
    Hayden's Executors, Plaintiffs in Error, vs. Marmaduke et al., Defendants in Error.
    X. Any trustee having reasonable doubt as to the proper disposition of funds in his hands has a right, for his own safety, to apply to a court of equity for directions, making the persons interested parties to the proceeding.
    2. Under the code, it is improper to dismiss a suit because all are not made parties who should have been, the court having power to order others interested to be made parties.
    
      Error to Marion Circuit Court.
    
    
      «Anderson and Lipscomb, for plaintiffs in error.
    
      P. R. Hayden, Pratt <$• Redd, for defendants in error.
   Gamble, Judge,

delivered the opinion of the court.

In this case, executors who have in their hands a fund claimed by different persons, come into court asking the direction of the court as to the disposition to be made of it, in order that they may be protected by the decree of the court. The fund itself has been produced by means not in the contemplation of the testator. The court, on its motion, dismissed the case upon the hearing, without any cause appearing for such proceeding.

If the reason for such dismissal was the want of jurisdiction, the reason was fallacious. Any trustee placed in circumstances in which he may have reasonable doubt as to the proper disposition of the funds in his hands, has a right, for his own safety, to apply to a court of equity for directions, making the persons interested parties to the proceeding. Talbot v. Earl of Radnor, 3 Mylne & Keen, 252. Curtis v. Candler, 6 Mad. 123. Lewin on Trusts, 318.

If the case was dismissed because the Circuit Court thought there were not all the parties in the suit who should have been brought in, this was improper, because, under section 10, article 3 of the code, the court had the power to order that any other persons necessary to be made parties, in order to a complete determination of the controversy, should be made parties.

The judgment of the Circuit Court is reversed, and the cause remanded, to be proceeded with.  