CONOLLY V. WELLS.
of the motion for a preliminary injunction in this cause, (10 Fed. Rep. 859,) Judge NIXON said: "Estoppel is a as well as an equitable, defense to an action of eject. ment; and the defendant is not compelled to trust to this defense at law, and
then, if he failed, to come here to maintain his equitable rights. It becomes, therefore, a question of proceeding, and in all such cases it is the duty of a court of equity to direct the course which will tend to diminish useless litigation. It is better for all parties to meet the question at once in a suit where all defenses can be considered, and where, in a single proceeding the whole contl'Ovel'sy, in all its aspects, may be settled."
It has always been held that equity will assume jurisdiction when by so doing circuity of action will be prevented j and for this purpose we are warranted, in our view ofthe law pertaining to the facts of this case, in ordering a decree for the complainant. The complainant also contends that equity will, on the facts presented in this case, decree a conveyance of the after-acquired fee of Thomas Vermilya, as an equitable assignment of a possibility, upon the ground of an agreement. There are strong reasons and authority in support of the proposition that such an agreement, as between the original parties, may be carried intO effect by a. court of equity; but there may be some doubt whether, under the circumstances here, the defendant can be decreed to execute a. conveyance stipulated for in an executory contract made by one with whom he was so remotely in privity. It is not, however, necessary to consider this question now, as the complainant will ha.ve sufficient practical relief by the decree of injunction.
McKENNAN, J., concurring.
CONOLLY V. WELLS
((Jircuit (Jourt, E. D. Wiacon8in. August 17, .1887.)
ST. U. S. § 737. Rev. St. U. S. § 737, provides that when a defendant to a suit is not an inhabitant. nor within the district where Buit is brQught, and does not appear, the court may adjudicate the matter betwen the parties before it. and a non joinder of parties. not inhabitants nor found in the district. Shall not constitute matter of abatement or objection to the suit. Complainant, a citizen 01 Illinois. filed a bill for an accounting against defendants, citizens of Wisconsin, executrix and executor of a certain estate, and alleged that one L. was also executor, but was a citizen of Illinois. outside the jurisdiction of the court, and therefore not made a party defendant. Held, that L., having qualified and acted as executor, was Buch an indispensable party to the suit, that a de· murrer to the bill for non-joinder of him as defendant must be sustained, notwithstanding the provisions of the statute.
In Equity. Bill for an accounting. Robert A. Conolly, complainant, filed a bill for an accounting against H. M. Wells, executrix, and E. Mariner, executor, of the will of D.· L. Wells, deceased.
'Iii thiicase, the orighial bill alleged that on the firstrdayof December, 1884, Daniel L. Wells, then being an inhabitant oBhe city of wauKee,. itl,this state,'died testate, leaving a. will, whereby Helena M. Wells waS appbintedexecutrix, and Ephraim Maril'lerand George P. Lee were appointed ,executors thereof; that about January 12, 1885, ?f the executrix, the will of thed,ecEldent was admitted upon court of ;Milwaukee cQuntY,andthat at the time to probate in of the death of Wells and the probating of his will, and at the time the bill was filed, the defendants resided in this district. In the same connectiou it was alleged that George P., :Lee, the othElr executor, resided in the state. of lllinois, and was aciti,zen of that state, and beyond the jurisdiction c;>f: tllis court, and for ,that reason was made a party defendto state. :certain transactions of ant in the bill. The bill then a partnership occurring between the compiainallt and Wells, during the life-time ,of Wells,in connection with the construction of certain railroads. in, the, atates of Micp,iganand Indiana; .these transactions hav:ing their origin in certain pertaining to such. railroad construction, :whichiw;el'e entered complainant and Wells, and QI).account of ,the ,performance 0(. which each was to share in the profits of such construction. The details <.>fthese were set out in the bill; it being further ells appropiated the mO'neys realized on the contracts, and the ,prop-ts .made in work, of which it was charged,t4e,pomplainltnt was entitled to a certain ahare. Among the other allegations of the bill, that Wells delivered to the complainant, in part payment of the amount due to him on account of the work, certain municipal bonds issued by:the township. of St. Joseph, Michigan, upon which bonds nothing was realized by the complainant, and that thereupon he returned the bonds and coupons annexed to Wells, under an agreement with him that he should place the bonds in suit with other bonds then owned by the firm of Wells & French, and should collect the same and pay to the ,complainant the' amount thereof, less his proportionate share of the expenses incident to such suit and collection. It wasl'theh'alleged that neither the bonds nor the avails thereof were ever returned to the Qomplainant or acc9untedfor, but were appropriated by Wells to his own uSe. The bill nextal1eged that these bonds, or, the avails thereofl:'were in, the PQssessiono(the defendalit's executrix and.eJl:ecutor,HeWl)aM. Wells and Ephrai Ill Mariner, and, further, that the defendants had:collected from the railroad corporations for which the was perfQrmedby the, cpmpl!iiilant and\Vells, various sqll).s,of money due OR. the cOllstruction cim.tract. Allegations of fraud intbealleged appropriation by Wells of the profits realized upon the iil biU;and its was, among things, that an account mIght be taken,and stated bet:ween the complainant and the estate of Wells, in respect to the transactions and dealings connected with the said several contracts anuthe' bondS'l'efcrred to, ahd that the :becompel1edby the decree of'this court to pay to the to him upon: the settling of such account. This bill was demurred to for the reason that it did not sufficieJJtlya.l-
CONOLLY 'V. WELLS.
lege the appointment and representative character of the defendants as executor and executrix of the will of the deceased; and the demurrer was sustained on that ground, with leave to amend. A.n 'amendment was then filed, wherein it was alleged that the probate court of Milwaukee county duly issued and delivered to the defendants and the said George P. Lee', letters testamentary 011 the last will and testament of the deceased, as executors and ,executrix thereof, who respectively then and thereaccepted. the tJ;'usts thereby created, and gave as required by law, and ent,eredupon the discharge of their several duties, and at the . tilne (If the filing of the bill, were engaged-the defendants at the city and county of Milwaukee in this district, and the said Lee at the city of Chiago in the state of Illinois-in the discharge of such duties; and that, . as such etecut6r and. executrix, the defendants M!iriner and Helena M. Wells, became and were, possessed of the estate of the said Dani,el The bill as thus amended, was again demurr(;ld to, on ;the ground that it appeared on face of the bill that George P. Lee, executol with the defendants. was a necessary party to the suit, without whose presence it ought not to proceed. N.S. ;!It/urphe/y, for complainant. DavidS" Ordway, for defenda.nts·
J;' by the .demu;rrer., uelwhll wltholit,tbe JllrlsdictlOnOf thIS court, IS anludlspensable party to bill, sO that the 'court cannot proceed in the suit and render a decres 'such as is 'prayed, without his presence asa party arid co-defendant in the action. ' . Section 737 of the Revised Statutes provides that "when there are sev,·era! defehdants in any suit at law or in equity. and one or more of them .are neither inhabitants of, nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction and proceed the'trial and adjudictltion of the suit between the parties'wh() are it; but the judgment or dered therein shall not conclude or prejudice other parties not regu,larly served wi$ process or voluntarily appearing to answer. A non-joinder of, nor found within the district as ·of parties who are not .:aforesaid,shi:l;lf pot constiti.lte matter of abatement'Or objection to the suit." With some unimportant changes in phraseology, this provision is the same as the act of congress of February 28, 1839, 5 St. at Large, c. 36 § 1, p. 321. . . In,ShieUis v. Barrow, 17 How. 130, the supre!lle court pointed out three classes of parties to a bill in equity: : "(1) Formal parties. (2)' 'Persons having an interest in the controversy. ,and who ought to be parties in order that the court may act on that rule which reqUires it to decide' on and finally entire controversy. and do complete justice by adjusting all the rights involved in it. These per· , .sons are commonly termedneeessarY parties; but jf their interests are sepa. rable from those of the parties before the court. so tbat the courtean proceed ;to a decree ,and do complete and final justice without· affecting other.persons
not before the court, the latter are not indispensable parties. (3) Persons who not only have an interest in the controversy, but an interest of sucha nat ure that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination ma> be whOlly inconsistent with equity and good conscience." Again, iQ Barney v. Baltirrwre Oity, 6 Wall. 284, the supreme court say: "There is a class of persons having such relations to the matt!!r in controversy, merely formal or otherwise, that while they may be called proper parties, the court will take no account of the omission to make them parties. There is another class of persons whose relations to the suit are such that, if their interest and their. absence a're formally brought to the attention of the court, it will requil'e them to be made parties if within its jurisdiction, before it will proceed to administer deciding the case. But if this cannot be Buch relief as may be in its power between the parties before it. And there is 'a third class whose interests in the subject-matter of the suit, and in the relief sought, aresobound up within that of the other parties, that their legal presence as patties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases, the court refuses to entertain the suit when these parties cannot be subject to its jurisdiction." In ShieldJJ v. Barrow, supra, it was held that the forty-seventh rule in equity is only a declaration, for the government of practitioners and courts, of the effect of the act of February 28, 1839, (now section 737, Rev. St.,) and ()f the previous 4ecisions of the courts on the sub-ject of thllrt. rulla' (Hcigan v. Walker, 14 How. 36,) andthat"it remaiqs true, notwithstanding the act of congress and the forty-seventh rule, that a circuit court can no decree affecting the rights oi an absent person, and can make no decree between the parties before it which so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without affeqting those rights." In Elm&ndorj v. Taylor, 10 Wheat. 167, it was observed by the court: "If a case maY,be completely decided as between the litigant parties, the circumstance that an interest exists in some other person whom the process of the' court cannot reach,-as if such party be a resident of anoLher state,-: ougpt not to prevent a decree upon its merits." . Wormley v. 8 Wheat. 451; Carneal v. Banb, 10 Wheat. 188; and Hinde, 7 Pet. 2G6, were cases where the rule as to formal or unnecessary parties was applied. Osborn v. Bank, 9 Wheat. 738; and Harding v. Hardy, 11 Wheat. 132, were cases of parties having a substantial interest, but not so connected with the controversy that their joinder was iQdispensable. Cameron v. McRoberts, 3 Wheat. 591; and . Mallow v. Hinde, 12 Wheat. 197, were cases of parties having an interest which was inseparable from the interests of those before the court, and , who were therefore indispensable parties. In Cameron:v.'McRoberts, supra, where the citizenship ofthe other de, fendants th\tnCameron did not appear on the record, the court said: "!fa joint interest vested in Cameron and the other defendants, the court had no jurisdiction over the cause. If a distinct interest vested in Cameron, so that substantial justice (so far as he was interested) could be done without
CO.NOJ.LY V. WELLS.
affecting the other defendants, the jurisdiction of the court may be exercised as to him alone. "
Shields v. Barrow, 8upra, was a suit in equity to rescind a contract of compromise, which from its nature could not be rescinded so far as respected some of the parties who were before the court, and allowed to stand as to other parties who were not before the court, because beyond its jurisdiction. The court therefore held that no decree could be rendered in the cause. Barney v. Baltimore City, f!WJYfa. was a case where partition was asked in equity, of certain real estate in which various parties were interested as tenants in· common. All the part owners were held to be indispensable parties to the suit in order to enable the court to grant the relief prayed, and as some ofthtm were not within the jurisdiction of the court, and could not be brought in, the court held that no decree could be entered on the merits ofthe cause. lnbusch v. JiUrwell, 1 Black, 566, was a suit at law, in which it appeared that partnership goods had been attached on mesne process against. three partners for a partnerl:ihip debt. The property was released on· bond conditioned to pay the judgment which might be recovered against the defendants. The attachment suit was discontinued against two of the defendants therein, for want of jurisdiction, they being citizens of another state, and was prosecuted to judgment agairist the administrator of the other defendant, decE'ased. In suit on the bond-which was the case in judgment-the defense was, that the plaintiff had not recovered judgmentagainst the defendants in the attachment suit, and therefore the condition of the bond was not broken. But it was held that if the nonresident partners had not been originally made parties to the suit, it could have been regularly prosecuted to judgment under the act of February 28, 1839, against the other defendant in his life-time. and after his decease could be revived and prosecuted against his administrator. The non-resident partners were not regarded indispensable parties to the attachment suit. In the opinion of Mr. Justice MILLRR in Barney v. Baltimore Gity,supra, reference is made to the case of a suit against joint obligors in a contract, and he observes that, under the act of 1839, the plaintiff in such a suit can prosecute his suit to judgment against anyone of such joint obligors, in any district where he may be found, citing Inbusch v. Farwell. But it is stated further in the opinion:
"This rule does not conflict with that under which the courts of chancery act in refusing to make a decree where by reason of the absence of persons interested in the matter the decree would be ineffectual, or would injuriously affect the inte.rest of the absent parties. In the class of cases just mentioned. at common law, the plaintiff by his judgment against one of his joint debtors gets the relief he is entitled to. and no injustice is done to that debtor, because he is only made to perform an obligation which he was legally bound to perfQrm before. The absent joint obligors are not injured because their rights are in no sense affected, and they remain liable to contribution to their obligor, who may pay the judgment by suit, as they would have been, had he paid it without suit." v.33F.no.4-14
These being the legal principles governing of cases specified in the authorities cited, the question is, does the case in hand fall within the rule which precludes the cqurUrom administering the relief sought 1>Y the bill, against the defenda.qts,-if the right to such relief shall be established,-their co-exeoutor not, being a party to the suit? In other words, is Lee an indispensable party, who(;le legal presence in the suit is an absolute necessity, witpout which the court cannot proceed? If he were a citizen of this district, having joined in the proceedings for the pr09ate of the will and assuDled ,the trust, and acted in conjunctiouwith his co-executor and there would be no doubt that his joinQer as"a. co-defendant would be necessary. "The general rule is, thl;tt if tlleI;e are several executors they must all be sued, person ,cannot, either as althougb "ome of them be infants,. creditor or residuary legatee,bring a bill in equity against one executor only. But it is only necessary to sue so many of: the execut<lTs or administratQrs have acted. "If this it;! sufficient in law, how much more in a. <:ourt ofequity?,11 3 Williams, top p. 2125, 2126. Also see page 20,51, and cases cited illnote'i 'f In"Schower, Ex'rs,§,4'o1 I iUa Elaid that "executors, unless the will und,er w,lJicb, they act direcb3 are to he treated in law as one and ,the san:Je individualjand,consequently, whatever eaqh one does is taken to tAA act of both or all, authority being joint and entire. Hence, if 0tleof them dies, the fiduciary interest, beingjoint and entire, a will each is will vest in the survivor. Of two or more executors entitled to receive any part of the assets,. and to collect' any debts. In the settl!IDll:lnt pian estate by co-executors; the exclusive custQdy and assets vests in U9, one of their number., ,Each executor: has a right of ,possessioll to the perspnal property, and a right of access to the, paperE;. ; The act of one in pOssessing himself of assets is the act()f all, so as to entitle them to a interes,t in possession, and a joint right of action, if they are taken, away." In Barb. Parties, 483-486, it is said: ,' there ar,e several executors '" '" they are' esteemed put ,one person in repr.esenting the estate of t11e testator. and it ia not ,allowable to sue any Iiumbet: less, than all; unless, perhaps. for special reasons shown, the characterof the'relief sought makes it' unnecessary to join them all.. It may be said:R!!, a genernl rule that whenever the personal assets oithe deceased' iri the handso! his executors or adminlsttators,: or belonging to them, 'maybe -affected by the deeree, they should be made parties. ... ,!" '" Thoughco-executors who have administered jointlyartl ultimately liable fqr each other's acts, ,yet they mmt'both be parties t6, a bill/or an account of the estate:" _ In Gould, Pl.'c. 4, § 73, it is stated: , "Where, a right of action exists' against co-executors, as, such, all' those of them who have acted in the execution, of the trmt must, be joined ill the action; ,but those who have not administered may be omitted. For, tho'ugh the liability of co-executors is joint, yet a stranger or creditor is presumed not know who or how many there ar'e, except from their acts; and is therefote not bound to take notice of any others'than those who administer." , also, 1 Chit. 'Pl. 52., See, also, sections 63, 65, of
In Rine1uirt'tiEx'rs v. Rineltart,15N. J. Eq. 44, it Wfd held that in suits brought by executors the rule in equity is that only the executors who have proved the will must· be parties. An executor who has renounced need not be joined: In the opinion the chancellor says: "At law the rule is that all the executors named in the will must be joined as plaintiffs;" citing HeR,8loe'8 Ca8e, 5 Coke, 64; Huntv. Kearney, 3 N. J. Law. 292; Executor of Hill v. Smalley, 25 N. J. Law, 374. "The rule in equity is that all the executors who proved the will must be parties; none others need be so;" citing Davies v. Williams, 1 Sim. 5; Kilby v. Sianton, 2 Younge &J.77; Oramerv. Morton, 2 Moll. 108; 2 Williams, Ex'rs. 1626; Thompson v. Graham, 1 Paige. 384j 1 Daniell, Ch. 273; Marsh'8 Ex'rs v. Oliver's E.t'rs, 14 N. J. Eq. 262. In Rubber 00. v. Goodyear,9 Wall. 788, it was held that though there are three executors appointed by the will, one may maintain a suit, if two of them have not qualified. In the opinion, it is said: "The evidence in the record shows that the testator was domiciled and had property in the city Of New York. This gave the surrogate there jurisdiction to take the probate of the will, and to issue letters testamentary. Charles Goodyear, Jr., alone proved the will, and received such letters. The other persons named as co-executors, have taken no step in that direction. They have never at any time assumed to do any act, or claimed any right,by virtue of their nomination in the will.". For these reasons, the.courtheld the snit well brought by the single executor. The case of Blake v. McKim, 103 U. S. 336, follows thlHulelaid down on the subjootiil.the authorities referred to. In that case, A., a citizen Of Massachusetts, commenced a suit .in a court in that state against the executors of B., two of whom were citizens of Massachusetts, and pnea' citizen of New York, to enforce a liability of the testator. The executors all appeared and filed a joint answer. It was held that the controversy not being divisible, nor wholly between. citizens of ciifferent states,-the plaintiff and two!of .the defendants being citizens of the same state,-could not berenioved into the circuit court of the United States. Mr.·Justice HARLAN, speaking for .the court, observes in the opinion that "the executors of Blake, each of them having qualified and acted in the execution of the trust, were all indispensable parties to the suit, [oiting authorities.] They all appeared and submitted to the jurisdiction of the court." On the argument it was suggested by counsel that the remark ofthe court in the case referred to, that all the executors were indispensable parties to thesliit, was obiter, and did not express the law. But, whether obiter or not, as we have seen from the authorities cited, the observation of Mr. JustiQe HARLAN exactly expresses the general rule on the subject. Nor is this statement of the rule in Blake v.McKim inconsistent, as is contended 'by counsel for complaInant, with anything decided in Stacy v. Thrasher, 6 How. 44, and Hill v. Tucker, 13 How. 45S; 3$ will be seen upon a careful examination of those cases. . In the argumentofthis q:l:\estion,. numerous decisions of the courts in this country,' and some in England, were brought to the attention of the
court, which it was contended fully support complainant's right to proceed with the suit in the absence of the executor Lee, and without making him a party thereto. Tappan v. Bruen, 5 Mass. 193; Call v. Hagger, 8 Mass. 423; Parker v. Danforth, 16 Mass. 299; Moore's Ex'rs v. Paul, 2 Bibb, 330; Bledsoe v. Huddleston, 5 Yerg. 295; Beach v. Baldwin, 9 Conn. 476; Negley v. Gard, 20 Ohio, 310; U. s.. v. Backus, 6 McLean, 443; Brotten v. Bateman; 2 Dev. Eq. 115; Clement's Adm'r v. Kellogg, 1 Ala. 330; Footman v. Executor8 of John Pray, 1 R. M. Charlt. 291; Shorter v. Hargr(Y/)e, 11 Ga. 658; Clifton's Adm'r v. Exectttor8 of Haig, 4 Desaus. Eq.343; Rouse v. Etherington, 1 Salk. 312; Shipton v. Rawlins, 4 Hare, 619; Fu88ell v. Elwin, 7 Hare, 29; Hall v. Austin, 2 Colly. 570; Perry v. Knott, 5 Beav. 293; and Kellaway v. Johnson, Id. 319. It would extend this opinion to an unreasonable length, to review these cases in detail. It must suffice to say of them, that they do not sustain the complainant's contention. Some of them were cases at law, in which all the obligors in a joint contract were made defendants, part of them not being served with process, and in which judgment was entered against those served; thus enforcing a rule now incorporated in many of the statutes of the states. Others were cases where the distributees under a will maintained suits against one of two executors for money had and received, it appearing that the money sought to be recovered had not come into the hands or under the control of the co-executor. Still others were suits in equity brought by legatees against the executor of a deceased executor, and where the question arose as to the necessity of joining a surviving co-executor of the first testator as a defendant in the suit. In some of the cases it appeared that the executor sought to be charged had taken upon himself the sole execution of the will, and that his co-executor, because of non-residence, or absence from the state, or other cause, had not participated in the administration of the estate. In one of the cases, the bill sought a decree for so much of an estate as had come into the hands exclusively of one of the administrators, and which had been improperly managed and wasted by him; and it may be said of almost all the cases in equity cited that they presented pecUliar facts which controlled the deoisions of the courts. All of them, with a single exception to be presently noticed, are distinguishable in their facts and in principle from the case at bar. Of the English cases cited in the brief of counsel, Rouse v. Etherington, 1 Salk. 312, was an action against two executors. A capias issued against both, which as to one, was returned non est inventus, and the other appeared, and judgment was given against both. HOLT, C. J.) said: "If a suit be brought against several executors, and one appear and the other make default upon the grand distress, the court may proceed against him that appeal's; and, if the plaintiff recover, jUdgment shall be against all the executors for the goods of the testator. If there be several executors defendants, and a capias is returned as to one, and a non est inventus as to the .test, the plaintiff shall proceed against him that appears, and shall have jUdgment against all; for the default upon the capias is the same as upon the grll,nd distress."
Here both the executors were made defendants in the suit. And the case only shows that at that early day the same rule was in force as in the case of Howe'8 Ex'r8 v.Paul, 8tlpra, and other cases that have been noticed. . It is not perceived that the other cases cited from the English courts, bear upon the question here under consideration, since they involved only the construction, and application to certain classes of cases, of what is known in the English practice as the thirty-second order of August, 1841, which provided that "in all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concer}ling such demand all the persons liable thereto, but the plaintiff may proceed against one or more of the persons severally liable." Williams v. Sims, 8 Port. (Ala.) 579, seems to sustain the view taken by counsel for complainant in the case at bar. That was a suit against executors on a promissory note made by their testator and another. The executors pleaded in abatement that James Cavat, together with them, were appointed by their testator executors of his last will and testamentj that he was still living, and that they all. duly proved the testator's will, and took upon themselves the burden of administration. The plaintiffs replied to the plea that Cavat, the executor, was, at the commencement of the suit,and still continued to be, a resident of a,nother state, namely, the state of Mississippi. It was said by the court in its opinion, that "at common law, all the executors named in a will were required to join in prosecuting suits, and in actions against executors they might be made defendantsj but in the last case all who proved the will were required to be joined. The non-amenability of a co-executor to the jurisdiction of an English <;ourt, affords no legal excuse for the omission to join him as a party defendant, if he be living, and has taken upon himself to execute the willj but the American cases do not support the English rule. The non-residence of a co-executor is sufficient to relieve the plaintiff from the necessity of joining him in an action with his co-executors." After discussing th3 rule of law,on the subject as it prevailed in England, the court further observed: "Now it will follow from what we have said that the non-amenability of a co-executor to the jurisdiction of an Englisb court, affords no legal excuse for the omission to join him as a party defendant to an action, if be be living, and bas taken upon himself to execute tbe will. There tbe law authorizes the plaintiff, though he may be unable to effect the personal service of a writ by meaus of what is there called process of outlawry, to prosecute his suit to judgment. Our law, in this respect, ,as it regards executors, is defective in not providing a mode of proceeding, where a co-executor resides without tl.3 state, since it is clear that our statutes with reference to joint obligors, e.c., do not embrace joint executors who jointly represent the interests committed to them by the will. And the question now presented for our consideration is, do the American decisions sustain the English r'ule, and should we not, in view of the deficiency of our laws, be inclined to depart from it." The court then cites the two cases of Tappan v. Bruen, 5 Mass. 195, and Beach v. Baldwin, 9 437, and observed that these cases fur-
nis:b authoritjfor holding that the non-residence of the eX!ecutbr relie'ves the plaintiff from the necessity of joining him as a party. to the action and thought the fule, as,modified in ,Massachusetts and Connecticut, far better calculated to promote the ends of justice than the·l'Il!I;le which prevailed in England.. A.nd upon the authority of those two cases, it was held that the non-residence of an executor excused the plaintiff from joining him as a party defendant with the co-executors, who were within the jurisdiction of the court. So far as the research.of:counsel in the case at bar has disclosed the law ,on the subject, I think it must be said of this Alabama case, that it stands alone in holding that the residence of one of severalexecutors outside, the jurisdiction of the court in which a suit is brought against the other .executors, involving the liability of the estate which all represent, is a legaland sufficient excuse for omitting to join such absent executor as a party defendant iri·the action, if he be living, and has taken upon ' to execute the will. himself, jointly with Reference to Tappan v.Bruen, and Beach v. Baldwin, supraj it seems to me, clearly shows that they do not sustain such a rUling. Tappurv v. Bruen, was a case not by or against executors or administrators, but where several defendants were sued at law, on joint contract. Some of them were out of the jurisdiction of the commonwealth, having no usual place of abode within the state at which a summons Could be left. It . :was held that the plaintiff might cause his writ to:be served ·on those within the state, and prooeed only against them, for a breach of contract by all. .Here" a1J.the parties to the contract were made dejenda,nts, but there was service only on a part, and the .court simply enforced the rule now· incorporated in many of the statutes of the states, which permits a suit against several parties, who are all made defendants of'record, but in which· some· are served and some not, to proceed. to judgment against those served. ,The case belongs to the oIuss of suits at ly.w, commented on by Mr, Justice·· MILLER in Barney v. Baltimore City, 8upra, as· c0ming . within the purview of the act of congress of 1839, now section 737, Rev.. St., and in which the suit may be prosecuted to judgment against any one of several joint obligors, in the jurisdiction where he may be found. ' It was said that the recogJ;lized extended also to executors. and, administrators; but this 1'emarkreferred only to cases like that before the court, where all the parties ohargeablewith liability,' having been ma.de defendants in the ,suit, and process having been served onlyon such al:! were within the jurisdiction of the court, judgment might g? ;tgainst those so served.. Beach v. Baldwin, was not a case in which the .principle laid. qown in Williams v, SirrilJ, was involved. The caSe was this: In anaetion on a promissory note payable to A. as executor of N., A. declared as executor; and in that capacityLdemanded damages. R, the defendant,pleaded, in abatement that there were certaitf utors with !":90 ought to have joined. in the suit..· The alleged that N. by·his last will appointed C., D., and E., with A.; his executors, whdaccepted the trust, and proved the will', and were still living. It was held thaUhe'pleawas defectivebeeause it did not show where the
CONOLJ.Y fl. WELLS;
plaintiff's co-executol'S resided, nor that the persons alleged to be co-executors wel'e such at the commencement of the suit. The case involved a mere question ofthe sufficiency of the plea; and it does not follow frOlh the ruling'made that, if the co-executors of A.were acting with him in . the execution of a joint trust as executors, their presence as co-plaintiffs in the suit could be propei'lydispensed with. On the whole, it seems clear that Williams v. Sims is an exceptional case, unsupported by Tappan v .. Bruen, and Beach. v. Baldwin, and ought not to pTevail against what appeal's to he the great weight of authority in determining the question as it: arises here. . Wheeler'v. Bolton,. 54 Cal. ·302, was a case where the facts may be said to have fully sustained the ruling made, which was, that if one of two executors. is absent from the state the other can administer; and in such case·. where only one· has acted. and the decree ofdi8tribution refers to him alone, .the absent executor ianot a necessary party t() an action against the other, by a distributee, to his share of the estate... That was a. suit one executor to recover the distributive' share which the defend. ant:' was by decree of probate court required to deliver to the plaintiff. The complaint was demurred to on thegroundthatan absent co-executor . was not made a defendant in the suit. In the opinion of the court it .was said: . . "It is Db objection that .Adams was not j9ined. The 'allegation is, tliat he left the state in 1855, and has not since returned, and that the probate court adj udgedtlle defendant to 1be. in possession. .If one tif two executors be absent, from the state the other can administ8r, 'and his acCQunts can be settled, and a distlibution be had. The presence of Adams was not necessary;· there is nQ,all!lgation that he was directed to deliver the property." 'The complaint in theca-se showed that Adams, the co-executor, had been absent 20 years,and that 'the defendant, as the acting executor, had 'rendered his final account And it further appeared that the probatecoutt had adjudged that he came into possession of the estate as executor,' and court had made a decree that he deliver the distributive share which was sought to· be recovered in the suit. From a careful examination of the caSes it seems quite apparent that the:authorities do not sustain the proposition that,becauBeofthe absence or non-residence of one'of several. executors, all actively participating in the execution of the trust, a suit like the present one may proceed a:gainstthe resident executors alone. Take the case at bar. The bill on its fab'eshows that the three executors united in the probate of the will in Wisconsin; that all' assumed the trusts imposed upon thelll by the wilFand'by virtue of their appointment; arid that all have ever since "acted· 8;stepresentatives ofthe estate,-the two defendants being residents ofWisc()nsin, and their co-executor Lee being a resident of Illinois. The bil1 caBs for an accounting. It seeks to enforce something in the nature of a trust growing out of quasi partnership relations between the comthe testator. The Claim is one that affects the estate in itS entirety. The bill seeks to establish a demand against an estate which in law is in the joint possession of all the executors, arid who are an act-
ively engaged in administering that estate. The interest and authority .of all are joint and entire. They have a joint possessory and trust interest in the assets of the estate. The interest of one executor is inseparable that of the others. One and all have the right to contest the complainant's demand. The litigation involves a fund which is legally vested in each executor, arid each is a necessary party to an accounting which affects that fund. And therefore it would seerp. that no decree could be entered, such as the complainant prays for in his bill, which would not affectthe representative rights and interests of all the executors. In respect to the question under consideration, the case is not aided by the provision of the state (Rev. St. Wis. § 3254,) which det'Qat "in actions or proceedings (J,gainst several e;cecutors or administrators they shall all be considered. ,as one person representing their testator or intestate, and those who are first served with process, or who shall first appear, shall answer the plaintiff. Judgment sha:u be rendered asjf all had appeared; and in case where, the execution may be.issued against the property of the testator or intestate, it may issue against all in like as if all had appeared. But this section plaintitfof the right to bring into court all the executors or administratorsm;qinst whom the actiO'(/- is brought." .;Obviously, this statutory provision applies to an action in which all the executors are made parties thereto, and prescribes a cours,e of procedure in a case where some are served with process and others are not. " It was suggested on. the argument, t,hat to make such a ruling as would put it out of the power of the complainant to prosecute his suit because unable to proceed against the non-resident executor, would enable a testator at any time to defeat the jurisdiction of the federal conrt in a controversy in\:'olving the estate by designating a non-resident with a resident executor. 'fo this it seems a sufficient answer that the federal court is one of limited jurisdiction under the constit,ution and laws,and can only take cognizance of such cases as are clearly within its jurisdiction; while the courts of probate of the state are invested with complete authority and jurisdiction over estates and executors, anp. claims against estates may there be adju,dicated and enforced under statutory modes of procedure which are ample. If. the executor be a non-resident, and fails to respond to the orde:r:sof the probate court of the state which appointed him, the penalty of removal may be summarily enforced against him. Apology for tQe length of this opinion may be found in the fact that the amount involved is large, and that the probable result of the conclusion reached, is that, if the non-resident executor could be made a party defenqant in the suit, as he and the complainant are both citizens of Illinois, the court, by reason of citizenship of the parties, would have no jurisdiction ofJhe case. The court has therefore felt it to be its duty to determine tQe question presented after the most deliberate and thorough consideration. The demurrer to the bill must be sustained, in which conclusion I am authorized to say, the Circuit judge, who sat with the district judge at the hearing, concurs.
ASPINWALL. December 18, 1887.)
(Oircuit Oourt, D. Massathusetts.
BANKS AND BANKING-INCREASE OF SToC]!:-Lu.BILITY.
Defendant subscribed for new stock in the reorganization of a bank, and reo ceived a certificate on the basis of a total subscription of $500,000. The actual increase was $461,3W. He protested against the same, and refused to vote on the stock, but retained his certificate until the bank went into the hands of a receiver, several months later. Held, that he was liable to the receiver on his subscriptioIl, and it was too late to claim that increase as to him was invalid. .
At Law. Peter Butler, receiver of the Pacific National Bank, plaintiff, sued William Aspinwall, defendant, for a subscription to an inprease of the capital stock of the bank. Judgment for the plaintiff. A. A. Ranney, for plaintiff. B. N. Johmon and T. H. Talbot, for defendant. COLT, J. This is an action at law heard by the court, jury trial having been waived. It is one of the numerous suits brought by the receiver of the Pacific National Bank against the stockholders, under section 5151, Rev. Bt. The facts in this case differ somewhat from those before the court in Delano v. Butler, 118 U. S. 634,7 Sup. Ct. Rep. 39, and therefore the defendant contends that the reasoning of the court in that case is inapplicable here. The main ground on which the court placed its decision in the Delano Oase was that the subsequent conduct of the stockholder, especially in the payment of the assessment of 100 per cent. on the old as well as the new stock, for the purpose of allowing the bank to resume business, amounted to a ratification of the validity 'of the new stock. In the present case, the defendant subscribed.for the new stock on the proposed increase of $500,000, and received his certificate; but at the subsequent meeting of the stockholders in January, 1881, when he is .quite positive, but not certain, he learned for the first time that the actual increase of stock was $461,300, instead of $500,000, he protested by himself, or through counsel, against the validity of the new stock. Upon the old stock, which he held as guardian or trustee, he' voted against the assessmtint; upon the new stock, which was subscribed for in his own name, he refused to vote at all. His position therefore is that he subscribed to a proposed increase of stock which was never carried out, and that he has never, by implication or waiver, consented to the increase as finally approved. While the supreme court in Delano v. Butler decide the case on the. ground of the subsequent conduct of the stockholder, amounting to a ratification of the act of the association and the comptroller of the currency in fixing the amount of the increase stock at a less sum, yet the court also say: "It will be observed that. without waiting to see what the future action of the association and the comptroller of the currency might be on the question