle seems to be well settled that, in an action by a creditor to reach trust property in the hands of administrators or trustees who have control of, and whose duty it is to protect the property, the cestuis que trustent need not be joined as parties. The defence of the trustee is their defence, and their presence is not necessary to the protection of their interests."