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.

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*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

968.

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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

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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

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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 168. See, also, Goodchild v. Terrett, 5

Lessee v. Dejarnette, 13 Grat. 152,
Beav. 398.

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 conv.5s--43