
    John Dandridge, Appellant vs. Martha Washington’s Executors, Appellees.
    The testatrix directed that the interest of certain -funds should be applied “ to the proper education’’ pf certain persons her nephews, “ so that they may be severally fitted and accomplished in some useful trafie and gave to each of thein “ jvho should live to finish his education or reach the age of twenty-one years of age, one hundred' pounds- to sel him up in his trade.” She also gave the whole of her estates of -every description, to.be equally divided among certain persons, who should be living when the interest applicable to the education oí-her nephews should cease to be required, they being some of the persons among' whom i'ne same was to be divider]; and she directed that-so long as any one of the. three nephews who should live, had not finished his education, or arrived at the age Qf twenty.-oúo 'yéars, the division of the property so-devised and given,-should be deferred, and no longer. •
    Abill was filed, by the appellant, one Of the nephews of the testatrix, chargingthat •the executors had not paid the several sums,of money bequeathed to him, and praying that they may be decreed to pay the, same. ' No other persons were made parties to the proceeding but the executors;, and after a report of the master, the cause came on to a hearing, and the circuit court dismissed the bill for want of proper parties. The defendants at the argument insisted that not-only the two. nephews, whose education .was provided for by the • testatrix, should have been made parlies, but also all the’ residuary legatees.
    So far as the hill sought to obtain such a portion of the fund as was by a fair construction of the will applicable to the -education of the nephews of the testatrix, they alone were required to-be parties, and the court reversed.the decree of fiáe circuit court which dismissed the bilí-, for the purpose of enabling the com- . plainant to make the other two nephews of the- testatrix parlies.
    The-Court did not consider it necessary to make the residuary legatee's parties, in a proceeding the sole object of which was to ascertain and distribute,among the nephews of the testatrix, the amount to which they were .entitled" for the-expenses of education. The residuary legatees have undoubtedly an interest in reducing every demand on the estate. Whatever- remains, sinks into the residuum ; and that residuum is -diminished as well by the élaims of creditors and specific-legatees, as by this. In all such cases the-executors represent the residuary legatees, and guard their -interests. It is a pari of that duty which re-, quires them to protect the interests of the estate. In such suits, the residuary legatees are never made parties. To require it would be an intolerable burden, on thoso who have claims on an estate in the hands of executors. [377]
    The Court do not think that in ascertaining the.amount applicable to the education of the appellant, one of the learned professions may be takenas the standard, with as much propriety as the trade or art of a mechanic. The distinction between a profession and a trade is well understood; and they are seldom, if ever, confounded with each other in ordinary language. If the testatrix had contemplated what in the common intercourse of society is denominated a profession ; she would scarcely have -used a term, which -is1 generally received as denoting a mechanical art.
    But the bequest is not confined to the expense of acquiring the trade, so as. to be enabled to exercise it in the common .way. The testatrix intendéd such an education as would fit her relations to hold a distinguished place in that line of life'in which she designed them to move. -The sum allowed for the object ought to be liberal, such as would accomplish it, if the fund from which it ■ was to be drawn would permit it. [377]
    APPEAL from the circuit court of the county of Alexandria,. In the district of Columbia.
    In the circuit court, the appellant filed his bill, against George W. Curtis and Thomas Peter, as executors of Mrs Martha Washing ton., late of Mount Vernon; claiming the payment of a. sum of money düe to him, under the bequests in. the will of the testatrix, for the expenses of his education; and álso for a distributive share of the residuary estate of the deceased, in the hands of the executors, acting as trustees undér the will. The facts of the case are stated at large in the opinion of the court.
    The circuit court dismissed the bill for want of parties; apd the ease was argued in this Court for the appellant by Mr Swann and Mr Lear; and by Mr Taylor for the appellees.
    For the .appellant, it was contended; that the circuit court-erred iif dismissing the bill, and that this Court should'corceet the -decree, and direct the payment of so much of the fund in the hands Of the executors and trustees,, as by the terms of the will was to be appropriated to tlie educatiop of the appellant.
    The Counsel, for thei’appeiiant admitted, that the general rule in Chancery» is, that all who are interested in the decree shall be made parties to the proceedings; but the tule is not without exceptions; and it does pot prevail where parties -cannot be found, and where great inconvenience would result from its application. Cited 2 Mason’s Rep. 189.
    Neither creditors or legatees are required to be. parties» unless-where one or more residuary legatees.sue,
    But if all the parties interested under the will should have been absolutely, or Constructively.before'the Court, still it Was error in the circuit court to dismiss the-bill. The proper <com'iSe was for the defendants below to enter a demurrer. Practical Register, 261; 16 Wes. 321, 325; 4 
      Munford, 485. If the court could haye dismissed the bill, because all the residuary legatees were not parties, yet, in this case the complainant below sought to obtain á specific legacy, that sum to which he was entitled for his education; and as to this part óf the bill the'dismissal was error. 2 Chancery Cases, 124; 3 Johns. Chan. Hep. 555; Finch. 243.
    A sound construction óf thé will does not confine the education of those who were the objects of the bequest to preparation for a “ trade.” The appellant had obtained an education for the law, which he afterwards studied, and by no interpretation could it be claimed to restrict, the éxpenses of his instruction to the acquisition of such knowledge as ' was necessary for a mechanic art. The words of the wijl are to receive ¿ .liberal construction, and to be so applied as will-fully .execute the generous purposes of the testatrix. “ Tr&de” is “business,” and not a “ manual,” or.“.mechanic” employment. To the profitable use of every business knowledge is necessary; and in the United States men aré called to the highest stations from évery’occupation. To limit the education of the appellant only to a preparation for a mechanical employment, was contrary to those principles which should have been applied, taking into consideration the situation and relations of the testatrix, and of thé appellant.
    Upon general principles, the appellant is entitled to the proportion of the fund claimed by him. ^Although it was not expended in his education, it.is nevertheless his. Cited, 5 Fes.. 461. 1 Swanston, 35..
    This Court has all the facts before them, upon which a decree may be made, and it may determine what sum out of the fund appropriated-for the education of the nephéw of the testatrix. As it would not have been necessary to bring all the parties before the court, if a claim had been preferred while the education o,f the appellant was going on, it is not ■ essential that this should now be done. What is a reasonable and proper sum to be paid to. the appellant, depends on no other circumstances but those with which he is exclusively connected.
    
      Mr Taylor, for the appellees,
    stated that the. executors of the testatrix had instructed him to offer to restore the bill to the circuit court, if the appellant would there make all the legatees, the residuary legatees included, partiés. The executors are trustees bound to protect the fund for all who are interested in it. If this Court shall decide that they can make a final decree, and shall do so, it will be entirely satisfactory to the appellees.- The residuary legatees are interested in the whole of the funds in tKe hands of the executors. If the expenses of the education of the appellant, and of Bartholomew and Samuel Henley are limited according to the construction of the will assumed ,t>y the executors,, that fund, for all, is increased.
    The rule is settled, that when an interest can be shown to be in a party not- before the court, he must be brought in; unless special' circumstances authorise an exception to this rule. 1 Ves. Jun. 311.. 8 Wheaton, 451. 2,Atk. 510.
    Were not the 'Henleys interested in this proceeding'? This is not a specific legacy. The fund is to be raised -out of the residuary estate, and thus all interested in the residuum ought to be parties. .No legacy is specific, unless it is clearly so, and the amount of it not dependant on an ac-cóúnt. 4 Ves. 573. 2 Mad. 8, 9.
    By a fair construction of the will, the residuary legatees were interested in the sum to be appropriated to thé education of the appellant, and B. ánd S. Henley ; who were to be educated for a trade, not a profession; as, if those expenses were less than the dividends-on the stock, the residuary fund would.be increased. It was therefore proper, that all those thus interested should be before the circuit court.
    Want of parties may be objected to at the hearing. . This point came before the court of appeals of Virginia, and was so- decided in the case of Clark vs. Long, 4 Randall’s Rep. 451,
    The court may dismiss the proceedings for want of parties, or order parties to be made, 1 P. Williams, 428.
   ,Mr Chief Justice Marshall

delivered the opinion of, the Court.

This suit was brought by the plaintiff, against the defendants, the acting executors of. Mrs Martha Washington, íate of Mount Vernon, to obtain payment of legacies bequeathed to him in her last will.

The testatrix, after Several devises and bequests, devised as: follows: “ Item, it is my will and desire, that all the rest , arid residue of my estate, of whatever'kind and description, not herein specifically devised , or bequeathed, shall be sold by. the executors, of this my last will,, for ready money, as soon after my decease as the same can be done, and that the' proceeds thereof,, together with all the money in the house, and the debts due to fire, (the debts due from me and the legacies bequeathed, béing first satisfied)'shall be invested by my executors in eight per cent; stock of the funds of the United States,.arid shall stárid on the books in the. name of my executory, in. their character of éxecutors of my will; and it is" my desiré that ihe interest thereof shall be applied to. the proper education of Bartholomew Henley, ánd . Samuel. Henley, 'the two youngest sons of rtiy sister Henley, and also to the education of John Dandridge, son of my .deceased, ritephéw John Dandridge,'so. that they may be severally fitted and accornplished in, somé useful trade; and tq each. Of them who shall have lived to finish his education, or.to reach the age of twenty-one years, I give and bequeath one hundred pounds, to set him up in his trade.

, “ Item, my . debts and legacies being paid; and the education of Bartholomew Henley, Samuel Henley, and John Dandridge • aforesaid being completed, or they being all dead before the corhpleti’on thereof, it is my will.and desire* that all my estates arid intérésts, in whatever form existing; whether in rhoriey, funded stock, or any other species of property, shall be equally divided.atiiong all the persons hereinafter mentioned; who shall'be living at thé time that the interest' of the funded stock shall cease to be applicable, in pursuance Of my will herein before expressed, ,to íhe e.ducation of .my nephews» Bartholomew Henley, Samuel Henléy, and John Dandridge; namely, among Anna Maria Washington, daughter of my/niece, and John Dandridge, son of my nephew, and all my great grandchildren living at the time that the. interest of .the .said funded stock shall .cease to be applicable to the education of the said B..Henley, S.. Henley, and John Dandridgej and the same shall cease to be so applied when .all of them .shall die before they arrive to the age of twenty-one years, or those living shall have finished their education, or arrived at the age of twenty-one years.,} and so long as.any one of the three lives, who has not finished his. education or arrived to. the age of twenty-one years, the division of the said residuum is to be deferred, and no longer,”

The bill charges that.the executors.have not paid the: several suras of money bequeathed to him .by their testatrix } and prays that they may be decreed to pay the. same with interest.

The process was executed on one of the executors only. He failed to .answer, and the bill as. to him was taken for confessed,' and the court ordered the master commissioner to ascertain the period when the complainant attained his age of twenty-one years, and what would have been. a.competent siim for his education,..according to the .true intent and méaping of the last will of Martha Washington, and make.report 10 the.court. At a subsequent.term the defendants were ordered to settle their accounts before the commissioner. The defendant,. Thomas Peter., afterwards appeared, and filed his answer, ift whiéh he admits the last will of Martha Washington deceased, and that*'bis co-defendant and himself alone have qualified as executors, thereof. He says that they have paid the. legacy of one hundred pounds, and. advanced a considerable sum of money to the guardián of B..Henley,-S. Henley, and the complainant, to fit them , for some useful trade. He also, alleges that the executors have been prevented from dividing the. residuum,, by the unreasonableness of the demand made by the complainant.

The .master’s report shows that the complainant attained his age of twenty-one years on the 21st day of November 18 f 7 j that-the defendants were on that'day indebted to the estate for principal, the sum of $7282.30, and for interest accruing thereon and remaining in their hands, the sum of .$7345.1 L That they had paid the -legacy of 100 pounds, and had,advanced to. the guardian of the complainant for his education the sum of $166.67.

The cause came on to be heard in April 1827, when the bill was .dismissed for- want of proper parties.

At the argument, the counsel for the defendants .have, insisted that not qnly Bartholomew and Samuel Henley, but all the residuary legatees should have been made parties.

.This Court.is clearly of opinion that the two Henleys who participated with the complainant in .the fund applicable to their education, ought to have been parties to a suit which asks Jthe distribution, of that fund. This would be admitted if the whole MvaS distributable among them. But the Court thinks'it also proper, though a different cpnr struction should be put on the will. The fund is not so large that the claims of .each, w'hile all were under age, might bq. satisfied without taking into view the claims of the other two. In determining hp#/ much ought to have been applied to the education of tffe complainant, the. Court woqld, find it necessary to take into consideration the amount of the furid and the relative situation of all. the persons entitled to it.' They- ought to have beep parties toa suit-.in which their interests were involved.

The question whether the w'hole interest accruing-on the' •residuum 'ought to be divided among the.legatees, to whose education it was applicable,.or only so much tfiereofas was necessary,for the purpose for which it .was given, has been. earnestly, discussed at the.bar. In considering this, question, as in all .others depending on wills, the intention of the tes--tatrix is to be collected from the will, and. from, the circumstances under which it was made. In this .case th.e testatrix does not appear to have intended a pecuniary donation to .the. parties in the particular bequest under consideration. Her intention iq that respect was effected-by the gifts of 1Q0 pounds to eajpb, to set him up in his trade. This bequest seems to have been made not with a view of adding to their private fortunes, but with;a view to their education and preparation for that particular business which, they were after-wards to pursue. They aré-not therefore entitled to the whole fund, whatever may be its amount, but to so much of it as is required for the object it is to accomplish.

In ascertaining the amount which is so applicable, the plaintiffs contend that one of the learned professions'may be taken as the standard, with as much propriety as the trade or art of a mechanic. The Court does not think so. The distinction between a profession and a trade is.well understood; and they are seldom, if ever, confounded with each other in -ordinary language. If the testatrix had contemplated what in the common intercourse of society is denominated a profession, she would scarcely have used a term which is generally received aá denoting one of the mechanical arts.

But we do not think the bequest is confined to the expense of acquiring the trade, , so as to be enabled to exercise it in the common way. Such does not appear to have been the intent of the testatrix. Her bounty is extended to the proper education of three relatives, so that they may be severally fitted and accomplished in some useful trade. Their education is a primary object, as well as their acquisition of of the trade; and when we consider the situation and character of the parties, and the language of the will, we cannot doubt that the testatrix intended such an éducation as would fit .her relatives to hold a distinguished place in that line of life in which she designed them to move. The sum allowed for the object ought to be libeifal, such as would accomplish it, if the fund from which it was to be d.rawn would admit of it.

In a suit for the distribution of this fund we do not think the, residuary legatees necessary, parties. They have undoubtedly an interest in reducing the sum to be allowed out of it to the complainant, but they have the same interest in reducing every demand on the estate. Whatever remains sinks into the residuum, and that residuum is diminished as well by the claims of creditors and specific legatees as by this. In all such 'cases'the executors represent the residuary legatees, and guard their interests. It is a part of that duty which requires them to protect the interests of the estate. In such suits the residuary legatees are never made parties.. To require it would be an intolerable burthen on those who have claims on an estate in the hands of executors.

We do not think -that the bill ought to have been., dismissed for want of proper parties, .unless the Complainant refused to make such as were really necessary; and then it might have been dismissed without prejudice.

The circuit court can make no decree for the distribution of the. residuum, unless all. those entitled jo distribution are brought before the court;..but it may grant all other relief to which the complainant- may be entitled, on making Bartholomew and Samuel Henley parties.

This Court is-of opinion, that the decree of the circuit court, dismissing the complainant’s bill, ought. to be. reversed, and the' cause remanded to the said circuit court, with leave to the plaintiff to make new parties; after wiiich the cause ought to be referred to the master, with instructions to compute, the several sums which.ought to be allowed out of the fund applicable to the education of Bartholomew Henley, Samuel Henley and John Dandridge, in conformity with the will Of Mrs Martha Washington deceased ; on which sqms interest ought to.be. allowed; and also to compute-the sum to which the plaintiff may be entitled, as one of the residuary legatees of the said Martha Washington deceased; pre ide.d the other residuary.legatees be brought before the Court. as parties; on failure to do which, the plaintiff’s bib. is to be dismissed, so far as it claims a pa.rt of the residuary estate,, without prejudice.

This cause, came on to be heard on the transcript of the record, from .the circuit court of the United States for the district of Columbia,, .holden in ariit for the county of Alexandria, and was argued '.by counsel; on consideration whereof, this Court is of opinion, that the circuit court erred, in dismissing the. plaintiff’s bill for want of proper parties, aiid that the said decree ought to be reversed. Whereupon it i,s ordered, and decreed by this Court, that the decree of.the said circuit court in this cause be, and the same is hereby reversed; and this Court doth further order that the said cause be, and the same is hereby remanded to the said circuit court, with directions to give, leave to the plaintiff to make ;new parties, that the proper accounts may be taken in order- to a final decree; in which decree, the plaintiff ought to be allowed interest on the sum-due to him for his education out of the money applicable to that object.  