by the United States Circuit Court for the Southern District of Ohio

“ The proceeding is in rem—the administrator represents the land; they are analogous to proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing—the subject-matter before them—without regard to the persons who may have an interest in it. All the world are parties. In the orphans’ court, and in all courts who have the power to sell the estates of intestates, their action operates on the estate, not on the heirs of the intestate, The purchaser claims, not their title, but one paramount. ”

“ 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 ”

“ It is a general rule that no one need be made a party against whom there can be no decree. Barb. on Parties, 457. The law never requires a vain thing.
Looking at the face of the will we are satisfied that the executors were intended to hold and did hold their title virtute officii. ”

“ It involves the welfare of society, and rests on a solid foundation of reason and justice. If it were otherwise the long delay attending the settlement of rights of property in such cases would always be attended with inconvenience, and, not unfrequently, would bring in its train ruinous consequences. ”

“ The careful hand that drew the will used words of inheritance in defining the estate of the executors. The estate was no larger than the purposes of the trust required. The controlling idea was to prevent the devolution of the title and its vesting in the devisees until they received it by the execution of the deeds of partition at the appointed time. If one of the grandchildren died before that time, though over 21 years of age, he could not devise his interest in the real estate ”

“ But our attention has been called by several of the eounsel for the defendants to another ground of objection to the bill, upon which we prefer mainly to rest our decision. It is that the decree setting the will aside, cannot be attacked collaterally, and that if it be assailed the assault must be made in a proceeding had directly for that purpose. Adjudications of the supreme court of the United States are numerous and strong upon the subject. We will advert briefly to a few of them. ”

“ It alleges further that, upon the death of the testator, his children ignored the will and the rights of the grandchildren under it, and proceeded to appropriate to themselves all the lands in question by a proceeding in partition in the court of common pleas of Ross county. The prayer of the bill is that the defendants be required to account for the rents and profits of the lands; that it be decreed they hold their respective titles in trust for the grand and great grandchildren of the testator, according to the provisions of the will ”