ALLEN CAMPBELL MCARTHUR ET AL., one years of age should arrive at that age, and then Appts., v. DAVID H. SCOTT ET AL. (See S. C., Reporter's ed., 340-407.) Construction of devise of land-when executors take title in fee-equitable vested remainders-bill in equity to set aside the will and annul the proOhio Statute as to wills-necessary parties to suit in equity-trustee, when necessary partypower of probate court-decree annulling probate, when void as to after-born persons. *1. Words in a will, directing land to be conveyed to or divided among remainder-men at the expiration of a particular estate, are to be presumed, unless clearly controlled by other provisions, to relate to the beginning of enjoyment by remainder-men, and not to the vesting of the title in them. 2. A testator devised lands and personal property to his executors and their successors and their heirs, in trust; and directed that the income, until his youngest grandchild, who might live to be twentyone years of age, should arrive at that age, should be divided equally among the testator's children or the issue of any child dying, and among the grandchildren also as they successively came of age; that, "after the decease of all my children, and when and as soon as the youngest grandchild shall arrive at the age of twenty-one years," the lands should be "inherited and equally divided between my grandchildren per capita," in fee, and that in like manner the personal property should "at the same time be equally divided among my said grandchildren, share and share alike, per capita," and that if any grandchild should have died before the final division, leaving children, they should take and receive per stirpes the share which their parent would have been entitled to have and receive if then living; and provided that any assignment, mortgage or pledge by any grandchild of his share should be void, and the executors, in the final division and distribution, should convey and pay to the persons entitled under the will. Held, that the executors took the legal title in fee, to hold until the final division; and that the trusts were imposed upon them as executors. Held, also, that all the grandchildren took equitable vested remainders, opening to let in those born after the testator's death, and subject to be devested only as to any grandchild who died before the expiration of the particular estate, leaving issue, by an executory devise over to such issue. 3. Under the Statute of Ohio of December 17, 1811, providing that no estate in lands shall be given or granted by deed or will to any person or persons, but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will, a devise of a vested remainder to grandchildren of the testator, with an executory devise over of the share of any grandchild, who shall have died, leaving children, before the coming of age of the youngest grandchild, to the children of such deceased grandchild, is valid, so far at least as concerns the grandchildren, though born after the testator's death. to convey the remainder to his grandchildren in equal shares; and provided that if any executor should die, resign or refuse to act, a new executor, to act with the others, should be appointed by the court of probate. The will was admitted to probate, upon the testimony of the attesting witnesses, under the Statute of Ohio of February 18, 1831, and three executors were appointed and acted as such, Two of them afterwards resigned and their resig nations were accepted by the court of probate. A bate was then filed, under that statute, by one of the children against the other children and all the grandchildren then in being, alleging that they were the only persons specified or interested in the will, and were the only heirs and personal representatives of the deceased; those grandchildren being infants, one of the children was appointed guardian ad litem of each; the third executor, who was one of the children made defendants in their own right and who was not made a party as executor or trustee, and did not answer as such, resigned, and the resignation was accepted by the court of probate, pending that suit, and no other executor, trustee or administrator with the will annexed was made a party; it was found by a jury that the instrument admitted to probate was not the testator's will, and a decree was entered setting aside the will and annulling the probate. Partition was afterwards decreed among the heirs, and they conveyed portions of the lands set off to them to purchasers for value and without actual notice of any adverse title. Held, that the decree annulling the probate was absolutely void as against grandchildren afterwards born, and that they were entitled to recover their shares under the will against the heirs and purchasers, and might, if the parties were citizens of different States, bring their suit in the Circuit Court of the United States. 7. Holt v. Lamb, 17 Ohio St., 374, followed. Argued Jan. 28, 29, 1884. Ordered for reargu [No. 15] ment Mar. 17, 1884. Reargued Apr. 7, 8, 9, 1884. Decided Mar. 2, 1885. PPEAL from the Circuit Court of the Unit The history and facts of the case fully appear in the opinion of the court. Messrs. Wm. M. Ramsey, Lawrence Maxwell, Jr., Rufus King and S. J. Thompson, for appellants: The devise could not be questioned under the common law. The final distribution necessarily occurs within twenty-one years after lives in being. But the case is governed by the Act of December 17, 1811, which has been in force in Ohio ever since. 2 Chase's Statutes of Ohio, 762. The common law, although never adopted by express legislative enactment in Ohio, has always been recognized as the law of the State. R. R. Co. v. Keary, 3 Ohio St., 205. The policy of Ohio in favor of issue and de4. All persons interested in a suit in equity and scendants is shown by the Act in question to be whose rights will be directly affected by the decree more liberal than that of the common law. In must be made parties to the suit, unless they are too Ohio an estate tail is not alienable by the donee numerous, or some of them are out of the jurisdiction or not in being; and in every case there must in tail; Pollock v. Speidel, 17 Ohio St., 447; be such parties before the court as to insure a fair nor during his life by his issue; Dart v. Dart, trial of the issue in behalf of all. 5. A trustee having large powers over the trust 7 Conn., 250, approved in Pollock v. Speidel. estate and important duties to perform with respect Therefore, an estate tail given, as it may be, to to it is a necessary party to a suit by a stranger to the unborn issue of a person in being, is in Ohio defeat the trust. 6. A citizen of Ohio devised lands in that State to inalienable during three successive generations; his three executors, in fee, in trust. to pay the in- whereas, at the common law, land could never come to his children and grandchildren until the be tied up longer than two generations and youngest grandchild who should live to be twenty-twenty-one years. On the part of the courts *Head notes by Mr. Justice GRAY. NOTE. Necessary parties in equity. See note to Marshall v. Beverly, 18 U. S. (5 Wheat.), 313. When the parties are numerous, part may maintain a bill in equity for benefit of all. See note to Smith v. Swormstedt, 57 U. S. 16 How.), 288; and note to Bacon v. Robertson, 59 U. S. (18 How.), XV., 499. of the State, the same liberal policy is disclosed. Gibson v. McNeely, 11 Ohio St., 135. The Supreme Court of Ohio has never yet declared a devise void for remoteness. The 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., | certained within legal limits, is valid as within 173; Brasher v. Marsh, 15 Ohio St., 103. the rules against perpetuities, although invalid as to the rest, is directly affirmed in numerous authorities. It is clear that the Act of 1811 is, as appellees claim, a restraining and not an enabling Act. It modifies the common law in force at the time Wilkinson v. Duncan, 30 Beav., 111; Storrs of its passage-not by abridging the period v. Benbow (supra); Cattlin v. Brown (supra); within which, after lives in being, an estate Knapping v. Tomlinson, 34 L. J. Ch., 3; Grif must vest; but by cutting it off altogether, ex-fith v. Pownall, 13 Sim., 393; Goodier v. Johnson cept in favor of the immediate descendants of (supra); Jarm. Wills, 271, 4th Eng. or 5th Am. persons in being at the making of the will, so ed. that there shall be no devise except to persons in being, leaving the common law rule intact. The statute merely requires that a person, to be capable of taking under a devise in his favor, must be in esse at the time such devise was made, or be the immediate issue or descendant of such person, 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, so far as the statute is concerned, the grant is valid. The provision for children of pre-deceased grandchildren, if illegal, does not affect the vafidity of devise to complainants. "Immediate issue in this statute means 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, and in fact all of the grandchildren included in this trust, are the Immediate issue of persons in being at the mak- | ing 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 twentyone 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. In this case there is a devise, within due limits of time, to persons authorized to take, of definitely ascertainable aliquot parts of certain lands. But the devise to the grandchildren was a vested estate, and the question of remoteness disappears. The trustees took a legal estate in fee simple, not only because the devise was in terms to them and their heirs, but because the proper execution of the trust required them to have the fee. Nothing short of a fee simple would suffice for the exccution of these trusts. Sears v. Russell, 8 Gray, 86; Doe v. Williams, 2 Mees. & W., 749; Garth v. Baldwin, 2 Ves., 646; Shelley 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; there can, of course, be no remainder after a fce simple. Nor is their estate an equitable remainder. It is not a remainder at all; it is not what remained after carving out a particular estate, legal or equitable; it is 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; Phipps ▼. Ackers, 9 Clark & F., 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. Wilkinson v. Duncan, 30 Beav., 111; Knapping v. Tomlinson, 34 L. J. Eq., 3; Wilson v. Wilson, 4 Jur. N. S., 1076; 28 L. J. Eq., 95; Griffith v. Pownall, 13 Sim., 393; Storrs v. Benbow, 3 DeG. M. & G., 390; 2 Myl. & K., 46; Duncan McArthur's will created, with respect Cattlin v. Brown, 11 Hare, 372; Goodier v. to the lands in question, an executory trust, Johnson, 18 L. R., Ch. D., 441; Darling v. Rog-vesting in the trustees the legal estate in fee ers, 22 Wend., 483; Kane v. Gott, 24 Wend., simple, and in the grandchildren living at the 641; Savage v. Burnham, 17 N. Y., 576; Down-death of the testator the equitable estate in fee ing 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. (S. C.), 246; Hill, Trust., 394; Eyre v. Marsden, 4 Myl. & C., 231; Nettleton v. Stevenson, 3 DeGex & S., 366. The common-law rule is completely expressed in the simple statement that a devise to be valid, must necessarily vest, if at all, within twenty-one years after lives in being, counting children in ventre sa mère 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. The doctrine that a devise to a class, where the individual shares of the members can be as simple to commence in futuro, 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; and therefore the question of perpetuities does not arise. Phipps v. Ackers, 9 Clark & F., 583; Jeefers v. Lampson, 10 Ohio St., 101; Linton v. Laycock, 33 Ohio St., 128; Fox v. Fox, L. R., 19 Eq., 286; Doe v. Considine, 6 Wall., 458 (73 U. S., XVIII, 869). To prevent a perpetuity, the devise to grandchildren dying before distribution may be construed as an estate tail. Allyn v. Mather, 9 Conn., 127; Doe v. Cooper. 1 East, 229; Humbertson v. Humbertson, 1 P. Wms., 332. The great object in this case was to create a succession of estates; and the particular mode described may well be disregarded, when it becomes necessary to prevent the devise from | is liable thus to open, are not affected by a debeing defeated. Nicholl v. Nicholl, 2 Bl. 1159; Pitt v. Jackson, 2 Bro. Ch. Cas., 51; Chapman v. Brown, 3 Burr, 1626; Robinson v. Hardcastle, 2 T. R., 241. "When an instrument is open to two constructions, the one consistent and the other repugnant to law, or when the one will give effect to the whole instrument and the other will destroy a part, the former must always be adopted." James v. Pruden, 14 Ohio St., 251. The whole doctrine of estates tail cy-près, is founded upon this principle. Hawkins on Wills, 181, quoting Moneypenny v. Dering, 16 Mees. & W., 428, and citing Vanderplank v. King, 3 Hare, 1. II. The Ross County Record. cree against the living holders. Downin v. Sprecher, 35 Md., 474; Graham v. Houghtalin, 1 Vroom, 552; Monarque v. Monarque, 80 N. Y., 320; Goodess v. Williams, 2 Y. &. C. Ch., 595; see, also, Bolgiano v. Cooke, 19 Md., 375; Cross v. De Valle, 1 Wall.,1 (68 U. S., XVII,, 515): Watson v. Watson, 3 Jones, Eq., 400; Williams v. Hassell, 74 N. C., 434; Justice v. Guion, 76 N. C., 442. The cases cited by opposite counsel in this connection were, without exception, cases of contingent remainders, or estates tail, or suits for partition, or by trustees to change invest ment. Watson v. Watson, 3 Jones, Eq. (N.C.), 404; Ad. Eq., 315; see, also, Fearne, Rem., 418; Monarque v. Monarque, 80 N. Y., 320; Goodess v. Williams, 2 Y. & C. Ch., 598; Ad. Eq., 319. The complainants were not parties; they were "A court of equity," says Mr. Justice Curtis, not then in being. The trustees for the grand-in Sohier v. Williams, 1 Curt. (C. C.), 479," looks children were not parties, nor was there any to the substantial interest, and not to the parallusion in the bill to that trust. ticular mode of enjoyment, for the purpose of A proceeding to contest a will under the stat-representation; and if the party before the court ute of Ohio binds only the parties thereto. Act is one whose interest is of such a nature as to of February 18, 1831; 3 Chase, Stat., 1785, sec. insure his giving a fair trial to the question in 20, p. 1788. contestation, that is sufficient." 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., 375. The decision in Holt v. Lamb is not inconsistent with that of Bradford v. Andrews, 20 Ohio St., 208. The construction by the Supreme Court of Ohio has become a rule of property, and is binding upon this court. Polk's Lesses v. Wendal, 9 Cranch, 87; Thatcher v. Powell, 6 Wheat., 127; Jackson v. Chew, 12 Wheat., 153; Nichol v. Levy, 5 Wall., 433 (72 U. S., XVIII., 596); Williams v. Kirtland, 13 Wall., 306 (81 U. S., XX.. 893); Barrett v. Holmes, 102 U. S., 651 (XXVI., 291); Burgess v. Seligman, 107 U. S., 33 (XXVII., 365); McKeen v. Delancy's Lessee, 5 Cranch, 22; Christy v. Pridgeon, 4 Wall., 196 (71 U. S., XVIII., 322). The legal trust estate was not affected by the suit to set aside the will. The title vested in the executors by Duncan McArthur's grant has not passed out of them, but remains in them and their heirs to this day. If the resignation of the executors operated to devest them of their legal title, and to devolve that title upon the heirs of the testator, it passed to those heirs charged, nevertheless, with the trust. Adams v. Adams, 21 Wall., 192 (88 U. S., XXII., 507). "It is a rule in equity," says Mr. Justice Story, Eq., 976, "which admits of no exception, that a court of equity never wants a trustee." Jeremy, Eq, 163; Co. Litt., 113 a, note 2; 1 Spence, Eq. Jur., 501; Perry, Trusts, sec. 240. The equitable estate of the complainants was not affected by the suit to set aside the will. If it be held that the entire equitable fee was at that time vested in the grandchildren who were parties to the suit to set aside the will, the result is the same, for it was vested subject to be devested to let in after-born grandchildren; and the authorities are uniform.to the effect that the rights of the unborn, in whose favor a title In cases of bills instituted against certain persons on behalf of others, as well as themselves, it must be alleged that the suit is brought against them in that character. Lanchester v. Thompson, 5 Mad.,13; Adair v. New River Co., 11 Ves., 444. It must appear that the defendants on record are such in number and character as to make it certain that the question will be satisfactorily tried. Calvert, Parties, 45; Mayor of York v. Pilkington, 1 Atk., 284; Atty-Gen. v. London, 8. Beav., 282; Holland v. Baker, 3 Hare, 68. The rule which preserves the right of the unborn is only an application of the elementary and fundamental principle, that no man can be deprived of life, liberty or property, without due process of law. It is essential to the nature of judicial proceedings that they shall not affect the rights of any man, without the opportunity of appearing and defending. Cooper v. Wandsworth, 14 C. B. N. S., 194; Childs v. Childs, 10 Ohio St., 343. The equity of the bill is not cut off, even if the will is in law set aside. Trustees who have, in fraud of the rights of their cestuis que trust, caused to be conveyed to themselves the trust estate, will be treated in a court of equity as trustees and required to account as such. Long v. Mulford, 17 Ohio St., 509; Hill, Trust, 144; Rammelsberg v. Mitchell, 29 Ohio St., 57; Perry, Trusts, sec. 181; Middleton v. Middleton, 1 Jac. & W., 96; Reech v. Kennegal, 1 Ves., 123; Oldham v. Litchfield, 2 Vern., 506; Dutton v. Poole, 2 Lev., 211; Mastaer v. Gillespie, 11 Ves., 638; Eldredge v. Jenkins, 3 Story, 181; Bulkley v. Wilford, 2 Clark & F., 102; §. C., 8 Bligh., N. S., 111; Kerr, Fraud, 286; see, also, Barnesly v. Powel, 1 Ves. Sr., 120; Allen v. Macpherson, 1 Ph., 145; 1 H. L. Cas., 213; Meader v. Norton, 11 Wall., 457 (78 U. S., XX., 187); Cocks v. Ízard, 7 Wall., 559 (74 Ú. S., XIX., 275); Slater v. Maxwell and James v. R. R. Co., 6 Wall., 276, 752 (73 U. S., XVIII., 799, 885); Goodin v. Canal Co., 18 Ohio St., 182; Michoud v. Girod, 4 How., 503. III. The defense of innocent purchaser ap-|the will was made and took effect, and when plies only to a defendant who has purchased the will was contested. the legal title in ignorance of the complainant's equitable title. Vattier v. Hinde, 7 Pet., 252. The probate and record of the will passed title to the devisees in the lands devised, wherever situated in the State, and such title dates from the death of the testator. Lessee of Hall v. Ashby, 9 Ohio, 96; Carpenter v. Denoon, 29 Ohio St., 395. There can be no defense of innocent purchase in the face of a recorded title. Dick v. Balch, 8 Pet., 30; Nichols v. Eaton, 91 U. S., 726 (XXIII., 257). Mr. R. A. Harrison, for Scott et al., appellees: I. The appellants are bound by the verdict and decree annulling the will. All interested persons who were then in esse were parties to the proceeding. The verdict and decree adjudged the entire instrument to be invalid and set the same aside; and the probate and record of the instrument was, as a consequence, annulled. An issue to try the validity of a will is not, under the statute, an adversary suit. There are, strictly, no parties to it. Both sides are equally actors in obedience to the order directing the issue. The statute confers upon the court jurisdiction over the thing itself, for the purpose of a final determination judicially of its legal status. A proceeding under the statute to probate a will, in the first instance, is ex parte and in rem. So a proceeding for the contest of the validity of a will after it is so probated, is in the nature of a proceeding in rem. Carroll v. Carroll's Lessee, 16 How., 275. The ruling in that case is also in conflict with other decisions of the same court, and the decision is unsound. Meese v. Keefe (supra); Bradford v. Andrews (supra); Walker v. Walker, 14 Ohio St., 157; Brown v. Burdick (supra); Haynes v. Haynes (supra). There are other instances, besides those of suits to contest the validity of wills, in which it is well settled that decrees in chancery bind interests in property devised to unborn persons. Parker v. Peters, 6 Cent. L. J., 478; Loril lard v. Coster, 5 Paige, 172; Palmer v. Flower, L. R., 13 Eq., 250; S. C., 1 Moak's_Eng. Rep., 664; Basnett v. Moxon, L. R., 20 Eq., 182; S. C., 13 Moak's Eng. Rep., 716; Wills v. Slade, 6 Ves., 498; Cross v. De Valle, 1 Wall., 1 (68 U. S., XVII., 515). If a verdict and decree setting aside an instrument of writing admitted to probate as a will are inoperative as to persons unborn, then such an instrument cannot be set aside as to such interests at all. The Legislature never contemplated that the right should be thus nullified. The adoption of the theory upon which the appellant's case proceeds would render the administration of estates in numerous instances impracticable. The rule that the verdict and decree in a contested will case are binding upon contingent and executory interests of persons not in esse and unascertained when the contest takes place, is founded upon reasons of public policy. The It affects all persons, and the estates in ex-rule is essential to give repose and security to pectancy of all persons who may come into ex-land titles which depend upon the validity of istence after the sentence of nullity. wills and testaments. It is necessary to suppress litigation. The statute unqualifiedly limited the time within which the contestant could file his bill. There could be but a single suit to have the legal status of the instrument admitted to probate judicially and finally determined. The instrument could not be set aside as to living interested persons and allowed to remain in force as to the unborn executory devisees. From im perious necessity, therefore, the verdict and decree setting aside the entire instrument binds the appellants, as well as the actual parties to the proceeding. Singleton v. Singleton, 8 B. Mon., 340; Hunt v. Acre, 28 Ala., 580. The decree annulling the probate is final and conclusive as to the validity of the will in all courts and upon all persons, until set aside and reversed in some direct proceeding. Baker v. Hart, 3 Atk., 546; Johnson v. Glasscock, 2 Ala., 218; Hill v. Barge, 12 Ala., 687; Bogardus v. Clark, 4 Paige, 623; Taylor v. Tibbatts, 13 B. Mon., 177; Stevenson v. Huddleson, 13 B. Mon., 299; Laughton v. Atkins, 1 Pick., 535; Enloe v. Sherrill, 6 Ired., 212; Scott v. Calvit, 3 How. (Miss.), 148; Benoist v. Murrin, 48 Mo., 48; Fink v. Bruihl, 47 Mo., 173; Haynes v. Haynes, 33 Ohio St., 598; Mosier v. Harmon, 29 Ohio St., 221; Brown v. Burdick, 25 Ohio St., 260; Bradford v. Andrews, 20 Ohio St., 208; Meese v. Keefe, 10 Ohio, 362. The case of Holt v. Lamb, 17 Ohio St., 374, is not a case in point. The testatrix there devised vested estates to persons in being when Mosier v. Harmon, 29 Ohio St., 220; Walker v. Walker, 14 Ohio St., 157, and cases above cited from Ky. Ala., Miss., Mo., and Ga. Reports. It is the duty of the court, in cases of contested wills under the Act of Ohio, to protect the interests of unborn persons to whom contingent bequests or devises are made. Scott v. Calvit, 3 How. (Miss.), 148; Singleton v. Singleton, 8 B. Mon., 340. The fact that there were no executors of the will in existence when the verdict and decree were rendered, does not entitle the complainant to treat them as nullities. Upon the acceptance of the resignations of the executors, their powers and duties ceased. Act of March, 12, 1831, 8 Chase's Stats., of Ohio, 1775. An executor is to be considered as holding property devised to him in that character, unless it clearly appears from the face of the will that the testator intended it to be held by him as a special trustee. State v. Nichols, 10 Gill & J., 27; Perkins v. Moore, 16 Ala., 9; Steele v. Worthington, 2 Ohio, 182; Gandolfo v. Walker, 15 Ohio St., 251. An executor does not become a special trustee until he actually qualifies as such. Perkins v. Moore (supra); Newcomb v. Williams, 9 Met., 525; Dorr v. Wainright, 13 Pick., 328; Towne v. Ammidown, 20 Pick., 535; Felton v. Sawyer, 41 N. H., 202. The persons named as executors qualified as such, but did not qualify or act in the capacity of special trustees. Where there is no special designation of the executor or any other person as a trustee, it belongs to the executor, as such, to administer the estate according to the provisions of the will. Dorr v. Wainwright, 13 Pick., 328; 1 Wms., Exrs., 6th Am. ed., 528, and cases cited in note (c). After the acceptance of their resignations, the executors could exercise no powers concerning the alleged will or the decedent's estate. They had no interest in the question in contest. When they ceased to be executors, they did not represent the estate nor any person interested therein. In Ohio, an executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law. He is not entitled, when the will is adjudged invalid, to charge the estate in his settlement account, with the expense of maintaining such defense. And it seems, therefore, that he is neither a necessary nor a proper party. Andrew's Exrs. v. His Administrators, 7 Ohio St., 143. If it were necessary, the principle of virtual representation of persons not in esse by actual parties to the suit would be applied. The grandchildren who were in being and actual parties to the contest, stood, when the contest was had and when it must take place if at all, in precisely the same relation to the alleged will and the estate devised, as the grandchildren who were afterward born. The grandchildren who were actual parties must, under the circumstances and from considerations of necessity, be held, for the purposes of the contest, to have virtually represented after-born grandchildren. The principle of virtual representation is fully examined in the following cases: Mead v. Mitchell, 17 N. Y., 210; Baylor's Les see v. Dejarnette, 13 Grat., 152; Faulkner v. Davis, 18 Grat., 651; Sohier v. Williams, 1 Curt. C. C., 479; Gifford v. Hort, 1 Schoales & L., 386; Gaskell v. Gaskell, 6 Sim., 643; Powell v. Wright, 7 Beav., 449; Campbell v. Watson, 8 Ohio, 498; Pyke v. Crouch, 1 Ld. Raym., 730. The order of the court appointing an administrator upon the estate of the decedent, as an intestate estate, and the order settling the final account of the administrator, are conclusive and have universal effect. They cannot be treated as nullities, nor can they be collaterally attacked by any person. 2 Swan & Cr. Stats of Ohio, p. 1212, sec. 2; p. 1218, sec. 37; p. 1216, secs. 20, 21 et seq.; 1 Swan & Cr. Stats. of Ohio, p. 599, sec. 169; Swan's Manual for Exrs., 160; Jenison v. Hapgood, 7 Pick., 1; Field v. Hitchcock, 14 Pick., 405; Redf. Wills, pt. 2, p. 894; Clark v. Pishon, 31 Me., 504; Record v. Howard, 58 Me., 225; Sever v. Russell, 4 Cush., 513; Harvard Col. v. Amory, 9 Pick., 446; Stiles v. Burch, 5 Paige, 132; Newcomb v. St. Peter's Church, 2 Sandf. Ch., 636; 3 Grant, 109. If the complainants are entitled to any relief, their only remedy is by a proper bill in the Court of Common Pleas of Ross County, in the nature of a bill of review. v. Reynolds, 10 Wall., 315 (77 U. S., XIX., 932); McNitt v. Turner, 16 Wall., 352 (83 U. S., XXI., 341); Singleton v. Singleton, 8 B. Mon., 340; Baylor's Lessee v. Dejarnette, 13 Grat., 152. The decree is final and conclusive, as to the validity of the will, in all courts and upon all persons, until set aside or reversed in some direct proceeding. Hunt v. Acre, 28 Ala., 580; Johnston v. Glasscock, 2 Ala., 218. II. The alleged devises of the real estate in controversy contain limitations too remote, and are, therefore, ab initio, void, and the real estate descended to the heirs at law. From the earliest times, courts of justice in England set themselves against perpetuities, and the present rule of the common law of England: against perpetuities has been established gradually by judicial decisions. Pells v. Brown, Cro. Jac., 590; 1 Eq. Cas. Abr. 187, ch. 4, A. D. 1621; see Snowe v. Cuttler, 1 Lev., 135, T. Raym., 162; 1 Keb., 752, 800; 2 Keb., 11, 145, 296; 1 Sid., 153; Scatterwood v. Edge, 1 Salk., 229; Love v. Wyndham, 1 Mod., 50; Humbertson v. Humbertson, 1 P. Wms., 332; Sheffield v. Lord Orrery, 3 Atk., 282; Robinson v. Hardcastle, 2 Bro. Ch., 30; Taylor v. Biddal, 2 Mod., 289; Goodman v. Goodright, 2 Burr., 873; Long v. Blackall, 7 T. R., 100; Cadell v. Palmer, 7 Bligh, N. S., 202. The common law rule was believed, by the Legislatures of Ohio and many other States, to be entirely incompatible with our republican institutions and the equality of our citizens. See, Coster v. Lorillard, 14 Wend., 265. The Ohio Statute is a restraining Act and not an enabling Act. Walker, Am. Law, 2d ed., 279, 284; Turley v. Turley, 11 Ohio St., 173; Harkness v. Corning, 24 Ohio St., 416. These cases establish the following rules and principles: 1. The statute is a restraining and not an. enabling Act. 2. The only object of the statute was to prevent the creation of perpetuities. 3. To this end, it prohibits a devise of an interest in land to anyone but a person or persons in being at the time of making the will, or to the immediate issue or descendants of a person or persons in being at the time of making the will. 4. The superadded word "immediate" requires that the person entitled to take must be one to whom, in case of intestacy, the estate would immediately descend under the Statute of Descents of Ohio. 5. Immediately upon the termination of a particular estate by the death of a person in being at the time of making the will, the entire inheritance must immediately vest in the person or persons to whom the estate in remainder or any future estate is given. 8. Grandchildren or great-grandchildren or other issue born subsequently to the death of the person in being when the will was made and to whom a particular estate was given, cannot take. 7. Under the statute, the vesting of estates in remainder or any future estates cannot be postVoorhees v. Jackson, 10 Pet., 449; Grignon's poned beyond the death of a person or persons. Lessee v. Astor, 2 How., 319; Comstock v. Craw-in being when the will was made. ford, 3 Wall., 396 (70 U. S., XVIII., 34); Cooper 8. Under the statute where estates for life,. |