Horace Gray

“ 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 the parties before it ”

“ 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 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. ”

“ The more reasonable inference is that, upon the determination of the life-estate by the death of all the childre and grandchildren, for whose benefit it was created, the great grandchildren would be immediately entitled to the remainder. ”

“ The general rule in equity, in accordance with the fundamental principles of justice, is that all persons interested in the 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. ”

“ 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 ”

“ 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. ”

“ 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 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. ”

“ 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 remainder-men 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 remainder-men, and not to the vesting of the title in them. ”

“ 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 ”

“ 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 § 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. ”

“ The rule of the common law, by which an estate devised must at all events vest within a life or lives in being and 21 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 after-born grandchildren ”

“ 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. ”

“ 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 neigher 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 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 in in it, and were the only heirs and personal representatives of the testator. ”

“ 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. ”

“ 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 of the proceeds for the benefit of those who, but for the sale, would have had interests in the land. ”