Argument for Appellants. following cases show to what extent it has gone to uphold wills against that charge. Stevenson v. Evans, 10 Ohio St. 307; Gibson v. McNeely, 11 Ohio St. 131; Turley v. Turley, 11 Ohio St. 173; Brasher v. Marsh, 15 Ohio St. 103.-The act of 1811 is a restraining, not an enabling act. It does not supersede the common law. It modifies it, by cutting off altogether the period, within which, after lives in being, an estate must vest, except in favor of the immediate issue or descendants of persons in being at the making of the will; so that there may be no devise except to persons in being or to their immediate issue or descendants, leaving the common-law rule intact with respect to such issue or descendants. The statute does not contemplate the necessity of a precedent particular estate to the person to whose immediate issue or descendant the estate is subsequently limited. There need be no particular estate, or if there be one it may be granted to some one other than the one to whose immediate issue the ultimate estate is given, and still the grant is valid under the statute.-2. The provision for children of predeceased grandchildren, if illegal, does not affect the validity of the devise to complainants. It is settled that the words "immediate issue" in this statute mean children, and "immediate descendants" include all to whom, under the statute of descents, an inheritable estate would descend immediately. Turley v. Turley, 11 Ohio St. 173. The complainants are the immediate issue of persons in being at the making of the will, and are therefore within the terms of the statute, and the time for final distribution. is within twenty-one years after lives in being. If the complainants, being immediate issue of persons in being at the making of the will, are, under its terms, and necessarily within twenty-one years after lives in being, entitled each to an ascertainable aliquot part of the lands in suit, they may recover; and it is no answer that other portions of those lands are limited to others too remotely. Wilkinson v. Duncan, 30 Beav. 111; Griffith v. Pownall, 13 Sim. 393; Storrs v. Benbow, 3 DeG. M. & G. 390, and 2 Myl. & K. 46; Cattlin v. Brown, 11 Hare, 372; Goodier v. Johnson, 18 Ch. D. 441; Darling v. Rogers, 22 Wend. 483; Kane v. Gott, 24 Wend. 641; Savage Argument for Appellants. v. Burnham, 17 N. Y. 561, 576; Downing v. Marshall, 23 N. Y. 366; Adams v. Perry, 43 N. Y. 487; Purdy v. Hayt, 92 N. Y. 446; Lowry v. Muldrow, 8 Rich. Eq. 241. Counsel for appellees rely upon Leake v. Robinson, 2 Meriv. 363 and the cases which follow it. Those cases do not decide that a devise to two classes, or individuals, void as to one is, therefore, void as to the other; or that if the entire intention of the testator with respect to any subject matter may not be lawfully carried out, it must, therefore, fail altogether; or that if a gift includes in one description persons capable and persons incapable, by reason of remoteness, it is, therefore, invalid as to all; on the contrary, they recognize, and some of them expressly decide, the very opposite doctrine. The common-law rule is completely expressed in the simple statement that a devise, to be valid, must necessarily vest, if at all, within twentyone years after lives in being, counting a child en ventre sa mere as in being. Any devise, which necessarily vests within that period is good; and it is quite immaterial that in the same sentence or clause, or with respect to the same subject matter, there be other devises which are too remote, or even that upon the identical devise there be engrafted remote ulterior limitations. II. The devise to the grandchildren was a vested estate. It has been assumed for the purposes of argument thus far, that the estate devised did not vest at testator's death. But it did vest then; and that being so, the question of remoteness disappears. The trustees took a legal estate, in fee simple. Nothing less would suffice for the execution of the trusts imposed upon them. Sears v. Russell, 8 Gray, 86; Rees v. Williams, 2 M. & W. 749; Garth v. Baldwin, 2 Ves. Sen. 646; Doe v. Edlin, 4 Ad. & El. 582; Doe v. Field, 2 B. & Ad. 564; Moore v. Burnet, 11 Ohio, 334; Neilson v. Lagow, 12 How. 98. This disposes of the claim that the estate devised to the grandchildren is a vested legal remainder limited upon the legal estate given to the trustees. Nor is the estate of the grandchildren an equitable remainder. The estate of the grandchildren is not a remainder at all; it is not what remained after carving out a particular estate, legal or equitable; it is Argument for Appellants. not an estate limited to take effect at the expiration of a prior estate; but an equitable right, upon the happening of a particular event, to wit, the arrival at majority of the youngest grandchild, the children being dead, to have the lands partitioned, and conveyed to them in fee simple. Holt v. Lamb, 17 Ohio St. 374, 387; Phipps v. Ackers, 9 Cl. & Fin., 583. The devise is an executory trust, which creates a legal estate in fee simple in the trustees, and an equitable estate in fee, to commence in futuro, in the grandchildren living at the death of the testator, subject to open and let in after-born grandchildren, with a devise over of the share of any grandchild dying leaving issue, to such issue. Phipps v. Ackers, 9 Cl. & Fin. 583; Jeefers v. Lampson, 10 Ohio St. 101; Linton v. Laycock, 33 Ohio St. 128; Fox v. Foc, L. R. 19 Eq. 286; Doe v. Considine, 6 Wall. 458; Hawkins on Wills, 237241. To prevent a perpetuity the devise to grandchildren dying before distribution may be construed as an estate tail. Allyn v. Mather, 9 Conn. 114, 127; Doe v. Cooper, 1 East, 229, 234; Humberston v. Humberston, 1 P. Wms. 332. Where an instrument is open to two constructions, the one consistent and the other repugnant to law, or the one will give effect to the whole instrument and the other will destroy a part, the former must be adopted. Pruden v. Pruden, 14 Ohio St. 251. The whole doctrine of estates tail cy pres is founded on this principle. See Hawkins on Wills, 181, quoting Moneypenny v. Dering, 16 M. & W. 428; same, 182, citing Vanderplank v. King, 3 Hare, 1. III. As to the Ross County Record. 1. Neither the complainants nor their trustees were parties to this record. The only parties to the proceeding, so far as the land in question is concerned, were the children of the testator, and his then living grandchildren. The complainants were not then in being. The trustees for grandchildren were not parties; and the bill alleged that the persons made defendants were the only persons specified in the will.-2. A proceeding to contest a will under the statute of Ohio* binds only the parties thereto. * The statute in force at the time, and under which these proceedings were had, was the act relating to wills, passed February 18, 1831, 3 Chase Stat. Argument for Appellants. It is not an ex parte proceeding, or in the nature of a proceeding in rem, but a suit in personam in chancery, whose decree binds none but the parties. Holt v. Lamb, 17 Ohio St. 374. This settled construction of the statute by the courts of Ohio is binding upon this court, as much so as if part of the statute. Polk v. Wendall, 9 Cranch, 87, 98; Thatcher v. Powell, 6 Wheat. 119, 127; Jackson v. Chew, 12 Wheat. 153; Nichols v. Levy, 5 Wall. 433; Williams v. Kirtland, 13 Wall. 306; Barrett v. Holmes, 102 U. S. 651; Burgess v. Seligman, 107 U. S. 20, 33; Leffingwell v. Warren, 2 Black, 599, 603; McKeen v. Delancy, 5 Cranch, 22; Christy v. Pridgeon, 4 Wall. 196. In order that there may be a proceeding in rem, the res must be either (1) a thing guilty, that is, some act must have been done in, with, or by it, in contravention of some law having the forfeiture of such misused thing as its sanction; or (2) it must be a thing hostile, in other words, owned or controlled by a public enemy; or (3) it must be a thing indebted, that is liable in law for the payment of a sum of money. It is manifest that a suit to set aside a will is not in rem. Strictly speaking, it is not a suit, but a proceeding to secure the registration of a posthumous conveyance.-3. The legal trust estate was not affected by the proceedings to set aside the will. The resignations did not divest the trustees of the legal estate; but even if they did, the estate passed to the heirs charged with the trust. Adams v. Adams, 21 Wall. 185, 192; Story Eq. Jur. § 976; Jeremy Eq. 163; Hargrave's note 146 to Co. Lit. 113 a ; 1 Spence Eq. Jur. 501; Perry on Trusts, § 240.—It is equally clear that the equitable estate of the complainants was not affected by the suit to set aside the will. If it did not vest at the testator's death in the grandchildren then living, 1785. Sec. 20 (p. 1788), is as follows: "That 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." Argument for Appellants. it was not represented. If it was then vested in the grandchildren who were parties to the suit, it was subject to be divested to let in after-born grandchildren. It is well settled that the rights of the unborn in such case are not affected by a decree against the living holders. Downin v. Sprecher, 35 Maryland, 474; Graham v. Houghtalin, 1 Vroom, 552; Monarque v. Monarque, 80 N. Y. 320; Goodess v. Williams, 2 Yo. & Col. Ch. 595. The cases cited by opposite counsel on this point are all cases of contingent remainders, or estates tail, or suits for partition, or by trustees to change investments. See Watson v. Watson, 3 Jones Eq. 400; Lancaster v. Thompson, 5 Madd. 4, 13; Adair v. New River Co., 11 Ves. 428, 444; York v. Pilkington, 1 Atk. 282; Attorney General v. Corporation of London, 8 Beav. 270, 282; Holland v. Baker, 3 Hare, 68. "The great and essential difference between the nature of a contingent remainder, and that of an executory devise (and that, indeed, which renders it material to distinguish the one from the other in their creation) consists in this: that the first may be barred and destroyed, or prevented from taking effect, by several different means; whereas, it is a rule, that an executory devise cannot be prevented or destroyed, by any alteration whatsoever in the estate out of which, or after which it is limited." Fearne on Remainders, 418. If courts, where no person is in existence entitled to an estate of inheritance, have sometimes placed on record an existing tenant for life, that has never been done unless the tenant was one whose issue, if he were to have any, would become entitled to the inheritance. Calvert on Parties, 60. And the bill must contain a specific allegation that the parties are suing on behalf of themselves and others. The right of one defendant to represent many in a common interest is limited to cases where the rights in issue are in the nature of general rights, and to cases in which the object of the suit is merely to change the form of the property to which they attach-certainly not where its object is to divest or destroy them. Representation by an adverse interest is an absurdity which the law does not contemplate. Thus the unborn grandchildren, not being represented in law or in fact, in the suit to set aside the will, their estate remains intact. Even if the will |