interested in the distribution are necessary parties to an action brought to enforce the trust; but where the proportionate share of each beneficiary has been definitively ascertained by a proceeding binding on the trustee, each is entitled to demand payment of the share belonging to himself, and when the payment is withheld he may maintain a separate action for its recovery. The liability of the trustee to each is then exactly the same as though the sum ascertained to belong to him was the only sum which the trustee had received and had been directed to pay. When a person jointly interested in the account is out of the jurisdiction, the cause has sometimes been allowed to go on without him as a party.2

$174. * 260. Special Applications of General Principles above Stated. General Rule. Important Exceptions. I shall now briefly describe some of the most important special applications of the foregoing general principles in relation to community and concurrence of interests. As a result of these principles, it is a general rule, with but few well-defined exceptions, that trustees cannot alone maintain actions relating to the trust property, but the beneficiaries must also be made parties to the suit in some form, either as co-plaintiffs with the trustees or as defendants.3

1 Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168, 176, per Duer J.; Walker v. Paul, Stanton's (Ky.) code, p. 37; Hubbard v. Burrell, 41 Wis. 365. A fund had been devised to a trustee for the benefit of the superannuated preachers of a certain "conference." It was held that the superannuated preachers of that body might unite in an action to enforce the trust for their own benefit and that of future persons entitled under it. Lancaster Bapt. Church v. Presb. Church, 18 B. Mon. 635.

2 Story Eq. Pl. §§ 78, 89; West v. Randall, 2 Mason, 196; Vose v. Philbrook, 3 Story, 335; Lawrence v. Rokes, 53 Me. 110; Mudgett v. Gager, 52 Me. 541; Drage v. Hartopp, 28 Ch. D. 414; Palmer v. Stevens, 100 Mass. 461.

31 Daniell's, pp. 220-224; Story Eq. Pl. §§ 207, 209; Covington & Lex. R. Co. v. Bowler's Heirs, 9 Bush, 468; Western R. Co. v. Nolan, 48 N. Y. 513; Large v. Van Doren, 1 McCarter, 208; Stilwell v. McNeely, 1 Green, Ch. 305; Van Doren v. Robinson, 1 C. E. Green, 256; Malin v.

Malin, 2 Johns. Ch. 238; Fish v. Howland, 1 Paige, 20; Schenck v. Ellingwood, 3 Edw. Ch. 175; Helm v. Hardin, 2 B. Mon. 232; Burney v. Spear, 17 Ga. 223; Woodward v. Wood, 19 Ala. 213; Kirk v. Clark, Prec. Cha. 275; Phillipson v. Gatty, 6 Hare, 26; Brokaw v. Brokaw's Ex., 41 N. J. Eq. 215; Northampton First Nat. Bk. v. Crafts, 145 Mass. 444; Boyd v. Jones, 44 Ark. 314. Where two or more trustees have been appointed, they must all unite in actions brought by them, as their right is strictly joint; and this rule applies, although some one of them may have attempted, by assignment or otherwise, to divest himself of the trust. Thatcher v. Candee, 33 How. Pr. 145 (N. Y. Ct. of App.). And see cases cited supra under §* 250.

The following are simple illustrations of this general doctrine. Where trustees in trust to sell lands brought an action against the purchaser at their sale to compel a specific performance of their contract of purchase, it was held that the cestuis que trustent of the purchase-money must be made parties. Again, where the trustees of a numerous unincorporated society brought an action to compel the specific performance of an agreement entered into by themselves for the benefit of the association, it was held that the members of the society should be joined, or, if they were too numerous, then some of them ought to be made co-plaintiffs, suing as representatives on behalf of the others.2 There are, however, as already stated, certain well-defined exceptions to this general rule requiring trustees and cestuis que trustent to be joined in suits concerning the trust property, of which the following are the most important: (1) When trustees appointed to sell lands are expressly authorized by the deed of trust to sell in their own names, and it is further expressly provided in such deed that their own receipt of the price shall be a complete discharge to the purchaser, it is settled that they may maintain a suit to compel a specific performance against the purchaser without joining the cestuis que trustent with themselves as parties.3 (2) In some special instances, where the interest of the beneficiaries was simply collateral to the rights of the trustee against the defendant, the trustee has been permitted to sue alone.* (3) And in suits between the trustees themselves, brought by one to compel the other to account for and restore trust property misappropriated by him, the beneficiaries need not be made parties. But if the cestuis que trustent have concurred in the

beneficiary and trustee in a deed of trust executed upon land the subject of partition, prior to the institution of a suit for that purpose, are proper parties to such suit, but no such rule prevails with respect to a beneficiary or trustee, in a mortgage or deed of trust executed after a partition suit has been instituted."]

1 Calverley v. Phelp, 6 Mad. 229.

2 Douglas v. Horsfall, 2 S. & S. 184. [Held in Lilly v. Menke (1894), 126 Mo. 190, 28 S. W. 643, that where plaintiffs, in behalf of an unincorporated church association, bring a suit in partition, the petition should allege that plaintiffs as trustees of the church sue for them

selves and all other members of said church."]

See Daniell's, pp. 221, 222, and cases cited.

4 As, for example, in Saville v. Tancred, 1 Ves. Sen. 101, 3 Swanst. 141, Story Eq. Pl. § 221.

Story Eq. Pl. § 213; Franco " Franco, 3 Ves. 77; Bridget v. Hames, 1 Col. 72; May v. Selby, 1 Y. & C. 235; Horsley v. Fawcett, 11 Beav. 565; Peake v. Ledger, 8 Hare, 313, 4 De G. & S. 137; Baynard v. Woolley, 20 Beav. 583; Allen v. Knight, 5 Hare, 272, 277; Cunningham ". Pell, 5 Paige, 607. But see Chancel lor v. Morecraft, 11 Beav. 262. When the

breach of trust, they must be joined in the suit brought by one trustee against his co-trustee to repair the fault.1

§ 175.261. Case of Suits by Executors and Administrators, and Suits by Assignees in Insolvency. Important Exceptions Continued. (4) The most important exception by far, as well as the most familiar one, is the case of executors and administrators; they can always sue alone, without joining the legatees, distributees, creditors, or other persons interested in the estate, as parties either plaintiff or defendant. The legal title to the personalty is so completely vested in the executors and administrators, that, both in law and in equity, they are considered as fully representing the rights and interests of all the other persons who have ultimate claims upon such estate as legatees, distributees, or creditors. In all actions, therefore, relating to the estate, they sue alone. This rule is fully established in equity as well as at law. All the acting executors or administrators must join; but if a portion only have proved, the others need not be made parties, although they may not have formally renounced. It is not indispensable, however, that all the executors or administrators should be plaintiffs; for it is enough in equity if all the parties are before the court, so that one executor or administrator may sue as plaintiff, if he make his co-executor

suit by the trustee is merely to recover or reduce to possession the trust property, and is in no way intended to control the administration or disposition of it, or to affect the right or relation of the cestui que trust, the latter is not a necessary party. Horsley v. Fawcett, 11 Beav. 565; Carey v. Brown, 92 U. S. 172, and cases cited; Hickox v. Elliott, 10 Sawy. 415, s. c. 22 Fed. Rep. 13, 19, 20; Smith v. Portland, 30 Fed. Rep. 734 (suit to protect the trust property by injunction); Re Straut's Estate, 126 N. Y. 201; Western R. Co. r. Nolan, 48 N. Y. 513. See also ante, §*178.

1 Jesse v. Bennett, 6 De G., M. & G. 609.

21 Daniell's, p. 224; Jones v. Goodchild, 3 P. Wms. 33; Peake v. Ledger, 8 Hare, 313; Smith v. Bolden, 33 Beav. 262. It has been held that an administrator, suing in equity to recover assets of the estate, may join the distributees as co-plaintiffs; that such uniting of parties,

though not at all necessary, is not improper. Richardson's Administrator v. Spencer, 18 B. Mon. 450. An administrator may maintain an action to set aside transfers of his intestate in fraud of creditors, since he represents the creditors as well as the deceased. Cooley v. Brown, 30 Iowa, 470, 473, 474. And see cases cited supra under § * 252.

31 Daniell's, p. 226; Offley v. Jenney, 3 Ch. Rep. 92; Cramer v. Morton, 2 Molloy, 108.

4 Davies v. Williams, 1 Sim. 5; Dyson v. Morris, 1 Hare, 413; Rinehart v. Rinehart, 2 McCarter, 44; Marsh v. Oliver, 1 McCarter, 262. But an executor who has not proved the will may, nevertheless, be a necessary defendant in a suit brought to carry its trusts into effect. Ferguson v. Ferguson, 1 Hayes & J. 300; Yates v. Compton, 2 P. Wms. 308; Cramer v. Morton, 2 Moll. 108; Thompson v. Graham, 1 Paige, 384.

or co-administrator a defendant. When a residuary legatee sues for his share of the residue, all the other residuary legatees must be joined either as plaintiffs or defendants.2 And in a suit for distribution, all the distributees must be brought in as parties, primarily as plaintiffs, but at all events as defendants.3 Where legacies are charged upon real estate, the executors alone are not sufficient parties; but all the other legatees must be brought in, so that the assets may be marshalled, and the respective rights of all may be determined. (5) Another important exception to the rule requiring the union of beneficiaries and trustees in suits relating to the trust property is the case of assignees in trust for creditors, and the assignees in bankruptcy or insolvency. These particular trustees, as well as executors and administrators, may always sue and defend alone in such actions, without joining with themselves the creditors whom they represent as cestuis que trustent.5 Nor need the assigning debtor, bankrupt, or insolvent be made a party.

§ 176. * 262. General Principle Applicable to those Having Future and Expectant Interests. Equity Doctrine. Illustrations. The principle which requires all persons claiming interests in the subject-matter concurrent with the plaintiff who instituted the suit to be made parties, is applicable in general to those having future and expectant interests, as well as to those whose interests are present, and whether they are in possession, remainder, or reversion. It is the established doctrine of equity that when a person claims an estate, either under a will or a deed by which successive estates or interests have been created, all the other persons claiming under the same will or deed, down to the one who is entitled to the first vested estate of inheritance, must be

1 Wilkins v. Fry, 1 Meriv. 244, 262; Blount v. Burrow, 3 Bro. C. C. 90; Dare v. Allen, 1 Green, Ch. 288.

2 1 Daniell's, p. 225; Harvey v. Harvey, 4 Beav. 215, 220; Smart v. Bradstock, 7 Beav. 500; Bateman v. Margerison, 6 Hare, 496, 499; Doody v. Higgins, 9 Hare, Ap. 32, 38; Gould v. Hayes, 19 Ala. 438.

8 Hawkins v. Craig, 1 B. Mon. 27; Osborne v. Taylor, 12 Gratt. 117. But see Keeler v. Keeler, 3 Stockt. 458; Moore v. Gleaton, 23 Ga. 142.

4 Morse v. Sadler, 1 Cox, 352; Hallett

v. Hallett, 2 Paige, 15; Howland v. Fish, 1 Paige, 20; Todd v. Sterrett, 6 J. J. Marsh. 432. [In Youngson v. Bond (1902), 64 Neb. 615, 90 N. W. 556, it was held that an administrator could not bring an action to quiet title, since his right to the real estate was possessory only.]

5 1 Daniell's, p. 224; Spragg v. Binkes, 5 Ves. 587. See also Jewett v. Tucker, 139 Mass. 566; Smith v. Jones, 18 Neb. 481; Warren v. Howard, 99 N. C. 190.

6 De Golls v. Ward, 3 P. Wms. 311 (n.); Kaye v. Fosbrooke, 8 Sim. 28; Dyson v. Hornby, 7 De G., M. & G. 1.

joined in the action as parties, either as co-plaintiffs or as defendants. To illustrate by a simple example: If, by a deed, land has been given to A. for years, with remainder to B. for life, and remainder to C. in fee, and A. is in possession as the tenant for years, B. cannot alone maintain an action against A. to restrain the commission of waste; but C., the remainder-man in fee, must also be brought in as a party, naturally as a coplaintiff, but if not, then as a defendant, so that he may be before the court representing the ultimate ownership. All those entitled to intermediate estates prior to the first vested inheritance must also be joined, so that the entire ownership may be brought before the court, and may be bound by its decree.1

§ 177. *263. General Rule in Suits for Specific Performance. Illustrations. In actions to compel the specific performance of contracts, the immediate parties to the agreement are, as a general rule, the only necessary parties to the suit; but this includes, of course, those who by substitution become clothed with the rights or duties of the original contractors, as heirs, devisees, or sometimes the personal representatives. If a tract of land is sold in separate parcels to different purchasers, the latter cannot unite in an action for a specific performance against the vendor, since each sale is distinct, and depends upon its own circumstances. But if there is only one contract of sale to several persons covering the land in question, although it may have stipulated for different shares, the purchasers may unite; it is not necessary that the vendees should be jointly interested in the purchase, in the legal import of that term, it is enough if they have common or concurrent interests in the subject-matter.3 If the vendee in a land contract dies, his heirs are the parties to

11 Daniell's, pp. 227-330; Story Eq. Pl. 144; Finch v. Finch, 2 Ves. Sen. 492; Molineux v. Powell, 3 P. Wms. 268 (n.); Herring v. Yoe, 1 Atk. 290; Pyncent v. Pyncent, 3 Atk. 571; Sohier v. Williams, 1 Curtis, 479.

21 Daniell's, p. 230; Tasker v. Small, 3 My. & Cr. 63, 69; Wood v. White, 4 My. & Cr. 460; Robertson v. Gr. West. Ry. Co., 10 Sim. 314; Humphreys v. Hollis, Jac. 73; Paterson v. Long, 5 Beav. 186; Peacock v. Penson, 11 Beav. 355; Petre v. Duncombe, 7 Hare, 24; De Hoghton v. Money, L. R. 2 Ch. App. 164, 170; Bishop of Winchester v. Mid. Hants Ry. Co., L. R.

5 Eq. 17; Aberaman Iron Works v. Wickens, L. R. 4 Ch. App. 101; Fenwick v. Bulman, L. R. 9 Eq. 165; Daking v. Whimper, 26 Beav. 568; Morgan v. Morgan, 2 Wheat. 290; Lord v. Underdunck, 1 Sandf. Ch. 46; Hoover v. Donally, 3 Hen. & Mun. 316. See McCotter v. Lawrence, 6 N. Y. Sup. Ct. 392, 395, and Maire v Garrison, 83 N. Y. 14, 29. [For an interesting case concerning the question of parties plaintiff in an action of specific performance, see Daly v. Ruddell (1902), 137 Cal. 671, 20 Pac. 784.]

3 Owen v. Frink, 24 Cal. 171, 177.