
    Elsen et al., Appellees, v. Hughes et al., Appellants.
    (No. 7103
    Decided June 20, 1949.)
    
      Messrs. Hoover, Beall-, Whitman & Eichel, for appellees.
    
      Messrs. Vest é Vest and Messrs. Barnhorn S Barn-horn, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment quieting the plaintiffs’ title to certain real estate and removing the cloud thereon resulting from the assertion of title thereto by defendants.

The judgment is affirmed for the following reasons:

(1) The plaintiffs and their predecessors in title have been in open, uninterrupted possession of this real estate under color and claim of absolute title in fee simple for more than 40 years and, as a result, the enforcement of whatever title the defendants might have had is barred by the statute of limitations.

(2) It is conceded that Hester P. Waterhouse was the owner of the title to this real estate at the time of her death. The plaintiffs assert title by mesne conveyances from one of her daughters. After the death of Mary P. Waterhouse, a paper writing purporting to be her last will was admitted to probate. Thereafter, an action was duly instituted to contest the paper writing as her will, and, in due course, a judgment was entered declaring the paper writing not to be her last will. In this paper writing, Hester P. Waterhouse purported to give to each of her three daughters a one-eighth share of her estate, but placed such shares in the hands of a trustee who was to pay the net income to each of the daughters during the life of her respective husband, and, should any daughter survive her husband, her one-eighth would be her absolute property. By such purported will, if any daughter should not survive her husband and leave no issue, the daughter was given power to dispose by will of the one-eighth part and the other seven parts were to go to her surviving brothers and sisters and their issue per stirpes. The defendants are grandchildren of Hester P. Waterhouse, and, if the paper writing is, as to them, her last will, such will would have conferred title upon the named trustee in trust for the daughters during the lives of their respective husbands, and then in trust for the defendants during their minority.

The defendants herein were not named as defendants in the action to contest the will. At that time they were under 21 years of age. The trustee named in the paper writing qualified as trustee of two shares, the court appointed a trustee of the other shares, and both trustees were parties tp the will contest.

The contention of the defendants is that the failure to join them as defendants in the will contest renders the judgment setting aside the will void, and that, by reason thereof, they now take under said probated will, notwithstanding the judgment declaring it not to be the last will.

The contention of the plaintiffs is that the trustees, who were parties to the will contest, were the owners of the legal title of the shares of which the daughters were the immediate beneficiaries; that the defendants were the remote and contingent beneficiaries; that the trustee was the only necessary party to represent such interest in the will contest; and that it was not necessary to join the beneficiaries, immediate or remote, of such trust.

It is expressly provided by Section 11244, General Code, that a trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted. We find no statutory provision as to defending actions involving a trust estate, but it seems to us that the reason for the rule authorizing the trustee to prosecute an action applies with equal force to defending actions. And that seems to be the rule in the absence of any statute.

In 1 Perry on Trusts (7 Ed.), 567, 568, the author says:

“It is the duty of the trustee to defend and protect the title to the trust estate; and, as the legal title is in him, he alone can sue and be sued in a court of law, the cestui que trust, the absolute owner of the estate in equity, is regarded in law as a stranger. The rule is carried to the extent that the grantee of the trustee can alone maintain an action upon the legal title, although the conveyance to him was a breach of the trust. To protect himself, the trustee must defend the title if he is sued. ’ ’

Although it may be that the defendants might have been proper parties to the will contest, they were not necessary parties, and their absence did not prevent the court from entertaining the will contest.

The judgment setting aside the will was within the jurisdiction of the court and cannot be collaterally attacked. It may be, also, that the trustee did not properly defend the action. The remedy of the cestuis que trustent for any such dereliction would be against the trustee, and not by attacking the title of transferees who took title in reliance upon the validity of the judgment.

Judgment affirmed.

Ross, P. .1., Hildebrawt and Matthews, JJ., concur.  