Syllabus. dence offered by either party, and thereupon the court found the issues for the plaintiff." A judgment was entered for plaintiff, and a motion in writing for new trial was overruled, to which defendant excepted. 1. There is no special finding of facts; and the general finding of the issues for the plaintiff is not open to review by this court. Martinton v. Fairbanks, 112 U. S. 670. 2. The questions discussed by counsel for the defendant as to the legal authority of the town to issue the bonds referred to fairly arise upon the first count of the declaration. But their determination cannot affect the judgment, for the common counts are sufficient under the statutes of Illinois to support the judgment, without reference to any question of the legal authority to issue the bonds described in the first count. Rev. Stat. Ill. 1870, ch. 110, § 58; Bond v. Dustin, 112 U. S. 604. Judgment affirmed. MCARTHUR & Others v. SCOTT & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. Argued January 28, 29, 1884.-Reargued April 7, 8, 9, 1884-Decided March 2, 1885. 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 Syllabus. 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 grandchil dren, 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 defence 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, Statement of Facts. 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 General 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 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. Statement of Facts. [16.] "Item. And it is my further will and direction that, after the several sums of money herein before 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 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 Statement of Facts. be 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 herein before 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 Bourre, and Margaret Campbell, late |