
    NECESSARY PARTIES TO AN ACTION TO DETERMINE A TRUST.
    Common Pleas Court of Montgomery County.
    Anne E. Parrott v. Emily Parrott.
    Decided, July 2, 1918.
    
      Trusts — Parties Necessary to Determine Disposition of Trust Property — . Application of the Doctrine of Representation to Persons HoliMng Contingent Interests Only.
    
    In an action to construe a will by determining rights growing out of a trust, persons holding contingent interests thereunder need not be made parties individually where they are in court by representation.
   Snediker, J.

This action was originally brought by the plaintiff for the purpose of selling what she claims is entailed property, under the will of Charles Parrott, deceased.

Upon the filing of the petition Frederick N. Sinks, who is the guardian of Mabel Parrott, who is a surviving child of Charles Parrott, by leave of court was made a party defendant, and filed his answer. Among other things he recites that after the death of Charles Parrott, George W. Sinks was appointed executor of the last will and testament, and that on or about the first day of April, 1914, he (George W. Sinks) filed in the Court of Common Pleas of Franklin County, Ohio, his petition against Anne E. Parrott, Mabel Parrott and George W. Sinks, trustee under the will of Charles Parrott; that in that suit he set forth the last will and testament and codicil of Charles Parrott, deceased, and asked a construction of the court on Item 4 of the will and Item I of the codicil; that Anne E. Parrott and Mabel Parrott, then surviving their sister, Elizabeth Parrott, filed their answers and cross-petitions, wherein they alleged that the first item of the codicil of the will was null and void, and prayed the court to so find; and that George "W. Sinks as trustee filed his answer and cross-petition and claimed that Item I of the codicil of Parrott’s will was a valid and subsisting provision of said codicil, and also claimed that, by this item, there was created a trust fund for the use and benefit of the daughters of Charles Parrott — -that is, Anne E. Parrott and Mabel Parrott, and as trustee he denied that there was any question of law as to the validity of the trust created by Item I of the codicil, or as to the validity of Item 4 of the will.

Thereafter the court upon the pleadings, evidence and arguments of counsel and on consideration of the issues involved, •found that by his last will and testament Charles Parrott conveyed the fee simple title of all of the property of which he died seized or possessed, real, personal or mixed, to his three daughters, Elizabeth Parrott, Mabel Parrott and Anne E. Parrott, who survived the decedent, and that after the death of said decedent, Elizabeth Parrott died intestate, without heirs of her body, and that thereupon Anne E. Parrott and Mabel Parrott became vested of all of the right, title and interest of Elizabeth Parrott in and to all of the property of the decedent. The court further found that the provisions of Item I of the codicil of the last will and testament of Charles Parrott are null and void and of no effect in law.

To this answer there has been filed by the plaintiff a general demurrer, and this demurrer has been presented to the court upon the theory that at the time of the rendition of its finding and decree the Court of Common Pleas of Franklin County had not before it all the necessary parties and on this account such finding and decree ought not to be considered as finally determining the rights of the plaintiff.

The proceeding in the Court of Common Pleas of Franklin County was brought by the executor under favor of Section 10857 of the General Code. This section reads:

“An executor * * * may sustain an action in the court of common pleas against the creditors, legatees, distributees or other parties asking the direction or the judgment of the court in any matter respecting the trust estate or property to be administered, and the rights of the parties in interest in the manner and as fully as formerly was entertained in courts of equity. ’ ’

Such an action ,as is here provided for is not for the benefit of any particular person. “It is in effect an action against all-persons to be affected by the construction given to the will. The executor says, “I am in doubt about your rights, and I call you into court that you may defend them, or have an opportunity to do so.” And the construction given to the will by the court concerns the execution of the trust with reference to which the executor ,asks the court’s advice. In the 17 Ga., at pages 223-224, the court say:

“It is a well known general rule, that all persons materially interested in the subject, should be made parties to the bill, so that the court may be enabled to do complete justice, by deciding upon and settling the rights of all interested, and future litigation may be prevented. Where a suit, by a trustee, is on account of ,any matter which concerns the execution of the trust, then the case falls within this general rule; and unless some reason of necessity forbids it, the cestui que trust must be made a party. In such case, the cestui que trust has an immediate and material interest in the subject-matter of the suit, and it is proper he should be made a party.”

Did this executor by his proceeding, as described in his answer herein filed, bring before the court sufficient parties to entitle the court to determine respecting the trust property, or the property to be administered, and the rights of the parties in interest

It will be observed that this section is intended to carry into the code the former proceeding had in equity for the same purpose, and in a construction of the rights of the executor and of any parties in interest we ought to be governed as nearly as may be by the rules laid down by the courts of equity with respect thereto.

As heretofore indicated, generally speaking, under the code all parties in interest should be brought before the court when it is asked to determine as to their rights. But they may be so brought into court in two ways: individually, or through representation.

As said in the 15 Encyclopedia of Pleading and Practice, at page 627:

“Another and perhaps the most important of all the excep-tions to the general rule under consideration comprises the group of cases which have given rise to what is known as the doctrine of representation.
‘ ‘ This doctrine, tersely stated, is to the effect that where it appears that a particular party, though not before the court in person, is so far represented by others who are before the court that his interests receive actual and efficient protection, his actual joinder may be dispensed with, and the decree may be held to be binding upon him.”

With respect to matters in trust, Story, in his “Commentaries” on “Equity Pleadings,” at Section 150, says:

“Indeed, it may be laid down as a general rule, that, where any persons -are made trustees for the payment of debts and legacies, they may sustain a suit, either as plaintiffs or as defendants, without bringing before the court the creditors or legatees, for whom they are trustees, which in many cases would ■be impossible. In such cases the trustees, like executors, are supposed to represent the interests of all persons, creditors, or legatees; and, indeed, the impracticability of making the other persons parties, would seem of itself a sufficient ground for dispensing with them.”

In the 8 Ohio Reports, at page 498, the syllabus reads:

“A conveyance in trust may be canceled by a decree in equity so as to bind the interests of all, though the cestui que trusts be not made defendants.”

It is laid down in Mitf. Pl. (3d Ed.), 142, that—

“Trustees of real estate for the payment of debts or legacies may sustain a suit, either as plaintiffs or defendants, without bringing before the court the creditors or legatees for whom they are trustees, and the rights of the creditors or legatees will be bound by the decision of the court against the trustees. ’ ’

In 2 McLean’s U. S. Reports, pages 267-305, the court say:

“That the suit may be maintained in some cases in the name of the trustee, without naming the ceétui que trust, is admitted; but this can not be done where the object of the suit is to divest the vested right of the cestui que trust.”

The objection made by counsel supporting the demurrer, to the proceeding in the Franklin County Court of Common Pleas, is that others than Anne and Mabel, named in the first item of the codicil, were not also made defendants.

A reading of this item will at once reveal that the interest of such others was contingent and not vested, and that they, therefore, do not come within the prohibition of the rule last quoted, as laid down by the Supreme Court of the United States.

As said by the Supreme Court of Illinois, 115 Ill., at page 644:

“The title is in the trustees, and the duty is imposed upon them to protect ,and preserve this interest for whomsoever shall be ultimately entitled to it. They are parties to the suit, and they stand for and represent, in this litigation, the ownership ultimately entitled to this fund, and such ownership is bound by their representation. ’ ’

In that ease, “the testator devised $2,00|0 to his executors in trust to invest the same and pay his daughter the interest or profits during her life, and after her death to pay such interest or profits to her child or 'children until they became of age, and at their majority, to pay to them the principal sum. If his daughter should die leaving no issue, the principal was to be added to his other estate, which he devised to two religious societies. Held: ‘ ‘ That her only, child was not a necessary party. ’ ’

In 1 Sehoales & Lefroy’s Reports, the chancellor in passing on the case used this language:

“It has been repeatedly determined that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remaindermen are barred; this is now considered the settled rule of courts of equity, and of necessity.”

See, also, Story’s Eq. Plead., Section 145.

We may conclude, therefore, that under the rules of equity which we are required to apply to the right of the court to proceed in the Franklin county case, there was no obligation of the plaintiff to attempt, or of the court to require, the making of any other defendants than the trustee and the first tenants in tail, the remaindermen after such first tenants in tail having only a contingent interest the likelihood of the vesting of which was remote.

If the Franklin county court did have before it all the necessary parties, and by reason thereof had the right to proceed to a determination of the questions raised by the petition of the plaintiff in that court, then such determination is binding upon us, and the demurrer to the answer of Frederick N. Sinks should be overruled, which is accordingly done.  