Words in a will, directing land to be conveyed to or divided
among remaindermen at the expiration of a particular estate, are to
be presumed, unless clearly controlled by other provisions, to
relate to the beginning of enjoyment by remaindermen, and not to
the vesting of the title in them.
A testator devised lands and personal property to his executors
and their successors and their heirs, in trust, and directed that
the income, until his youngest grandchild who might live to be
twenty-one years of age should arrive at that age, should be
divided equally among the testator's children or the issue of any
child dying, and among the grandchildren also as they successively
came of age; that "after the decease of all my children, and when
and as soon as the youngest grandchild shall arrive at the age of
twenty-one years," the lands should be "inherited and equally
divided between my grandchildren
per capita," in fee, and
that "in like manner" the personal property should "at the same
time be equally divided among my said grandchildren, share and
share alike
per capita," and that if any grandchild should
have died before the final division leaving children, they
Page 113 U. S. 341
should take and receive
per stirpes the share which
their parent would have been entitled to have and receive if then
living, and provided that any assignment, mortgage, or pledge by
any grandchild of his share should be void, and the executors, in
the final division and distribution, should convey and pay to the
persons entitled under the will.
Held that the executors
took the legal title in fee, to hold until the final division, and
that the trusts were imposed upon them as executors.
Held,
also that all the grandchildren took equitable vested
remainders, opening to let in those born after the testator's
death, and subject to be divested only as to any grandchild who
died before the expiration of the particular estate, leaving issue,
by an executory devise over to such issue.
Under the statute of Ohio of December 17, 1811, providing that
no estate in lands
"shall be given or granted by deed or will to any person or
persons, but such as are in being, or to the immediate issue or
descendants of such as are in being at the time of making such deed
or will,"
a devise of a vested remainder to grandchildren of the testator,
with an executory devise over of the share of any grandchild, who
shall have died, leaving children, before the coming of age of the
youngest grandchild, to the children of such deceased grandchild,
is valid, so far at least as concerns the grandchildren, though
born after the testator's death.
All persons interested in a suit in equity, and whose rights
will be directly affected by the decree, must be made parties to
the suit, unless they are too numerous, or some of them are out of
the jurisdiction, or not in being and in every case there must be
such parties before the court as to insure a fair trial of the
issue in behalf of all.
A trustee having large powers over the trust estate, and
important duties to perform with respect to it, is a necessary
party to a suit by a stranger to defeat the trust.
A court of probate has inherent power, without specific statute
authority, to grant administration limited to the defense of a
particular suit.
A citizen of Ohio devised lands in that state to his three
executors in fee, in trust to pay the income to his children and
grandchildren until the youngest grandchild who should live to be
twenty-one years of age should arrive at that age, and then to
convey the remainder to his grandchildren in equal shares, and
provided that if any executor should die, resign, or refuse to act,
a new executor, to act with the others, should be appointed by the
court of probate. The will was admitted to probate, upon the
testimony of the attesting witnesses, under the statute of Ohio of
February 18, 1831, and three executors were appointed and acted as
such. Two of them afterwards resigned and their resignations were
accepted by the court of probate. A. bill in equity to set aside
the will and annul the probate was then filed, under that statute,
by one of the children against the other children and all the
grandchildren then in being, alleging that they were the only
persons specified or interested in the will, and were the only
heirs and personal representatives of the deceased; those
grandchildren being infants, one of the children was appointed
guardian
ad litem of each; the third executor, who was one
of the children made defendants in their own right,
Page 113 U. S. 342
and who was not made a party as executor or trustee, and did not
answer as such, resigned, and the resignation was accepted by the
court of probate, pending that suit, and no other executor,
trustee, or administrator with the will annexed was made a party;
it was found by a jury that the instrument admitted to probate was
not the testator's will, and a decree was entered setting aside the
will and annulling the probate. Partition was afterwards decreed
among the heirs, and they conveyed portions of the lands set off to
them to purchasers for value and without actual notice of any
adverse title.
Held that the decree annulling the probate
was absolutely void as against grandchildren afterwards born, and
that they were entitled to recover their shares under the will
against the heirs and purchasers, and might, if the parties were
citizens of different states, bring their suit in the Circuit Court
of the United States.
Holt v. Lamb, 17 Ohio St. 374, followed.
This is a bill in equity by the children of Allen C. McArthur, a
son of Gen. Duncan McArthur, to enforce a trust and establish a
title in fee in lands in Ohio under the will of their grandfather.
The case was heard in the circuit court on the bill and answers, by
which it appeared to be as follows:
Duncan McArthur, of the County of Ross and State of Ohio died on
May 12, 1839, leaving an instrument in writing, dated October 30,
1833, purporting to be duly executed and attested as his last will,
by which he empowered and directed his executors to sell and convey
all his lands not described, devised his home farm to his wife for
life, and other lands not now in question to Samson Mason and
Samuel F. Vinton, in trust for the benefit of his five surviving
children and their heirs, made various bequests, and further
provided as follows:
"[15.] Item. It is my will and direction that my lands and lots
not otherwise herein disposed of, lying and being in the counties
of Ross and Pickaway, shall not be sold; but the said lands and
lots, together with the lands herein devised to my said wife, after
her death, shall be by my executors leased or rented out to the
best advantage, for improvements to be made thereon, or for money
rents, until the youngest or last grandchild which I now have, or
may hereafter have, the lawfully begotten child of either of my
said sons Allen C. or James McD., or of my daughters Effie, Eliza
Ann, or Mary, who may live to be twenty-one years of age, shall
arrive at that age. "
Page 113 U. S. 343
"[16.] Item. And it is my further will and direction that, after
the several sums of money hereinbefore devised shall have been in
all cases first paid and deducted therefrom, as the same shall from
time to time become due and payable, the overplus or residue of the
rents and profits of the lands so to be rented or let, and of the
lots not otherwise disposed of in the counties of Ross and
Pickaway, and of the dividends arising from the stock owned by me
at the time of my death, and of such stocks as shall be purchased
by my said executrix and executors, shall be annually divided
equally among my children and grandchildren who may be the age of
twenty-one years when such divisions shall be made, which division
shall not be made until the power of my executors to lease said
lands shall terminate,
viz., until the aforesaid youngest
grandchild above designated and described shall arrive at the age
of twenty-one years. And said annual division of rents and profits
and dividends of stock aforesaid shall be made among and between
said Allen C., James McD., Effie, Eliza Ann, and Mary, and their
children, share and share alike,
per capita, the said
children to come in for a share in the annual division when they
shall respectively attain the age of twenty-one years, and not
before, and in case of the death of either of my said last-named
sons or daughters, leaving a lawful child or children under age,
the child or children of such deceased parent shall take per
stirpes, for their education and maintenance, the dividends in such
division which such deceased parent would, if living, have been
entitled to receive. And when such child or children of such
deceased parent shall respectively come of the age of twenty-one
years, he, she, or they shall no longer take
per stirpes,
but shall then and from thenceforth take in said annual division
his, her, or their share
per capita, but the coming of one
of such children of any such deceased parent to the age of
twenty-one years shall not bar or preclude those children of such
parent who may be still in their minority, from continuing to take
the full share, per stirpes, of such deceased parent. And in said
annual division the children of my daughter Margaret Campbell
Kercheval, deceased, or the legal issue of such said children as
may be
Page 113 U. S. 344
deceased, shall annually, for the period of ten years after my
death, take and receive,
per stirpes, one share as the
representatives of their deceased mother, to be equally divided
among them, and at the expiration of ten years after my death the
said children of my said daughter Margaret Campbell shall not
thenceforth take or be entitled to any part of said division; but
the said division shall thenceforth be made among my said children,
Allen C., James McD., Effie, Eliza Ann, Mary, and their children,
exclusively, in the manner hereinbefore directed, intending hereby
to exclude altogether from said division the children of my
deceased daughter Helen Mar."
"[17.] Item. It is my further will and direction that after the
decease of all my children now living, and when and as soon as the
youngest or last grandchild, in the next preceding clause but one
of this will designated and described, shall arrive at the age of
twenty-one years, all my lands and lots not otherwise disposed of
in said counties of Ross and Pickaway, and all my other lands, if
any shall remain unsold at that time, shall be inherited and
equally divided between my grandchildren
per capita, the
lawful issue of my said sons and daughters, Allen C., James McD.,
Effie, Eliza Ann, and Mary, for them and their heirs forever, to
have and to hold, or to sell and dispose of the same at their will
and pleasure, and in like manner all the stocks belonging to my
said estate, whether invested before or after my death, shall at
the same time be equally divided among my said grandchildren, share
and share alike,
per capita, but it is to be understood to
be my will and direction that if any grandchild aforesaid shall
have died before said final division is made, leaving a child or
children lawfully begotten, such child or children shall take and
receive
per stirpes (to be equally divided between them)
the share of my said estate, both real and personal, which the
parent of such deceased child or children would have been entitled
to have and receive if living at the time of such final
distribution. In making this last and final division and
distribution of my lands and stocks, I have excluded the children
of my deceased daughters Helen Mar, late wife of Alexander Bourne,
and Margaret Campbell, late
Page 113 U. S. 345
wife of Robert Kercheval, deceased, their parents having, in my
opinion, received their full share and portion of my estate."
"[18.] Item. And it is further my will that my said children or
grandchildren, or any of them, by their own act or in conjunction
with the husband of any of them, shall not have power or authority
to assign, transfer, pledge, mortgage, or encumber in any way his
or her or their share of the annual dividends or profits of my said
estate herein above devised; but every such assignment, transfer,
pledge, mortgage, or encumbrance, by any instrument or devise
whatsoever, shall be wholly null and void, and the proper receipt
of such child or grandchild, or his, her, or their lawful
authorized guardian, shall alone be a discharge to my said
executors, and in like manner every conveyance, assignment,
transfer, pledge, mortgage, or encumbrance, by any instrument or
device whatsoever, made by anyone of my said grandchildren or their
legal representatives, by any act or deed of him or her or them, or
in conjunction with the husband of any of them, whereby his, her,
or their share of said lands and stocks in the final distribution
thereof shall be in any way affected or disposed of, shall be
wholly null and void. And in such final distribution of my lands,
it is my direction that deeds of partition thereof shall be made to
and in the names of those who may be thus entitled thereto, and in
the name and for the use of no other person whatsoever, which deeds
of partition shall be executed by my executors for the time being,
and to enable my executors the more effectually to execute the
powers and duties by this will devolved upon them, and to protect
my said children and grandchildren against fraud and imposition, I
hereby devise to my said executrix and executors, and the
successors of them, all of said lands so directed to be leased and
finally divided as above, and to their heirs, in trust for the uses
and purposes and objects expressed in this my will, and the
performance of which is herein above directed and prescribed, to
have and to hold the title thereof till such final division or
partition thereof, and no longer. And it is my further direction
that in the final division of the stocks aforesaid the executors in
whose name the same may then be vested in trust shall assign and
transfer to such grandchild, or his or her legal representatives,
the share or portion of such stock belonging and coming to such
grandchild or
Page 113 U. S. 346
his or her legal representatives, so that the same shall be
vested in the name of such grandchild or legal representatives, and
the proper receipts of such grandchild or legal representatives, or
of his or her or their duly authorized guardian, shall alone
discharge the executor or executors in whom the stocks aforesaid
shall or may then be vested."
"[23.] Item. It is my direction that my executors shall give
bond and security for faithful administration, as in other
cases."
"[24.] Item. And finally, for the purpose of carrying all and
singular the provisions of this my last will and testament into
effect, I do hereby nominate and appoint my wife, Nancy McArthur,
executrix, and my friends, Presley Morris and William Key Bond,
Esquires, of Ross county, my executors, and in case anyone or more
of the above-named executors shall die, resign, or refuse to act
and qualify according to law, it is my will and request that the
court of common pleas for said County of Ross, for the time being,
or such other court as may hereafter be constituted and authorized
to do testamentary business, shall nominate and appoint a suitable
person or persons, who will qualify and act, to supply the place or
places of the person or persons by me herein named and appointed as
my executors, and who may not qualify and act as such, or who may,
after accepting and qualifying, die, refuse, or neglect to act, and
such person or persons so to be nominated and appointed by said
court shall not be administrators
de bonis non with the
will annexed, but the nomination by the court shall be in execution
of this will, as though the same individual had been nominated by
this my will to fill a vacancy, or as though a power of nomination
had been vested in some person or individual herein named, and such
person so nominated shall act and be executor, with my other
executors, for the time being, it being my intention that the
duties herein required shall always be performed by at least three
executors, that being the number by me herein named and
appointed."
A transcript of a record of the Court of Common Pleas
Page 113 U. S. 347
of the County of Ross and State of Ohio (referred to in the bill
and annexed to it) showed the following proceedings:
On May 6, 1839, the alleged will of Duncan McArthur was produced
to the court, and proved by the oaths of the attesting witnesses,
and ordered to be recorded. On the next day the court granted
letters testamentary to Morris and Bond, the surviving executors
named in the will, and to Effie McArthur Coons, an additional
executrix then appointed by the court, pursuant to the will, in the
place of the testator's wife, who died before him, and the three
executors so appointed were qualified and gave bond with sureties,
as required by law. On June 21, 1839, Bond tendered his resignation
of the office of executor, and it was accepted by an order which
recited that the court was of opinion that good cause had been
shown for such resignation. On June 25, 1839, Morris likewise
resigned, and his resignation was accepted by a similar order. On
October 22, 1839,
"Effie McA. Coons having this day tendered her resignation to
the court of her office of one of the executors of the last will of
the late Duncan McArthur, deceased, late of Ross County, it is
ordered by the court that the said resignation be, and the same is
hereby, accepted, and the said resignation ordered to be
recorded."
On December 4, 1839, letters of administration on the estate of
Duncan McArthur were granted to William McDonald, and he was
qualified and gave bond accordingly.
A transcript of a record of the same court, sitting in chancery
(set forth and referred to in the answers), showed the following
proceedings:
On July 8, 1839, Allen C. McArthur, the eldest son of the
testator, filed a bill before the judges of the court, sitting in
chancery, setting forth the death of Duncan McArthur, the probate
of the instrument aforesaid as his will by the oaths of the
witnesses, the appointment in that instrument of his wife and
Morris and Bond to be executors, the death of the wife before the
testator, and the nomination and appointment by the court of Mrs.
Coons to act as executrix in her place, and alleging that Morris,
Bond, and Mrs. Coons took upon themselves the executorship of the
will; that Bond and Morris, at
Page 113 U. S. 348
the then present term of the court, had severally resigned, and
their resignations had been accepted, and
"that by the provisions of the said instrument in writing all
acts to be done by the executors require the concurrence of three
executors, and that no suitable persons can be found whom the court
are willing to appoint executors of the said will, and who are able
to give the bonds required by the said instrument or the law of the
land."
That bill
"further insists and states that the said instrument is void and
of none effect, because it is wholly impracticable, and cannot be
carried into effect; because many of its provisions are
impracticable, and cannot be carried into effect; because it tends
to establish perpetuities, and does establish such perpetuities,
which are contrary to the genius of our institutions, and the
spirit of our people and their laws, and indeed contrary to the
common law,"
and "that the said instrument in writing is void, because its
provisions, or many of them, are in violation of and contrary to
the common and statute law," and also alleged that Duncan McArthur
at the time of executing it, was of insane memory, and not
possessed of a testamentary capacity, and that it was never legally
executed as, and was not, his last will and testament.
That bill further alleged that "the only persons who have an
interest in the said instrument in writing" were the complainant;
Duncan McArthur's other four children, James McD. McArthur, Effie
McA. Coons, Eliza Ann Anderson, and Mary Trimble, and the husbands
of Mrs. Anderson and Mrs. Trimble, three minor children of James
McD. McArthur, a minor son of Mrs. Coons, and a minor son of Mrs.
Anderson; a minor son and an adult daughter (with her husband) of
Margaret C. Kercheval, a deceased daughter of Duncan McArthur;
Alexander Bourne, husband of Helen M. Bourne, another deceased
daughter of Duncan McArthur; one adult and two minor sons of Mrs.
Bourne, and Samson Mason and Samuel F. Vinton, as devisees in trust
of lands not now in question.
That bill further alleged
"that the aforesaid persons are the only heirs and personal
representatives of the said Duncan McArthur, and that they are also
the only persons specified in
Page 113 U. S. 349
the said instrument in writing, claimed as the will of said
Duncan McArthur,"
and made them defendants, and prayed that an issue might be
directed to be made up whether that instrument was the last will of
Duncan McArthur or not, and that it might be set aside as void, and
for further relief.
On July 10, 1839, the complainant in that cause had leave to
amend his bill, and the cause was continued. On October 7, 1839, he
filed a supplemental bill, alleging that a daughter had been born
to Mrs. Trimble, and was a granddaughter of Duncan McArthur, and as
such entitled to a provision under, and interest in, the supposed
will, and praying that she might be made a defendant. Among the
defendants named in the bill and supplemental bill in that cause
were all the children and grandchildren of Duncan McArthur who were
in existence at any time during the pendency of that suit, and due
service of process was made on all of them. Mason and Vinton,
trustees, were served with process, and severally filed answers,
declining to accept the trust conferred upon them by the will, and
disclaiming all interest in the lands devised to them.
On October 22, 1839, the following proceedings were had in that
cause: the court appointed James McD. McArthur guardian
ad
litem of his three minor children; Mrs. Coons guardian
ad
litem of her minor son; Mrs. Trimble's husband guardian
ad
litem of their minor daughter; Mrs. Anderson's husband
guardian
ad litem of their minor son, and of Mrs. Bourne's
two minor sons, and Mrs. Kercheval's son-in-law guardian
ad
litem of her minor son, and an acceptance of each appointment
was filed.
On the same day, answers to that bill were filed in behalf of
all the defendants. The answers of the four children of the
testator, James McD. McArthur, Mrs. Coons, Mrs. Anderson, and Mrs.
Trimble, and the husbands of the last two, as well as the answers
of Mrs. Kercheval's daughter and son-in-law, and of Alexander
Bourne and his adult son, severally stated that they admitted and
confessed all the allegations of the bill. The answer of Mrs. Coons
further stated that
"since the filing of the same, she has, to-wit at the present
term of October, resigned
Page 113 U. S. 350
the office and charge of executrix of the said supposed last
will and testament of her deceased father, the late Gen. Duncan
McArthur, from a conviction of her inability to discharge the
duties incumbent on her as such executrix, and the impossibility of
procuring suitable associates agreeably to the provisions of the
said instrument in writing."
The several answers of the infant defendants by their guardians
ad litem stated that they would neither admit nor deny the
allegations of the bill, but left the complainant to prove
them.
On the same day the court ordered
"that an issue at law be made up between the parties to try the
validity of said will and to ascertain by the verdict of a jury
whether said writing is the valid last will and testament of the
said Duncan McArthur or not,"
and that in making up that issue, the defendants file a
declaration affirming it to be his will, and the complainant plead
thereto that it is not his will.
On October 27th, the defendants filed a declaration and the
complainant a plea accordingly. On October 28th, a jury was
impaneled and sworn and returned a verdict that the instrument "is
not the valid last will and testament of the said Duncan McArthur,
deceased," and on the same day the court entered this decree:
"The jury to whom was committed for trial the issue made in
pursuance of the order of the court, between the respondents and
the complainant, whether the instrument filed and exhibited in this
cause, and purporting to be the last will and testament of the late
Duncan McArthur, of Ross County, deceased, was or was not the valid
last will and testament of the said Duncan McArthur, deceased,
having returned their verdict that the said instrument in writing
is not the valid last will and testament of the said Duncan
McArthur, deceased, and the court, having heard the arguments of
counsel and being fully advised in the premises, are of opinion
that the law and equity of the case are with the complainant, and
do order, adjudge, and decree that the said instrument in writing,
filed and exhibited by the complainant, purporting to be the last
will and testament of the said Duncan McArthur, deceased, and
admitted to probate as such last will and testament in the Court of
Common Pleas of
Page 113 U. S. 351
this county, be annulled, set aside, and held for naught, and
the infant defendants shall respectively have until they severally
attain the full age of twenty-one years and six months thereafter,
and the
femes covert defendants shall respectively have
until they are discovert and six months thereafter, to show cause
against this decree. And it is further ordered by the court that
the defendants pay the costs herein expended, taxed at forty
dollars and twenty-five cents. The complainant's costs are taxed at
thirty-three dollars and fifty-five cents. The defendants' costs
are taxed at six dollars and seventy cents."
William McDonald, appointed on December 4, 1839, administrator
of the estate of Duncan McArthur, as stated in the record annexed
to the present bill and above set forth, afterwards administered
the entire personal estate of the deceased, and his final account
was settled by the court on August 2, 1865.
Upon a petition for partition of all the real estate of which
Duncan McArthur died seized, filed on April 2, 1840, by his
daughter Mrs. Anderson and her husband, against Duncan McArthur's
other four children, Allen C. McArthur, James McD. McArthur, Mrs.
Coons, and Mrs. Trimble and her husband, and against the two
children of his deceased daughter, Mrs. Kercheval, the Court of
Common pleas for Ross County, on April 17, 1841, made partition
among them, one-sixth part each to said Allen C. McArthur, Mrs.
Coons, Mrs. Anderson, and Mrs. Trimble, one-sixth to the heirs of
James McD. McArthur (who had died pending that suit), and
one-twelfth to each of the two children of Mrs. Kercheval.
Upon the rendition of the decree in partition, the parties
thereto entered into possession of their shares, and afterwards
made sales of portions thereof to purchasers for valuable
consideration, and without actual notice of any adverse title or
claim, and they, and other persons claiming under or through them,
respectively occupied and improved the same for the period of
thirty-four years and eleven months, and until the filing of the
present bill, and during all that time their use and possession was
distinct, continued, exclusive, actual and notorious, under a claim
of title in fee simple, and adverse to the claims of all other
persons.
Page 113 U. S. 352
After the decree setting aside the will, and before the filing
of this bill, one of James McD. McArthur's children died under nine
years of age, and another child was born to him; the son of Mrs.
Coons died, unmarried and intestate, and she married William Allen
and had a daughter by him; Mrs. Anderson had five more children
born, of whom two died under eleven years of age; Mrs. Trimble's
daughter married one Madeira, and died, leaving three children, and
Allen C. McArthur, Duncan McArthur's eldest son, had five children
born to him, four daughters and a son.
This son, also named Allen C. McArthur, was the youngest
grandchild of Duncan McArthur who arrived at twenty-one years of
age. He arrived at that age on March 4, 1875, after the death of
all the children of Duncan McArthur, and he, together with his four
sisters and their husbands, all being citizens of Illinois or of
Kentucky, are the plaintiffs in the present bill, which was filed
on March 17, 1876. An authentic copy of the will of Duncan
McArthur, and of the original probate thereof, was recorded by the
probate court in Pickaway County, on February 11, 1876.
The defendants in this bill were all citizens of Ohio and were
the three surviving children of James McD. McArthur, the surviving
daughter of Mrs. Effie McA. Allen the four surviving children of
Mrs. Anderson, the three children of Mrs. Madeira, and numerous
purchasers of different parcels of land from the parties to the
proceeding for partition.
The present bill (without mentioning the proceeding to annul the
probate, set forth in the answers) alleged that, immediately after
the death of Duncan McArthur, his five children, desiring to obtain
for themselves the whole of his real and personal estate, and to
deprive his grandchildren of all the provisions intended for them
by his will, unlawfully combined and Confederated with other
persons, and, contriving to defraud the plaintiffs, procured and
brought about the tender and acceptance of the resignations of the
executors, and appropriated to their own use all his personal
property, and, by means of the proceeding in partition above
mentioned, divided all his lands among themselves, and conveyed
parts of the same to
Page 113 U. S. 353
other persons, and, in defense of their fraudulent conspiracy
and doings, pretended that he died intestate, and they as his
children had inherited his lands. These allegations were denied in
the answers.
Page 113 U. S. 375
MR. JUSTICE GRAY delivered the opinion of the Court.
This case presents three principal questions:
First. Whether the equitable estate in fee, which Duncan
McArthur, by his will, undertook to devise to his grandchildren,
children of his five surviving children, was vested or
contingent.
Second. Whether the devise of that estate, so far as it is to
the present plaintiffs, was void for remoteness.
Third. Whether the decree in 1839, setting aside his will, and
annulling the probate, is a bar to this suit.
I. The principal provisions of the will of Duncan McArthur,
material to the decision of this case, are as follows:
By the fifteenth clause, he directs that his lands in the
counties of Ross and Pickaway shall be leased or rented by his
executors "until the youngest or last grandchild which I now have,
or may hereafter have," the child of either of his five surviving
children, Allen C., James McD., Effie, Eliza Ann, or Mary, "who may
live to be twenty-one years of age, shall arrive at that age." By
the sixteenth clause, he directs that, until that time, the income
of these lands, and the dividends of all stocks held by him, or
purchased by his executors, shall be by them annually divided
equally among the five children aforesaid, or the issue of any
child dying, and among the grandchildren also as they successively
come of age.
The seventeenth clause provides as follows:
"It is my further will and direction that after the decease of
all my children now
Page 113 U. S. 376
living, and when and as soon as the youngest or last grandchild,
in the next preceding clause but one of this will designated and
described, shall arrive at the age of twenty-one years all my lands
[in question] shall be inherited and equally divided between my
grandchildren
per capita, the lawful issue of my said sons
and daughters, Allen C., James McD., Effie, Eliza Ann, and Mary,
for them and their heirs forever, to have and to hold, or to sell
and dispose of the same at their will and pleasure, and in like
manner all the stocks belonging to my said estate, whether invested
before or after my death, shall at the same time be equally divided
among my said grandchildren, share and share alike,
per
capita, but it is to be understood to be my will and direction
that if any grandchild aforesaid shall have died before said final
division is made, leaving a child or children lawfully begotten,
such child or children shall take and receive
per stirpes
(to be equally divided between them) the share of my said estate,
both real and personal, which the parent of such deceased child or
children would have been entitled to have and receive if living at
the time of such final distribution."
The word "deceased," near the end of this passage, was evidently
intended to be prefixed to the word "parent," instead of to the
words "child or children," so as to read "deceased parent of such
child or children."
By the eighteenth clause, he directs that "in such final
distribution of my lands" the executors for the time being shall
make deeds of partition "to and in the names of those who may be
thus entitled thereto," and,
"to enable my executors the more effectually to execute the
powers and duties by this will devolved upon them, and to protect
my said children and grandchildren against fraud and
imposition,"
he devises the lands to his executors and their successors,
"and to their heirs, in trust for the uses and purposes and
objects expressed in this my will, and the performance of which is
herein above directed and prescribed, to have and to hold the title
thereof till such final division or partition thereof, and no
longer."
By the twenty-fourth clause, he appoints three executors, and
directs and requests that if either of them shall die, resign, or
refuse to act, the court having probate jurisdiction for the County
of
Page 113 U. S. 377
Ross shall appoint a new one instead to act as an executor with
the others, so that there shall always be three executors.
The devise in the eighteenth clause of the title in the lands to
the executors and their successors, and their heirs, in trust for
the uses and purposes expressed in the will, to have and to hold
until the final division or partition, clearly gave them an estate
in fee, to last until that time.
Doe v. Edlin, 4 Ad. &
El. 582;
Maden v. Taylor, 45 Law Journal (N.S.), c. 569.
And there can be no doubt that, as contended by the learned counsel
for the defendants, the powers conferred and the trusts imposed
upon the executors were annexed to their office of executors, and
did not make them trustees in another and different capacity.
Colt v. Colt, 111 U. S. 566,
111 U. S. 581;
Treadwell v. Cordis, 5 Gray 341, 358;
Gandolfo v.
Walker, 15 Ohio St. 251.
The equitable estate created by the gift in the sixteenth clause
of the income to the children and grandchildren, being an estate
which must endure for the lives of the children, and might endure
throughout the lives of the grandchildren, though subject to be
sooner determined in the contingency of the coming of age of the
youngest grandchild, was technically an estate for life. 2 Bl.Com.
121.
The nature of the equitable estate in remainder created by the
seventeenth clause demands more consideration.
The counsel for some of the defendants contended that it was
contingent upon the arrival of the youngest grandchild at 21 years
of age. In that view, the whole estate in remainder, being
dependent upon the termination of the particular estate for life,
and vesting at that time and not before, would be in legal effect
an equitable contingent remainder to the grandchildren then living,
and the issue then living of grandchildren theretofore deceased, as
one class.
In behalf of other defendants it was contended that the
remainder in fee expectant upon the estate for life vested
immediately in the grandchildren living at the death of the
testator, opened to let in afterborn grandchildren, and vested in
them successively at birth, and would be divested at to the shares
of those grandchildren only who should die, leaving children,
before the determination of the life estate, by force of the
direction
Page 113 U. S. 378
that such children should take those shares. In this view, all
the grandchildren took a vested remainder in fee, and the gift over
to the children of any deceased grandchild, inasmuch as it did not
depend upon any precedent particular estate, but was by way of
substitution for the devise in fee to that grandchild, was an
executory devise.
For many reasons, not the least of which are that testators
usually have in mind the actual enjoyment, rather than the
technical ownership of their property, and that sound policy as
well as practical convenience require that titles should be vested
at the earliest period, it has long been a settled rule of
construction in the courts of England and America that estates,
legal or equitable, given by will, should always be regarded as
vesting immediately, unless the testator has by very clear words
manifested an intention that they should be contingent upon a
future event.
In the will before us the testator directs the income to be
divided annually, in specified and changing proportions, among his
five children living at his death, and their children, until the
youngest grandchild comes of age. He gives no part of the income to
children of grandchildren. He gives the fee, when the youngest
grandchild comes of age, to the grandchildren and the children of
deceased grandchildren. His general intent clearly is to give the
income of the estate to the children and grandchildren so long as
any grandchild is under age, and the principal to the issue of the
five children, whether such issue are his grandchildren or his
great grandchildren.
If all the children and grandchildren should die before any
grandchild should come of age, the distribution of the income would
necessarily cease. In that event, if any of the grandchildren dying
under age should leave children, the effect of holding the
remainder to be contingent upon the coming of age of the youngest
grandchild would, as that contingency had never happened, cut off
the great grandchildren from any share in the estate, in direct
contravention of the general intent of the testator. The more
reasonable inference is that, upon the determination of the life
estate by the death of all the children and grandchildren, for
whose benefit it was created, the great-grandchildren
Page 113 U. S. 379
would be immediately entitled to the remainder.
Castle v.
Eate, 7 Beavan 296;
Manfield v. Dugard, Gilb.Eq. 36;
S.C. 1 Eq.Cas.Abr. 195, pl. 4. Upon that construction, the
contingency contemplated must necessarily happen at some time,
either by the arrival of the youngest grandchild at twenty-one
years of age, or by the death of all the grandchildren under age,
and the case would come within the settled rule that
"where a remainder is so limited as to take effect in
possession, if ever, immediately upon the determination of a
particular estate, which estate is to determine by an event which
must unavoidably happen by the efflux of time, the remainder vests
in interest as soon as the remainderman is in esse and ascertained,
provided nothing but his own death before the determination of the
particular estate will prevent such remainder from vesting in
possession."
Doe v.
Considine, 6 Wall. 458,
73 U.
S. Moore v. Lyons, 25 Wend. 119, 144;
Blanchard v. Blanchard, 1 Allen 223, 227.
The terms in which the testator has expressed his intention
likewise point to a vesting of the remainder in all his
grandchildren.
The only gift of real estate in remainder to grandchildren is
contained in the opening words of the eighteenth clause, by which
the testator directs that "after the decease of all my children now
living, and when and as soon as the youngest grandchild shall
arrive at the age of twenty-one years," the lands "shall be
inherited and equally divided between my grandchildren
per
capita, the lawful issue of my said sons and daughters," in
fee.
This gift is not to such grandchildren only as shall be living
at the expiration of the particular estate; but it is to "my
grandchildren
per capita the lawful issue of my said sons
and daughters," words of description appropriate to designate all
such grandchildren.
At the expiration of the particular estate, the lands are to be
"inherited and equally divided" among the grandchildren, and "in
like manner" the stocks are to be "equally divided" among them. The
real estate and the personal property are clearly to go to the same
persons and at the same time.
Page 113 U. S. 380
The word "inherited," which is applied to the real estate only,
implies taking immediately from the testator upon his death, as
heirs take immediately from their ancestor upon his death. Devises
or bequests in remainder, by the use of similar words, though
preceded, as in this case, by the word "then," have been often held
to be vested from the death of the testator.
Bullock v.
Downes, 9 H.L.Cas. 1;
Mortimore v. Mortimore, 4
App.Cas. 448;
Parker v. Converse, 5 Gray 336;
Dove v.
Torr, 128 Mass. 38. The case of
Thorndike v. Loring,
15 Gray 391, cited for the defendants, is clearly distinguished by
the fact that there the bequest of the principal at the expiration
of fifty years, was confined to "those who would then be my lawful
heirs and entitled to my estate, if I had then died intestate."
The words "and equally divided
per capita," while they
qualify the effect of the word "inherited" so far as to prevent a
taking by the grandchildren
per stirpes as under the
statute of descents, also plainly indicate a vested remainder.
Words directing land to be conveyed to or divided among
remaindermen after the termination of a particular estate are
always presumed, unless clearly controlled by other provisions of
the will, to relate to the beginning of enjoyment by the
remaindermen, and not to the vesting of the title in them. For
instance, under a devise of an estate, legal or equitable, to the
testator's children for life, and to be divided upon or after their
death among his grandchildren in fee, the grandchildren living at
the death of the testator take a vested remainder at once, subject
to open and let in afterborn grandchildren; although the number of
grandchildren who will take, and consequently the proportional hare
of each, cannot, of course, be ascertained until the determination
of the particular estate by the death of their parents.
Doe v.
Considine, 6 Wall. 458;
Cropley v.
Cooper, 19 Wall. 167;
Dingley v. Dingley,
5 Mass. 535;
Doe v. Provoost, 4 Johns. 61;
Linton v.
Laycock, 33 Ohio St. 128;
Doe v. Perryn, 3 T.R. 484;
Randoll v. Doe, 5 Dow 202. So a direction that personal
property shall be divided at the expiration of an estate for life
creates a vested interest.
Shattuck v. Stedman, 2 Pick.
468;
Hallifax v. Wilson, 16 Ves. 168;
In
Page 113 U. S. 381
re Bennett's Trust, 3 Kay & J. 280;
Strother v.
Dutton, 1 DeG. & J. 675.
The remainder, being vested according to the legal meaning of
the words of gift, is not to be held contingent by virtue of
subsequent provisions of the will, unless those provisions
necessarily require it. The subsequent provisions of this will had
other objects.
The direction that if any grandchild shall have died before the
final division, leaving children, they shall take and receive
per stirpes the share of the estate, both real and
personal, which their parents would have been entitled to have and
receive if then living, was evidently intended merely to provide
for children of a deceased grandchild, and not to define the
nature, as vested or contingent, of the previous general gift to
the grandchildren, and its only effect upon that gift is to divest
the share of any grandchild deceased leaving issue, and to vest
that share in such issue.
Smithers v. Willock, 9 Ves. 233;
Goodier v. Johnson, 18 Ch.D. 441;
Darling v.
Blanchard, 109 Mass. 176; 1 Jarman on Wills (4th ed.) 870.
The addition, in the eighteenth clause of the will, of the
provisions that any assignment, mortgage, or pledge by any
grandchild of his share shall be void, and that the executors, in
the final partition and distribution, shall convey and pay to the
persons entitled under the will, rather tends to show that the
testator considered the estate to be vested, and to be in danger of
being alienated but for these provisions, and whatever their legal
effect may be, they cannot be construed as making a remainder
contingent, which the terms of the previous gift, and the general
intent of the testator, as appearing from the whole will, require
to be vested.
Hall v. Tufts, 18 Pick. 455.
For these reasons, we are of opinion that the will purports to
devise to all the grandchildren
per capita, children of
the five surviving children of the testator, a vested remainder in
fee, and to the children
per stirpes of any grandchildren
deceased before the arrival of the youngest grandchild at
twenty-one years of age, a similar estate in fee by way of
executory devise.
II. To come within the rule of the common law against
perpetuities,
Page 113 U. S. 382
the estate, legal or equitable, granted or devised, must be one
which, according to the terms of the grant or devise, is to vest
upon the happening of a contingency which may be possibility not
take place within a life or lives in being (treating a child in its
mother's womb as in being) and twenty-one years afterwards.
In the case at bar, as the youngest grandchild must be in being
in the lifetime of his parent, and that parent was born in the
testator's lifetime, the devise to the grandchildren, and even the
devise over, upon the arrival of the youngest grandchild at
twenty-one years of age, to the children of any grandchild deceased
before that time, must necessarily take effect, as to every
devisee, within a life or lives in being and twenty-one years
afterwards, and therefore do not violate the rule of the common
law, and it is unnecessary to consider whether that rule is in
force in Ohio.
The statute of Ohio of December 17, 1811, in force at the making
of this will, and at the testator's death, imposed different
restrictions upon grants and devises of real estate, by enacting
that
"no estate in fee simple, fee tail, or any lesser estate, in
lands or tenements equal shares, and provided that if any executor
given or granted by deed or will to any person or persons, but such
as are in being, or to the immediate issue or descendants of such
as are in being at the time of making such deed or will."
2 Chase's Statutes 762.
It was assumed at the argument, and can hardly be doubted, that
in this statute the words "the time of making such deed or will,"
which, as applied to a deed, designate the time both of its
execution and of its taking effect, denote, as applied to a will,
the time when it takes effect by the death of the testator, and not
the date of its formal execution. By the law of England, the
question of remoteness depends upon the state of facts at the time
of the testator's death, though differing from that existing at the
date of the will.
Williams v. Teale, 6 Hare 239, 251;
Cattlin v. Brown, 11 Hare 372, 382; Lewis, Perpetuities,
Supp. 53-60, 64; 1 Jarman on Wills 254.
Under the common law rule against perpetuities a devise to a
class some members of which may possibly not take within the
Page 113 U. S. 383
prescribed period, is wholly void.
Leake v. Robinson, 2
Meriv. 363;
Pearks v. Moseley, 5 App.Cas. 714. But that is
because, as observed by Sir William Grant, "it is the period of
vesting and not the description of the legatees, that produces the
incapacity," and the devise is not "to some individuals who are,
and to some who are not, capable of taking." 2 Meriv. 388, 390. The
rule of the common law, by which an estate devised must at all
events vest within a life or lives in being and twenty-one years
afterwards, has reference to time and not to persons. Even the
"life or lives in being" have no reference to the persons who are
to take, for the testator is allowed to select, as the measure of
time, the lives of any persons now in existence, and the
"twenty-one years afterwards" are not regulated by the birth or the
coming of age of any person, for they begin not with a birth, but
with a death, and are twenty-one years in gross, without regard to
the life or to the coming of age of any person soever.
Cadell
v. Palmer, 1 Cl. & Fin. 372;
S.C. 7 Bligh N.R.
202.
It is doubtful, to say the least, whether the like effect can be
attributed to the statute of Ohio which has no reference to time,
and only avoids devises to persons who are not either in being
themselves, or the immediate issue or immediate descendants of
persons in being at the time of the making of the will. The devise
of their parent's share to the children of any grandchild deceased
before the time of division would seem to be valid as to those
great grandchildren whose parent, a grandchild of the testator, was
living at the time of his death, because they would be "immediate
issue" of a person in being at that time, and valid also as to any
great grandchildren whose parent, though born after the testator's
death, had died before their grandparent, a child of the testator,
because they would be, if not "immediate issue," certainly
"immediate descendants," of that child who was in being at that
time, and invalid as to those great grandchildren only, whose
parent (as in the case of Mrs. Madeira, daughter of the testator's
child Mary Trimble), born since the testator's death, died after
their grandparent, and who therefore by reason of the interposition
of the life of their parent, were neither "immediate issue" nor
"immediate
Page 113 U. S. 384
descendants" of a person in being when the testator died.
See Stevenson v. Evans, 10 Ohio St. 307;
Turley v.
Turley, 11 Ohio St. 173.
But, however that may be, the conclusion, already announced,
that the estate in remainder devised by Duncan McArthur was vested
in all his grandchildren
per capita, with an executory
devise over of the shares of 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, 5 App.Cas. 719, 724-725;
Goodier
v. Johnson, 18 Ch.D. 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 twenty-one 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 twenty-one
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.
III. 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
Page 113 U. S. 385
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 named 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 Statutes 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 common 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 jurisdiction exercised by the court and jury is virtually
that of a court of probate.
Page 113 U. S. 386
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.
Swazey'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
pending, 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 prevent
Page 113 U. S. 387
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 admitted 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 anyone claiming under it,
for lands devised to them by the will as originally admitted 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
Page 113 U. S. 388
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 cause.
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
Page 113 U. S. 389
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 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. "
Page 113 U. S. 390
It is contended by the defendants in the present case that this
decision 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 anyone, 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.
368, 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
Page 113 U. S. 391
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, eighteen years ago, recognized by the same court
thirteen 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 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, 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
Page 113 U. S. 392
object of a suit, and whose rights will be directly affected by
the decree, must by 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 admitted 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, or 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
Page 113 U. S. 393
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, each a minor child of one of those
four children, as defendants. The bill alleged that these were the
only persons specified in the will or having an interest 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
Page 113 U. S. 394
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.
Page 113 U. S. 395
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. 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.
Davoue v. Fanning, 4 Johns.Ch. 199;
Dehart v. Dehart, 3 N.J.Eq. 471;
Hawkins v.
Hawkins, 1 Hare 543, 545, and note; Calvert on 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, Ambler 374;
Harvey v. Harvey, 4 Beavan 215 and 5 Beav 134. But it
would seem that the decree must be without prejudice to the lights
of those who are not made parties and who do not come in before the
decree.
Harvey v. Harvey, 5 Beavan 139;
Willats v.
Busby, 5 Beavan 193, 200;
Powell v. Wright, 7 Beavan
444, 450; Calvert on 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; Calvert on 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
Page 113 U. S. 396
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 afterborn 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. Calvert on Parties 273;
Kerrison v. Stewart, 93 U. S. 155,
93 U. S. 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,
93 U. S.
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
Page 113 U. S. 397
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 entrusted 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
Cas.temp.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 under 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 Wasburn on Real Property (4th ed.) 512,
513. And as holders of that title, they were necessary parties to
the suit.
Adams v. Paynter, 1 Collyer 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
Page 113 U. S. 398
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. Statutes of Ohio of March 12, 1831, § 22, and February 18,
1831, §§ 16, 25; 3 Chase's Statutes, 1779, 1787, 1788. The alleged
impossibility of finding proper persons to accept the office of
executors
Page 113 U. S. 399
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 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
actate 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 Phillips 545, 550-551; 1
Williams on Executors (7th ed.) 479, 502, 523-524;
Griffith v.
Frazier, 8 Cranch 9,
12 U. S. 26;
Martin v. Drydock Co., 92 N.Y. 70;
McNairy v.
Bell, 6 Yerger 302;
Jordan v. Polk, 1 Sneed 429,
434.
These defendants rely on ~
Andrews v. Andrews, 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
Page 113 U. S. 400
was therefore bound to take upon himself the burden of the
contest. 7 Ohio St. 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 Journal (Prob.) 33 and note;
Nichols v.
Binns, 1 Sw. & Tr. 239;
Mitchell v. Gard, 3 Sw.
& Tr. 275;
Davies v. Gregory, P. & D. 28;
Mumper's Appeal, 3 W. & S. 441;
Chapin v.
Miner, 112 Mass. 269. In
Andrews v. Andrews, 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 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 Curtis 479;
Faulkner v.
Davis, 18 Grattan 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
Page 113 U. S. 401
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; Calvert on 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 remaindermen 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 Hardwick, 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 Grattan 152, 168.
See also Goodchild v.
Terrett, 5 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 remaindermen, to bring
Page 113 U. S. 402
before the court the first tenant in tail (although an infant,
incapable at law of barring remaindermen), 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 Sch. & Lef. 386, 408; Calvert on
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 Jacob Y Walker 1, 133;
Mullins v.
Townsend, 5 Bligh 567, 591;
S.C. 2 Dow & Cl. 430,
438;
Ex Parte Dering, 12 Sim. 400; Calvert on 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. 5,
68
U. S. 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 construed 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,
Page 113 U. S. 403
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 Myl. & Cr. 97;
Whitworth v.
Whyddon, 2 Macn. & Gord. 52; States of Ohio of March 12,
1831, § 8; 3 Chase's Statutes 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 Phillips 149, 154;
Full v.
Lutwidge, Barnard.Ch. 319, 320;
Humphreys v.
Humphreys, 3 P.Wms. 349, 351;
Simons v. Milman, 2
Sim. 241;
Beardmore v. Gregory, 2 Hem. & Mil. 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. Mitford Pl. (4th ed.) 177,
178;
Tyler v. Bell, 1 Keen 826 and 2 Mylne & Cr. 89;
Groves v. Lane, 16 Jur. 1061;
Devaynes v.
Robinson, 24 Beavan 86, 98;
Cary v. Hills, L.R. 15
Eq. 79;
Rowsell v. Morris, L.R. 17 Eq. 20;
Dowdeswell
v. Dowdeswell, 9 Ch.D. 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
Page 113 U. S. 404
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 Sch. & Lef. 238, 241;
Fordham v. Rolfe, Tamlyn 1, 3, and note;
Waterton v.
Croft, 6 Sim. 431; Mitf.Pl. 173; Calvert on Parties 218-220; 1
Maddock 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
Page 113 U. S. 405
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 Sch.
& Lef. 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, 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.
Page 113 U. S. 406
MR. CHIEF JUSTICE WAITE (with whom MR. JUSTICE HARLAN
concurred), 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 twenty-one 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 remainder at once,
subject to open and let in afterborn 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
Page 113 U. S. 407
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.
MR. JUSTICE MATTHEWS, having been of counsel, did not sit in
this case, or take any part in the decision.
