the original title of the judgment debtor, and to enforce the lien of his own judgment upon the land; this action was held to have been properly brought against the defendants named. The administrator of the deceased was held not to be a necessary party defendant, because the proceeding was really for the benefit of the estate, and he could make no opposition if he were present.1 § 251. *354. When Legatees and Next of Kin are neither Necessary nor Proper Parties. In actions by creditors against executors or administrators to recover debts alleged to be due from the deceased, or by the owners of the property to recover assets which had been in the possession of the deceased and apparently belong to his estate in the hands of his personal representatives, the legatees or next of kin are not necessary nor even proper parties defendant. The executors or administrators represent the estate. They can bring all suits to recover property in the hands of third persons alleged to belong to the estate, without joining the legatees or distributees as co-plaintiffs, and on the same principle they can defend all actions brought against themselves, involving the ownership of property in their own hands, or the indebtedness of the estate, without the presence of legatees and next of kin as co-defendants. Thus in an action. against executors to reach certain moneys and securities in their possession as apparent assets, but which it was claimed had been held by the testator in trust for the plaintiff and actually belonged to him, the legatees were held not to be necessary defendants. And in an ordinary suit to recover a debt due from the deceased, brought against the administrator, the widow, and the next of kin, it was held that all these defendants, except the administrator, were improperly joined; he represents them, and his defence is their defence.5 1 Cornell v. Radway, 22 Wis. 260, 265, per Dixon C. J. It was said that the administrator or executor might bring the suit; but this authority did not take away the right of the creditor. Wis. R. S., ch. 100, §§ 16-18. But see per contra, as to the necessity of the personal representative being made a party in such actions, 1 Dan. Ch. Pl. (4th Am. ed.), p. 200, and cases cited. 2 [Byrd v. Byrd (1895), 117 N. C. 523, 23 S. E. 324.] 8 [But where a suit was brought by the heirs of a devisee under a will to recover property misdirected by the life tenant, the administrator was held a necessary party: Burford v. Aldridge (1901), 165 Mo. 419, 63 S. W. 109.] King v. Lawrence, 14 Wis. 238. 5 Nelson v. Hart, 8 Ind. 293. That the personal representatives are the only § 252. 355. When a Different Rule applies. A different rule, however, prevails in an action by a distributee against the administrator, legatee against the executor, or beneficiary against the trustee, when the right asserted, if it exists at all, is also held by all the other parties similarly situated with the one who sues, and the decision would in fact determine all their rights. In such a case, in order that the trustee may not be subjected to a multiplicity of suits, when the whole controversy could be decided in one, the equitable doctrine primarily requires that all the distributees, legatees, or beneficiaries should unite as plaintiffs; but if any refuse to join, they should be made defendants.1 The statutes of several States permit an equitable action to be brought by the heirs of the testator to set aside a will of lands for any cause which can invalidate it. In such a suit the devisees under the will are indispensable defendants.2 In fact, the executor can hardly be called a necessary party, for he takes no interest in the land. Conversely, in an action to reach the land of a deceased intestate, his heirs are indispensable defendants, without whom proper defendants in such actions, see Story's Eq, Pl. §§ 104, 140; Anon., 1 Vern. 261; Lawson v. Barker, 1 Bro. C. C. 303; Brown v. Dowthwaite, 1 Mad. 446; Jones v. How, 7 Hare, 267; Haycock v. Haycock, 2 Ch. Cas. 124; Jennings v. Paterson, 15 Beav. 28; Micklethwait v. Winstanley, 13 W. R. 210; Pritchard v. Hicks, 1 Paige, 270; Wiser v. Blachly, 1 Johns. Ch. 437; Davison v. Rake, 45 N. J. Eq. 767. In general, all the personal representatives must be joined. Offey v. Jenney, 3 Ch. Rep. 92; Hamp v. Robinson, 3 De G., J. & S. 97; Conolly v. Wells, 33 Fed. Rep. 205; Howth v. Owens, 29 Fed. Rep. 722. But if an executor has not proved, he need not be joined. Strickland v. Strickland, 12 Sim. 463; Dyson v. Morris, 1 Hare, 413; Farrell v. Smith, 2 B. & B. 337; Clegg v. Rowland, L. R. 3 Eq. 368. And, in an action by a creditor against the heirs and devisees of his deceased debtor, to make his claim out of the land of the deceased in their hands, the joinder of such heirs and devisees was held proper, since the judgment could provide for the order of their liabilities. Rockwell v. Geery, 6 N. Y. Sup. Ct. 687; Schermerhorn v. Barhydt, 9 Paige, 28; Houston v. Levy's Ex., 44 N. J. Eq. 6; Read v. Patterson, 44 N. J. Eq. 211; Dandridge v. Washington's Ex., 2 Pet. 370; Deegan v. Capner, 44 N. J. Eq. 339. 1 Dillon v. Bates, 39 Mo. 292. [Hill v. Dade (1900), 68 Ark. 409, 59 S. W. 39: Where a suit is brought by heirs to determine whether an executrix had power under a will to sell the fee of the ancestor's land, all persons holding portions of said land through conveyances from the executrix are proper parties. See also Reiser v. Gigrich (1894), 59 Minn. 368, 61 N. W. 30, where the action was brought by the administrator against parties connected with a fund belonging to the estate.] 2 Eddie v. Parke's Ex., 31 Mo. 513. The action was brought against the executors alone. See Morse v. Morse, 42 Ind. 365; infra, § 379, note. [In Fogle v. St. Michael Church (1896), 48 S. C. 86, 26 S. E. 99, it was held that neither the executor nor heir at law was a necessary party in an action to enforce a contract to dispose of property by will, when the executor has turned over the entire assets to the devisee.] no decree can be made, and it is difficult to see how the administrator could be a necessary party.1 § 253. * 356. v. Trusts. Actions to enforce Performance of Ex press Trusts. Trustees and Survivors Necessary Parties. It is a universal and elementary rule that, in an action to enforce the performance of an express trust, the trustee is an indispensable defendant. This doctrine was applied in a case where a debtor had transferred personal property to a trustee upon trust to sell the same, and out of the proceeds to pay the demands of the creditor. The directions of the trust not having been complied with, the creditor brought an action against the debtor alone to foreclose the trust deed and for a sale of the goods. The trustee was held to be a necessary defendant.2 Where there were originally two or more trustees, and one or more have died, in an action by the beneficiary to enforce the trust, and especially if a violation thereof is alleged against all the trustees, the survivors and the personal representatives of the deceased not only may 1 Muir v. Gibson, 8 Ind. 187, 190. That the administrator is a proper party in such an action, see Lowry v. Jackson, 27 S. C. 318. See Silsbee v. Smith, 60 Barb. 372. In an action for an account of personal estate which came into the hands of a deceased administrator or executor, his personal representatives are necessary defendants. As to the necessary parties in an action to construe a will, see McKethan v. Ray, 71 N. C. 165, 170. 2 Tucker v. Silver, 9 Iowa, 261, per Wright C. J. After stating the rule as laid down in the text, the court declares that it has not been changed by the new procedure. See also McKinley v. Irvine, 13 Ala. 681; Cassiday v. McDaniel, 8 B. Mon. 519; Morrow v. Lawrence, 7 Wis. 574; Jones v. Jones, 3 Atk. 110. And, in general, all the trustees must be joined. Coppard v. Allen, 2 De G., J. & S. 173; Howth v. Owens, 29 Fed. Rep. 722. But a trustee who has never acted, and has released all his interest to his co-trustee, need not be made a party. Richardson v. Hulbert, 1 Anst. 65. When a trustee has assigned his interest in the trust estate, in general both he and the assignee should be defendants. Story's Eq. Pl§ 209; Bailey v. Inglee, 2 Paige, 278. But if he has assigned his entire be united as co-defendants,1 but they must be so joined, or else no decree enforcing the trust can be made.2 § 254. * 357. Joining Beneficiaries. Distinction between Actions in Opposition to, and in Furtherance of, the Trust. There is a broad distinction between the case of an action brought in opposition to the trust, to set aside the deed or other instrument by which it was created, and to procure it to be declared a nullity, and that of an action brought in furtherance of the trust, to enforce its provisions, to establish it as valid, or to procure it to be wound up and settled. In the first case, the suit may be maintained without the presence of the beneficiaries, since the trustees represent them all and defend for them. In the second, all the beneficiaries must be joined, if not as plaintiffs, then as defendants, so that the whole matter may be adjusted in one proceeding, and a multiplicity of suits avoided. The reason of this distinction is obvious. It is, that any one person interested in opposition to the trust has a right to test the validity thereof, and his voluntary action cannot be controlled by the will of a suit to enforce the trust against the property: Bridge Co. v. Fowler (1895), 55 Kan. 17, 39 Pac. 727.] 1 Sortore v. Scott, 6 Lans. 271, 276. It was held that the rule forbidding such union of parties in a legal action against joint debtors had no application to such an equitable suit. See also Petrie v. Petrie, 7 Lans. 90; King v. Talbot, 40 N. Y. 76. See also Hazard v. Durant, 19 Fed. Rep. 471. 2 Sherman v. Parish, 53 N. Y. 483, 490. Action by a sole beneficiary against a trustee for an alleged breach of the trust. There had been other trustees who were dead, and their personal representatives were not made defendants. Folger J. said: "It is the principle of courts of equity, in cases of breach of trust, when no general rule or order of the court interferes, and when the facts of the case call for a contribution or recovery over, that all persons who should be before the court to enable it to make complete and final judgment are necessary parties to the action. Nor has our mode of procedure abrogated the rule." He cites Hill on Trustees, 520, 521; Perry on Trusts, §§ 875, 876, 877; Lewin on Trusts, 845; Munch v. Cockerell, 8 Sim. 219; Perry v. Knott, 4 Beav. 179; Shipton v. Rawlins, 4 Hare, 619; Cunningham v. Pell, 5 Paige, 607; New York code, § 118. The court add the following very important rule: That, on timely objection to the want of necessary parties, if the plaintiff does not bring them in, the complaint must be dismissed, but not absolutely; the dismissal should be without prejudice. The complaint, however, should not even be thus dismissed if the cause can be made to stand over on terms, in order to enable the plaintiff to bring in the necessary parties. This ruling is in exact conformity with the plain intent of the codes, and with the views expressed by me in the text in a former paragraph. See also Haines v. Hollister, 64 N. Y. 1; Howth v. Owens, 29 Fed. Rep. 722. An heir at law is a proper, though not a necessary, party to a suit against the legal representative of his ancestor to recover loss sustained by a breach of trust of the ancestor as executor. McCartin v. Traphagen's Adm., 43 N. J. Eq. 323. 8 [But in an action by trustees, brought in furtherance of their duty as such, in respect to the trust property, the beneficiaries are not necessary parties: Roberts v. New York Elevated R. R. Co. (1898), 155 N. Y. 31, 49 N. E. 262.] others, while the trustees themselves are sufficient to represent and defend all the interests of those who claim under the trust.1 But when the trust is assented to, and the purpose is simply to carry out its provisions, all the beneficiaries are alike interested in that object and in reaching that same result, and it is just to the trustee that the controversy should be ended in one proceeding. As illustrations of this principle: In an action brought to set aside a trust deed made by a railroad company to a trustee for the benefit of bondholders, and to restrain a sale of the road thereunder, the beneficiaries under the trust were declared not to be necessary or even proper parties, and the application of one of thema bondholder to be admitted as a defendant was denied, although he alleged that the trustee intended to make no defence, and was actually colluding with the plaintiff and the company.2 On the same principle, where a testator had devised all his lands to his executors with power to sell and distribute the proceeds among his heirs, an action by a third person claiming to own part of these lands, denying that they belonged to the testator, and seeking to reach them or their proceeds in the hands of the executors, was held to be properly brought against the executors alone without joining the heirs of the deceased as defendants. The suit in effect sought to set aside the trust pro tanto between the executors and the heirs. 1 [The trustee is a necessary party in a suit to set aside the deed of trust: Markwell v. Markwell (1900), 157 Mo. 326, 57 S. W. 1078. But it was held in Robinson v. Kind (1896), 23 Nev. 330, 47 Pac. 1, that the beneficiaries were also necessary parties in a suit by one of them to revoke the trust.] 2 [F. G. Oxley Stave Co. v. Butler County (1894), 121 Mo. 614, 26 S. W. 367: "If the trustees were made parties and notified, that was sufficient. This is undoubtedly the rule in trusts of this character. Whatever binds the trustee in proceedings to enforce the trust, binds the bondholders, and whatever forecloses the trustee, in the absence of fraud or bad faith, forecloses them." See also Rumsey v. Peoples' Ry. Co. (1900), 154 Mo. 215, 55 S. W. 615.] Winslow v. Minn. & Pac. R. Co., 4 Minn. 313, 316. As to when the cestuis que trustent are or are not necessary defendants, see Verdin v. Slocum, 9 Hun, In like manner, an action by one 150; Dewey v. Moyer, 9 id. 473; Moore v. Hegemar, 6 id. 290; Benjamin v. Loughborough, 31 Ark. 210; The Trustees v. Gleason, 15 Fla. 384; Hill v. Durand, 50 Wis. 354. For further instances of actions brought in opposition to the trust, to which the beneficiaries are not necessary parties, see Vetterlein v. Barnes, 124 U. S. 169; Redin v. Branhan, 43 Minn. 283; Watkins v. Bryant, 91 Cal. 492; Ward v. Waterman, 85 Cal. 488. The trustee is a necessary party: McArthur v. Scott, 113 U. S. 340. 8 Paul v. Fulton, 25 Mo. 156. See also Ridenour v. Wherritt, 30 Ind. 485. [Women's Christian Ass'n v. Kansas City (1898), 147 Mo. 103, 48 S. W. 960: In an action to have effectuated and carried out a charitable trust established by a will, the heirs of the testatrix are not necessary parties. See also Lackland v. Walker (1899), 151 Mo. 210, 52 S. W. 414. In Newman v. Newman (1899), 152 Mo. 398, |