Opinion of the Court. tor 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 defence 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, L. R. 3 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, 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 Gratt. 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 in Opinion of the Court. vestment 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 Maryland, 474. Another class of cases is that of creditors, who are entitled to present payment of their debts, whoever may be the future owner of the estate. For instance, in a bill to enforce a debt charged upon real estate devised to one for life, with contingent remainder to his unborn son, the executor and the tenant for life are sufficient parties, because, as was said long ago by Lord Hardwicke, if there is no one in whom the estate of inheritance is vested, "it is impossible to say the creditors are to remain unpaid and the trust not to be executed until a son is born. If there is no first son in being, the court must take the facts as they stand." Finch v. Finch, 2 Ves. Sen. 491; Baylor v. Dejarnette, 13 Gratt. 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 VOL. CXIII--26 Opinion of the Court. 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 & Walker, 1, 133; Mullins v. Townsend, 5 Bligh N. R. 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. 1, 16, "It is this necessity which compels the court to make such cases exceptions to the general rule;" and, as Chancellor Walworth observed in Lorillard v. Coster, 5 Paige, 172, 215, there cited, "the executors and trustees must be considered as the legal representatives of the rights of persons not yet in esse.” And they are necessary parties. Nonnelay v. Balls, 6 Jur. 550. In Palmer v. Flower, L. R. 13 Eq. 250, cited for the defendants, in which the court 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 jurisdic Opinion of the Court. tion, 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; Statute 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 nece ary 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; Fell 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 Myl. & Cr. 89; Green v. Lane, 16 Jur. 1061; Devaynes v. Robinson, 24 Beav. 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 Opinion of the Court. 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 Mining Co., 1 Sch. & Lef. 238, 241; Fordham v. Rolfe, Tamlyn, 1, 3, and note; Waterton v. Croft, 6 Sim. 431; Mitford Pl. Calvert on Parties, 218-220; 1 Maddock Ch. Pract. 604; Story Eq. Pl. § 87; Rule 50 in Equity, 1 How. lvi. 173; 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 |