strued 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 jurisdiction, 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. Hen. shaw, 2 Ves. & B. 85; Watkins v. Brent, 1 Mylne & C. 97; Whitworth v. Whyddon, 2 Macn. & G. 52; St. Ohio, March 12, 1831, § 8; 3 Chase's St. 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 necessary 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 Phil. 149, 154; Fell v. Lutwidge, Barn. Ch. 319, 320; Humphreys v. Humphreys, 3 P. Wms. 349, 351; Simons v. Milman, 2 Sim. 241; Beardmore v. Gregory, 2 Hem. & M. 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. Mitf. Eq. Pl. (4th Ed.) 177, 178; Tyler v. Bell, 1 Keen, 826, and 2 Mylne & C. 89; Groves 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, L. R. 9 Ch. Div. 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 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 Mine Co. 1 Schoales & L. 238, 241; Fordham v. Rolfe, Tam. 1, 3, and note; Waterton v. Croft, 6 Sim. 431; Mitf. Eq. Pl. 173; Calv. Parties, 218-220; 1 Madd. Ch. Pr. 604; Story, Eq. Pl. § 87; Rule 50 in Equity, 1 How. lvi.

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 upon which that title depends appeared of record in judicial proceedings, of which all persons, whether claiming under or adversely to the will, were bound to take notice. The will and the original probate thereof were of record in the county in which the probate was granted. The will as there recorded showed the estate devised to these plaintiffs and to the executors in trust for them. The recording of the will and probate in any other county in which there was land devised was required for the purpose of evidence only, and not to give effect to the probate. Hall v. Ashby, 9 Ohio, 96, 99; Carpenter v. Denoon, 29 Ohio St. 379, 395. The record of the decree setting aside the will showed that neither these plaintiffs, nor any executors or successors of executors in the trust, were parties to the suit; and consequently that the plaintiffs' title under the will, as originally admitted to probate, was not affected by that decree. The subsequent purchasers must therefore look to their vendors, and have no equity as against these plaintiffs. 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. Bennett v. Hamill, 2 Schoales & L. 566, 577; Massie v. Donaldson, 8 Ohio, 377, 381.

The present suit does not seek to annul or impeach a decree of a state court granting or refusing probate of a will, but to assert the title of the plaintiffs under a probate granted according to the law of the state, and which, by that law, stands unaffected, as to them, by the subsequent proceedings between other parties, and conclusively establishes their title. The case thus avoids the difficulties considered in Ellis v. Davis, 109 U. S. 485, S. C. 3 SUP. CT. REP. 327, and cases there cited.

The decree of the circuit court must therefore be reversed, and the case remanded for further proceedings in conformity with this opinion.

Mr. Justice MATTHEWS, having been of counsel, did not sit in this case, or take any part in the decision.

*WAITE, C. J., dissenting. Mr. Justice HARLAN and myself are unable to agree to this judgment. In our opinion the decree of the Ross county court of common pleas, setting aside the will of Duncan McArthur, is binding on the complainants in this case. The devise of the property in dispute was in its legal effect to a class of persons, that is to say, to the grandchildren of the testator, the lawful issue of his five surviving children, when the youngest or last grandchild should arrive at the age of 21 years. If a grandchild died before the division of the estate, leaving a child or children, his or her share was to go to his or her child or children. All the children of the testator, and all the grandchildren in being when the decree was rendered, were parties to the suit. Thus it appears that at the time of the decree all persons then in life, of the class of devisees to which the complainants belong, were in court and subject to its jurisdiction. This court now decides that these grandchildren, living at the death of the testator, took in equity a vested re

406

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989.

*407

mainder at once, subject to open and let in after-born grandchildren. Suck being the case, it seems to us that the grandchildren in whom such estate vested, represented those to be born afterwards, for all the purposes of a contest of the will under the Ohio statute governing that proceeding. At most, the executors and the executrix held only the naked legal title. The equitable title was in the grandchildren. Under these circumstances the failure to cause new executors to be appointed after the resignation of those who had legally qualified, and to bring them in as parties, is not, in our opinion, fatal to the decree. The entire equitable estate was represented by the grandchildren in being, and whatever is sufficient to bind them must, as we think, bind also those of the same class of devisees with themselves who were afterwards born.

The devise of the legal title was to the "executors and the successors of them." The two executors who qualified resigned their offices, and their resignations were accepted before the suit was begun. Mrs. Coons, the executrix, did not resign until afterwards, and she was made a party to the suit both in her representative and individual capacity. Before her resignation, and before the suit was begun, she had succeeded to all the rights of the executors in the property. She was the successor of the executors who had resigned, and as such alone represented the legal title. She continued a party to the suit until the final decree. It is difficult to see, therefore, why the naked legal title, which was all the executors took under the will, was not represented in the suit during the whole course of the proceeding. But whether this be so or not is to our minds a matter of no importance. The suit was brought to contest the will. The grandchildren of the testator, the lawful issue of his five enumerated children, formed one class of beneficiaries provided for in the will. As a class, their interests were opposed to the contestants. Those of the class who were in being took the title as well for themselves as for those who should be afterwards born. The interests of those in being and those born afterwards were in all respects the same. It would seem, therefore, that whatever bound those who held the title should bind all those not then in being for whom they held it. Otherwise, as in Ohio, no suit can be brought to contest a will except within two years after probate. It is difficult to see how a will can be contested there when the devise is to a class of persons which may not be full until after that period has elapsed. It is no part of the duty of executors to defend a will against a contest. That is left to the devisees or those interested in sustaining the will. As this, in our opinion, disposes of the case, we have deemed it unnecessary to refer specially to any of the other questions which were presented in argument.

(118 U. S. 585)

PEARCE and another v. HAM.
(October Term, 1884.)

PARTNERSHIP-CONTRACT-FRAUDULENT EXCLUSION OF One Partner BY ANOTHER FROM PROFITS, AND SUBSTITUTION OF A THIRD PARTY.

P. having undertaken, without any just cause, to exclude his partner, H., from an interest in a valuable contract, in which they were equally concerned, and to take in K. in his stead; and K., knowing that P. could not rightfully exclude H., and conspiring with P. to accomplish that purpose, having undertaken to appropriate to himself the profits of the contract, which of right belonged to H.,-such actings and doings of K. and P. had no effect upon the rights of H., and H. is entitled to one-half of the profits of the contract.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

*John M. Palmer, for appellants. S. P. Wheeler, for appellee. WOODS, J. The bill was filed by Charles I. Ham, the appellee, against Isaac N. Pearce and Andrew J. Kuykendall, the appellants. The record

showed the following facts: On August 5, 1868, one Joseph K. Frick entered into a contract in writing of that date with the county court of Johnson county, in the state of Illinois, by which he agreed to build, according to certain plans and specifications, a court-house for said county, at Vienna, the county seat, furnishing the material and completing it by the first Monday of September, 1870, in consideration whereof the county court agreed to pay him $38,357 in the bonds of Johnson county, bearing 10 per cent. interest, and due in six years. The bonds were to be paid in installments: one-fourth at the time of the execution of the contract, one-fourth when the work was half done, one-fourth when the work was three-fourths done, and the residue when it was completed. Frick, to secure the performance of his contract, executed to the judges of the county court a bond in the penal sum of $20,000, with the appellant Andrew J. Kuykendall as his surety. Frick never did any work on the building, and, owing to some misunderstanding with the county court, abandoned the contract, and told Kuykendall that he might go on and build the court-house if he chose to do so. On September 9, 1869, Kuykendall, as the agent and attorney in fact of Frick, assigned the contract of the latter to Ham and Pearce; Ham being the appellee, and Pearce one of the appellants, who had formed a partnership for the purpose of building the court-house under said contract.

*Before accepting the assignment, Ham, who was a practical mechanic, read the contract and made an estimate of the cost of the building according to the plans and specifications, and told Pearce "that there was no money in the contract." He thereupon suggested six changes in the plan, which would greatly reduce the cost, and would not detract from the general utility of the building, and explained them to the county court. The court, without insisting on any reduction in the price to be paid, agreed that the changes might be made, and suggested two others, to which Ham assented, and, with the original contract of Frick thus modified, Ham and Pearce accepted the assignment of the contract and undertook to perform it. About October 1, 1869, they began work on the building, did some excavating for the foundation, and quarried and delivered some stone. This work was carried on under the supervision of Ham, and amounted in value to $690, the most of which was paid by Pearce, but the sum so paid was afterwards refunded to him. Afterwards, Ham, believing that the work of building the court-house could be sublet so as to afford a large profit to Pearce and himself, with that view entered upon a treaty with one Wick wire, and on December 8, 1869, Wick wire, having assented to the terms proposed by Ham, the firm of Ham & Pearce made a contract in writing, of that date, with Wickwire, by which he agreed to furnish the materials and build the court-house according to the modified plans and specifications, and to complete it by the first day of November, 1870, in consideration whereof Ham & Pearce agreed to pay him $27,300 in the bonds of Johnson county, at par, in four equal installments: the first, when Wick wire began the work; the second, when one-third; the third, when threefourths; and the fourth, when all the work was completed. Ham told Wickwire that he should probably be in Vienna and see him every day; and, if so, he would render him all the assistance in his power in the erection of the building and the negotiation of the bonds. Kuykendall, as the agent of Frick, had already received from the county court one-fourth of the bonds which they were to pay for the building of the court-house, and at once turned over to Pearce bonds of the face value of between $8,000 and $9,000, and a special county order for $400. Having made the contract with Wickwire, Ham left Vienna, and about February 1, 1870, engaged in the construction of a piece of railroad in Indiana, which he had contracted to build, and did not return until the court-house was completed. Wick wire, under the supervision and inspection of an agent appointed by the county court, did, in fact, furnish the materials and build the court-house according to the plans and specifica

689.

tions specified in Frick's contract as subsequently modified. The work and materials seem to have been in all respects satisfactory to the county court, who accepted the court-house and paid the contract price, $38,357, in the bonds of Johnson county, at par. These bonds were delivered in installments by the county court to Kuykendall, who used them, either directly or indirectly, to pay Wickwire the amount which he was to receive for the building of the court-house, and divided the residue between himself and Pearce.

The object of the suit was to obtain an account of what was due to Ham by virtue of his said partnership and partnership enterprise, and that Pearce and Kuykendall might be decreed to pay him what might be found due on such accounting either in cash or Johnson county bonds. Upon final hearing upon the pleadings and evidence, the circuit court rendered a decree in favor of Ham against Kuykendall and Pearce for $5,001. The appeal of Kuykendall and Pearce brings that decree under review. Ham and Pearce, it is conceded on all hands, engaged as partners in the enterprise of building a court-house for the county of Johnson. It plainly appears that Ham secured such a modification of the plan and specifications of the court-house as to enable Pearce and himself to build it at a profit, and not at a loss; that after this modification the contract by which Frick had engaged to erect the building was assigned to Ham & Pearce by Kuykendall, acting as attorney in fact for Frick, and that Ham & Pearce sublet the contract to Wickwire on such terms as would yield them a profit of at least $10,000. Ham's interest was worth, as it turned out, not less than $5,000. Without his consent, Ham's share of the profits of his partnership venture was appropriated by Kuykendall and Pearce. These facts, alone considered, justify the decree of the circuit court, and that decree should be affirined, unless the reasons assigned by Pearce and Kuykendall afford good ground for the appropriation by them of Ham's share in the profits of the enterprise.

The answers of both Pearce and Kuykendall, which were not under oath, alleged that after the contract between Ham & Pearce with Wick wire had been made, Pearce, on account of the absence and neglect of Ham, canceled the contract, and Kuykendall canceled the assignment to Ham & Pearce of the contract of Frick. But it appears from their testimony that this was only a mental operation. There was, in fact, no cancellation of either the Wickwire contract or of the assignment of the Frick contract. Pearce handed a copy of the Wick wire contract to Kuykendall to be canceled, but Kuykendall immediately returned it to him uncanceled for safe-keeping. The assignment of the Frick contract was allowed to remain uncanceled upon the records of the county court. What was done, as plainly appears by the testimony of Pearce and Kuykendall, was this: Wickwire, without any new contract in writing between him and Kuykendall, or between him and Kuykendall and Pearce, was allowed to perform, and did perform without any change whatever in its terms, the contract entered into by him with Ham & Pearce. Kuykendall simply took Ham's place in the enterprise, agreeing verbally with Wickwire that he would negotiate the county bonds at 90 cents on the dollar. One excuse given for this is stated by Pearce to be that when he went into the enterprise with Ham, it was with the expectation that Ham, who was a practical builder, would superintend the work, and that he himself would manage the financial affairs of the partnership. But this was the understanding when they expected to carry out the contract themselves, and the necessity for any supervision of the work or financial management mainly ended when they sublet the contract to⭑Wickwire. He carried on the work apparently with fidelity, and certainly to the satisfaction of the county court, under the eye of a supervisor appointed by the court. The only financial duty to be performed by Pearce under the contract of Ham & Pearce with Wickwire was to draw the county bonds as the work progressed, and hand them over to Wickwire as he became entitled to them. There was no neces