Carrau v. O'Calligan

ROSS, Circuit Judge, after stating the case as above, delivered the opinion of the court. We are of the opinion that the court below was without jurisdiction of the subject-matter of the suit, and, further, that all necessary parties were not before the court, some of whom, if made parties, would have ousted the court of jurisdiction.. On both of these grounds we think the court below should have dismissed the bill at the complainants’ cost. — 663 — In the Case of Broderick’s Will, 21 Wall. 503, 509, 22 L. Ed. 599, the Supreme Court declared it to be “undoubtedly the general rule, established both in England and this country, that a court of equity will not entertain jurisdiction of a bill to set aside a will or the probate thereof.” And the court added: “Whatever may have been the original ground of this rule (perhaps something in the peculiar constitution of the English courts), the most satisfactory ground for its continued prevalence is that the constitution of a succession to a deceased person’s estate partakes in some degree of the nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded as upon res judicata by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and, consequently, that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud; and that the result attained should be firm and perpetual. The courts invested with this jurisdiction should have ample powers both of process and investigation, and sufficient opportunity should be given to check and revise proceedings tainted with mistake, fraud, or illegality. These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings. And one of the principal reasons assigned by the equity courts for not entertaining bills on questions of probate is that the probate courts themselves have all the powers and machinery necessary to give full and adequate relief.” But wherever, by the law obtaining in a state, customary or statutory, suits in equity may be maintained in the courts of such state to set aside the probate of a will, similar suits may be maintained by original process in a federal court, where the requisite diverse citizenship and other requisite conditions exist. Thus, in the case of Richardson et al. v. Green et al., so much relied upon by counsel for the appellees (61 Fed. 423, 9 C. C. A. 565), decided in this court by Judges Knowles and McKenna, the latter now an associate justice of the Supreme Court, and which was a suit brought in the Circuit Court of the United States for the District of Oregon for the purpose, in part, of obtaining a decree annulling the probate of a certain will that had been theretofore probated in one of the county courts of that state on the ground that the probated will was a forgery, this court affirmed the decree of the lower court which canceled the will; thus sustaining the jurisdiction of the federal courts in the matter. But it did so for the reason, as plainly appears from the opinions of the judges deciding the case, that it was found that while, under the laws of Oregon, the county courts of that state were given exclusive jurisdiction in the first instance to take proof of wills, there was no provision of the Oregon law “to warrant any contest upon the validity of a will at the time the same was being probated,” but authority in any one interested in the estate to attack the will by an independent suit at any time after its probate. This court, having found that such a remedy existed in the Oregon courts, very properly held that it could be exercised by the United States Circuit Court for that state, the requisite diverse citizenship and other requisite conditions existing. But the laws of the state of Washington in respect to the probate of wills and their contest are quite — 664 — different. By section 6 of article 4 of the Constitution of that state the superior courts of the state are given original jurisdiction “of all matters of probate,” as well as of all cases in equity and of all cases at law not specially excepted. And by a statute of the state it is provided that: “The superior courts in the exercise of their jurisdiction in matters of probate shall have power: “(1) To take proof of wills and to grant letters testamentary and of administration; * * * “(2) To settle the estates of deceased persons, and the accounts of executors, administrators, and guardians; “(3) To allow or reject claims against the estates of deceased persons, as hereinafter provided; ************ “(5) To award process and cause to come before them all persons whom they may deem it necessary to summon, whether parties or witnesses, or who, as executors, administrators, or guardians, or otherwise, shall be entrusted with or in any way accountable for any property belonging to any minor, orphan, or person of unsound mind, or estate of any deceased person; “(6) To order and cause to be issued all writs which may be necessary to the exercise of their jurisdiction.” 2 Hill’s Ann. St. & Codes of Washington, § 845. By section 851 of the same statutes it is provided that: “Wills shall be proved and letters testamentary or of administration, shall be granted: “(1) In the county of which deceased was a resident or had his place of abode at the time of his death. “(2) In the county in which he may have died, leaving estate therein and not being a resident of the state. “(3) In the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death.” Various provisions follow concerning the production of and petition for the probate of wills, and among them section 861, which provides that: “Applications for the probate of a will or for letters testamentary, may be made to the judge of the superior court and he may also at any time issue all necessary orders and process to enforce the production of any will.” By section 862 of the same statutes it is provided that: “When any will is exhibited to be proyen the court may immediately receive the proof and grant a certificate of probate, or if such will be rejected, issue a certificate of rejection.” Section'867 is as follows: “All the testimony adduced in support of the will shall be reduced to writing, signed by the witnesses and certified by the judge of the court.” And the next section provides for the recordation, in a book to be kept for that purpose, of all wills admitted to probate. Section 872 of the same statutes is as follows: “If any person interested in any will shall appear within one year after the probate or rejection thereof, and by petition to the superior court having jurisdiction, contest the validity of said will, or pray to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will or to the rejection thereof. Issues shall be made up, tried, and determined in said court respecting the competency of the deceased to make a last will and testament, or respecting the execution by the deceásed — 665 — of such last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of such will.” The next section (873) provides that: “Upon the filing of the petition referred to in the next preceding section a citation shall he issued to the executors who have taken upon them the execution of the will or to the administrator with the will annexed, and to all legatees named in the will residing in the state or to their guardians if any of them are minors, or to their personal representatives if any of them are dead, requiring them to appear before the court on a day therein specified, to show cause why the petition should not be granted.” By section 874 it is declared that: “If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding, save to infants, married women, persons absent from the United States or of unsound mind, a period of one year after their respective disabilities are removed.” By section 876 it is provided that: “If, upon the trial of said issue, it shall be decided that the will is for any reason invalid or that it is not sufficiently proved to have been the last will of the testator, the will and the probate thereof shall.be annulled and revoked.” It is thus seen that by the statutes of the state of Washington provision is expressly made for the contest, within a stated time, of any will theretofore admitted to probate, for any cause affecting the validity of the will, by petition to the superior court having jurisdiction, in which contest issues are required to be made up, tried, and determined in that court, with a provision to the effect that, if no person shall so appear within the time limited, the probate of such will shall be binding. And such we understand to be the effect of the decision of the Supreme Court of Washington in the case of State ex rel. Stratton, Attorney General, v. Tallman, Judge of the Superior Court, 65 Pac. 545, concerning this very estate of Sullivan. It appears from the opinion of the court in that case that the Attorney General of the state filed a motion in the superior court having jurisdiction of the estate in question “praying for the vacation of the order admitting the will to probate, and to set aside all the proceedings leading up to the probate of the will, upon the grounds that the court acquired no jurisdiction to hear any evidence in support of the will; because no citation was issued as required by law, because the citation was issued on the day it bears date and at the time the will was presented to the court, and immediately returned by the sheriff without making any effort to find any of the heirs of deceased, or any person interested in the estate; and because deceased never made or attempted to publish and declare the will.” The probate court having declined to consider or decide the motion on the ground that the state could not properly appear in the proceedings, the Attorney General applied to the Supreme Court of the state for a mandate directing the probate court to consider and determine the motion, and in denying the writ that court said: “The extraordinary writ will not be issued if relator has a plain, speedy, and adequate remedy at law. Relator urges that under subdivision 8, § 4620, 1 Ballinger’s Ann. Codes & St., the state is interested in testing the validity of the will, because, in the event of the establishment of intestacy and upon the failure of heirs the estate escheats to the state. The effect of the order — 666 — admitting a will to probate, either written or nuncupative, is declared in section 6108, 2 Ballinger’s Ann. Codes & St., ‘as effectual in all cases as the original would be if produced and proven,’ and such effect by section 6112 is declared binding upon all persons if its validity shall not be contested within one year after the probate or rejection of the will. Assuming that the state may have such contingent interest in the estate as to have the real truth of the existence and validity of the will determined, it appears there is a plain procedure, which is speedy and adequate, pointed out in section 6110, Id., by which issues may properly be made up and tried and determined respecting all questions affecting the regularity of the execution or of the validity of the will, and the superior court entertaining such a suit may fully protect such rights in the estate by such stay of proceedings in the procedure in probate as may be necessary or effective. The conclusion, therefore, is that the appropriate procedure is designated in section 6110, supra, and there is no necessity shown for a mandate from this court” 65 Pac. 546. It is true that the court, in speaking of the contest authorized by section 6uo, Ballinger’s Ann. Codes & St., uses the word “suit,” which was manifestly an inapt expression; but that the court did not thereby mean that such contest should be by an independent suit in a department of the superior court of the state not charged with the administration of the estate is very clearly shown by its express declaration to the effect that the appropriate procedure is designated in section 6ilo of the state statutes, which in terms declares that such contest shall be initiated “by petition to the superior court having jurisdiction”—that is to say, to the superior court having jurisdiction of the estate—in which the required issues shall be made up, tried, and determined, and which court, having such jurisdiction, may direct “such stay of proceedings in the procedure in probate as may be necessary.” This, we think, is the plain meaning of the decision of the Supreme Court of the state in the case of State ex rel. Stratton, Attorney General, v. Tallman, Judge, supra. That court surely did not mean to hold that one department of the superior court of the state could interfere with the due proceedings of a co-ordinate branch of the same court in the matter of an estate of which it acquired the first, and, indeed, the exclusive, jurisdiction, by the filing therein of a petition for the probate of an instrument alleged to be the will of one dying within its jurisdiction, and alleged to have left real and personal property therein. Subsequent to the above decision of the Supreme Court of the state of Washington the Attorney General of the state moved the superior court that was administering the estate of the deceased, Sullivan, for an order directing citation to issue as prayed in his petition for the contest of said alleged will, which the probate court denied on the ground “that the state of Washington has no right at this time to make said petition contesting said will and file the same, or appear in said matter, and is not a proper party to appear in said probate proceeding to contest said will, or for any purpose whatever.” Thereupon the Attorney General, on behalf of the state, again applied to the Supreme Court of the state for a writ of mandate to compel the issuance of such citation. In denying the writ on the ground that the petitioner had a remedy at law by appeal from the action of the probate court, the Supreme Court of Washington said: “A number of questions are discussed in the briefs of the respective counsel relating to the power of the Attorney General to appear in behalf of the state — 667 — In such a proceeding as that instituted in the superior court, and also as to the right of the state to appear by any one in such a proceeding. It is contended by respondent that the right of the state to assert control of property alleged to have escheated is not an active, but a passive, right, and that while the proper probate court is engaged in determining the legal disposition to be made of the property the state has no right to interfere, but that the assertion of the state’s claim becomes active when it has been lawfully determined that there are neither heirs nor legatees. The examination of these questions would involve extended discussion, and it is unnecessary to pass upon them here, for the reason that we think the relator has a remedy at-law by appeal.” State ex rel. Stratton, Attorney General, v. Tallman, Judge, 69 Pac. 1101. Here again the Supreme Court of Washington clearly indicates that the proper court, under the statutes of the state, in which to contest the validity of the will in question, is that department of the superior court exercising probate jurisdiction and having control of the estate in question; for it would hardly have held that the relator had a remedy at law by appeal from the ruling of that court if there was no jurisdiction of his contest in the court in which he was proceeding. “The powers of the superior court in respect to its probate jurisdiction,” said the same court in Re Alfstad’s Estate, 27 Wash. 175, 182, 67 Pac. 593, “are the same as they would be if it were in fact a separate probate court. Proceedings in probate matters, in actions in equity, and at common law are distinct, and should not be intermingled, except in cases specially authorized by law.” It is true that in the subsequent cases of Browder v. Phinney, 70 Pac. 264, and In re Murphy’s Estate, 70 Pac. 107, the Supreme Court of Washington said: “In this state we have no probate court, properly speaking, as distinguished from the court that entertains jurisdiction of other matters. The court of general jurisdiction also hears and determines probate matters. Matters pertaining to probate are referred to what is called ‘probate’ procedure, as distinguished from what is denominated ‘civil’ or ‘criminal’ procedure. But when the court, sitting in a probate proceeding, discovers in a petition the statement of facts which forms the basis of a controversy, we see no reason why it may not settle the issues thereunder when an appearance has been made thereto, and then proceed to try it in a proper manner, as any other civil action. The court may require the proceeding to be separately docketed, if, when the issues are formed, it appears to be such as should be thus docketed. Whether a citation should have issued on the strength of this petition or not, it is nevertheless true that appellant responded to the citation, and appeared generally by demurrer to the petition, and asked its dismissal simply on the ground that the court could not hear it as a probate proceeding. We think it was not necessary to sustain the demurrer and dismiss the proceeding on that ground. But under our liberal practice as to the form of actions the petition could be treated as in the nature of a complaint. The issues could be framed thereunder, and the cause tried without requiring another statement of the same facts under some other form or name. If it developed that it was not properly a probate proceeding, it would not be treated as such.” In the case at bar the contest of the will is strictly a probate proceeding, and the proper forum for its determination is, as we think the Supreme Court of Washington indicated in the two cases above cited relating to this very estate, that department of the superior court having jurisdiction of the estate, and actually engaged in its administration. — 668 — We concur in the opinion expressed by the Supreme Court of California in the matter of Joseph’s Estate, 50 Pac. 768, that a petition to probate a will is the beginning of a special proceeding, and that “the order admitting the will to probate is not final so long as proceedings may be taken (under the statute) to revoke the probate. In all subsequent stages the contest is but a part of the proceeding to probate the will, and is not a new and distinct proceeding. The subject-matter is the same, and the ultimate issue, to wit, whether the will in question should stand as probated, is the same.” In our opinion, there is nothing in the case of Gaines v. Fuentes et al., 92 U. S. 10, 23 L. Ed. 524, to sustain the jurisdiction of the federal court in the present suit. That case came before the Supreme Court of the United States on writ of error to the Supreme' Court of the state of Louisiana. The action was brought in the Second District court of the parish of Orleans, which, under the laws' of Louisiana, was invested with jurisdiction over the estates of deceased persons, and of appointments necessary in the course of their administration. In form it was an action to annul an alleged will of one Daniel Clark, the father of the plaintiff in error in the case, and to recall the decree of the court by which it was probated. The complaint, or petition, as it was called, set forth that on the 18th of January, 1855, the plaintiff in error applied to the district court of the parish of Orleans for the probate of the alleged will, and that by decree of the Supreme Court of the state the alleged will was recognized as the last will of the deceased, Clark, and was ordered to be recorded as such; that this decree of probate was obtained ex parte, and by its terms authorized any person at any time, should he desire to do so, to contest the will and its probate in a direct action, or as a means of defense by way of answer or exception, whenever the will should be set up-as a muniment of title; that the plaintiff in error subsequently commenced several suits against the petitioners in the Circuit Court of the United States to recover sundry tracts of land and properties of great value, situated in the parish of Orleans and elsewhere, in which they were interested, setting up the alleged will as probated as a muniment of title, and claiming under the same as instituted heir of the testator; and that the petitioners were unable to contest the validity of the alleged will so long as the decree of probate remained unrecalled. The petitioners then proceeded to set forth the' grounds upon which they asked for a revocation of the will, and the recalling of the decree of probate; these being substantially the falsity and insufficiency of the testimony upon which the will was admitted to probate, and the status of the plaintiff in error, incapacitating her to inherit or take by last will from the decedent. A citation having been issued upon the petition, and served upon the plaintiff in error, she applied, in proper form, with a tender of the necessary bond, for removal of the cause to the Circuit Court of the United States for the District of Louisiana, under section 12 of the judiciary act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 79), on the ground that she was a citizen of New York and the petitioners were citizens of Louisiana. The court denied the application, for the alleged reason that, as she had made herself a party to the proceedings in the court rela — 669 — live to the settlement of Clark’s succession by appearing for the probate of the will, she could not avoid the jurisdiction when the attempt was made to set aside and annul the order of probate which she had obtained. The court, however, proceeded to say, in its opinion, that the federal court could not take jurisdiction of a controversy having for its object the annulment of a decree probating a will. The plaintiff in error then applied for the removal of the action on another ground, which was also denied, on the ground that the federal court could not take jurisdiction of the subject-matter of the controversy. Other parties having intervened, the applications were renewed, and again denied. An answer was then filed by the plaintiff in error, denying generally the allegations of the petition except as to the probate of the will, and interposing a plea of prescription. Subsequently a further plea was filed to the effect that the several matters alleged as to the status of the plaintiff in error had been the subject of judicial inquiry in the federal courts, and had been there adjudged in her favor. Upon the hearing a decree was entered annulling the will and revoking its probate. The judgment of the Supreme Court of the state affirming this decree was reversed on writ of error on the ground that the case should have been transferred from the parish court of Orleans to the Circuit Court of the United States, and in giving that judgment the Supreme Court of the United States held that, while the action was in form to annul the alleged will of Daniel Clark, and to recall the decree by which it was probated, it could not be treated as properly instituted for the revocation of the probate, but should be and was treated as brought against the devisee by strangers to the estate to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity was established, so far as it affects their property, for the reason that the petitioners were not heirs of Clark, nor legatees, nor next of kin, and did not ask to be substituted in place of the plaintiff in error. “It is,” said the court, “in fact an action between parties; and the question for determination is whether the federal court can take jurisdiction of an action brought for the object mentioned between citizens of different states upon its removal from a state court.” The court held (92 U. S. 20, 23 L. Ed. 524) that; “The suit in the parish court is not a proceeding to establish a will, but to annul it as a muniment of title, and to limit the operation of the decree admitting it to probate. It is in all essential particulars a suit for equitable relief—to cancel an instrument alleged to be void, and to restrain the enforcement of a decree alleged to have been obtained upon false and insufficient testimony. There are no separate equity courts in Louisiana, and suits for special relief of the nature here sought are not there designated suits in equity. But they are none the less essentially such suits; and if, by the law •obtaining in the state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a federal court, where the parties are on the one side citizens of Louisiana and on the other citizens of other states.” Not only was there no statute of Louisiana like that, of the state of Washington, requiring the contest of a will admitted to probate to be initiated and prosecuted in the court having jurisdiction of the •estate and charged with its administration, but it appears from the — 670 — statement of the case of Gaines v. Fuentes that the decree of probate there sought to be annulled was not only ex parte, but that by its very terms any person was authorized to contest the will, and its probate in a direct action. The case of Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867, involved the estate of Mary McAuley, deceased, who died seised of real estate in the city of Pittsburg, Pa., leaving also a large amount of personal property. As respects the latter, she died intestate, but she left the following instrument, written and signed by her: “By request of my dear brother my house on Duquesne Way is to be sold at my death and the proceeds to be divided between ‘The Home for the Friendless,’ and ‘The Home for Protestant Destitute Women.’ ” That instrument was admitted to probat.e on the 12th of January, 1886, by the register of Allegheny county, Pa., as the will of Mary McAuley, and letters of administration cum testamento annexo upon her estate were issued to Alexander M. Byers. Byers proceeded with the administration of the estate, and on January 29, 1887, he filed in the register’s office an account showing his receipts and expenditures, and what balance he had in his hands for distribution, amounting to a large sum of money. The account of Byers as administrator with the will annexed was examined and allowed by the register, and was presented for approval to the orphans’ court of Allegheny county, and was by that court on March 7, 1887, approved and confirmed, and, no exceptions thereto having been filed, the confirmation became absolute. Thereupon, in pursuance of statutory directions, this confirmed account was put upon the audit list of the orphans’ court for distribution of the balance shown to be in the administrator’s hands, and the court fixed March 29, 1887, as the day to hear the case. The day before the hearing thus fixed, a bill in equity was filed in the Circuit Court of the United States for the Western District of Pennsylvania, by two citizens of Ohio, against the administrator, Byers, and other parties claiming to be interested in the estate, including the two corporations named in the probated instrument. The bill set forth the death of Mary McAuley; that there were two classes of claimants to the estate, to wit, the first and second cousins of the decedent; that the so-called will was null and void; and that there was a large amount of personal estate in the hands of the administrator, etc. The prayer was that the will and the probate be declared void, and of no effect; that the administrator be enjoined from disposing of the real estate, and from collecting the rents therefrom, and that some suitable person be appointed to take charge of it until partition; that a partition of it be had and made to and among the various parties in interest, and that the defendant Byers be directed to make a full, just, and true account of all assets in his hands; that an account be taken of the decedent’s debts and' funeral expenses, ánd the surplus distributed among the plaintiff and other parties entitled thereto; and for general relief. To this bill the administrator, Byers, filed a plea setting up the proceedings in the orphans’ court, which plea was overruled by the Circuit Court. The case was then put at issue by answer and replication, and resulted in a final decree by the Circuit Court to the effect — 671 — that the real estate left by the decedent be distributed equally between the Home for the Friendless and the Home for Aged Protestant Women, and that the personal estate of the decedent be distributed among the 13 first cousins of the decedent, to the exclusion of her second cousins. The Supreme Court held that the Circuit Court erred in taking any action or making any decree lopking to the mere administration of the estate, or attempting to adjudicate the rights of citizens of the state as between themselves, but that, as it appeared that the debts of the estate had been paid, and the estate was ready for distribution, but that no adjudication had been made as to the distributees, '“in that exigency the Circuit Court might entertain jurisdiction in favor of all citizens of other states, to determine and award their shares in the estate. Further than that it was not at liberty to go.” 149 U. S. 620, 13 Sup. Ct. 911, 37 L. Ed. 867. But certainly, in order to make such determination, it is essential that all adverse claimants be made parties. In the case of Byers v. McAuley it does not appear that any one interested in the estate was absent. There is in the case no suggestion of the absence of any necessary or proper party, and no question of that nature'was presented or considered. In the case at bar, however, there were persons not made parties to the suit who claimed to be the sole and exclusive heirs of the deceased, and who, if made parties, would, on the ground of citizenship, oust the federal court of any jurisdiction in the premises. If any of those claims be well founded, it would, of course, result that the complainants in the court below are without any right. Those claimants were, therefore, essential parties to the controversy concerning the heirship in question, and we think counsel for the appellees altogether mistaken in saying that there is anything to the contrary in Byers v. McAuley, or in the case of Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260. The latter was a case, as stated by the Supreme Court in Byers v. McAuley, “of a bill filed by one of the distributees of an estate against the administrator and the sureties on his official bond, to obtain her distributive share in the estate of the decedent. Plaintiff was a citizen of Virginia, and the defendant a citizen of Missouri, and an administrator appointed by the probate court of one of its counties. Suit was brought in the Circuit Court of the United States for the District of Missouri. The charge in the bill was gross misconduct on the part of the administrator, and false settlement with the probate court; and that he had, by fraudulent misrepresentations, obtained a settlement with plaintiff for a sum less than she was entitled to. A demurrer to the bill was sustained in the court below, but this court held that the bill was sufficient, and that the demurrer was improperly sustained. In other words, the ruling was that the plaintiff, a citizen of another state, could apply to the federal courts to enforce her claim against an administrator arising out of his wrongful administration of the estate.” To the objection that the other distributees were not made parties, the court said (7 Wall. 431, 19 L. Ed. 260): “It is undoubtedly true that all persons materially interested in the subject-matter of a suit should be made parties to it; but this rule, like all general — 672 — rules, being founded in convenience, will yield whenever it is necessary that it should yield in order to accomplish the ends of justice. It will yield if the court is able to proceed to a decree and do justice to the parties before it without injury to absent persons, equally interested in the litigation, but who cannot conveniently be made parties to the suit. The necessity for the relaxation of the rule is more especially apparent in the courts of the United States, where, oftentimes, the enforcement of the rule would oust them of their jurisdiction, and deprive parties entitled to the interposition of a court of equity of any remedy whatever. The present case affords an ample illustration of this necessity. The complainant sues as one of the next of kin, and-names the other distributees, who have the same common interest, without stating of what particular state they are citizens. It is fair to presume, in the absence of any averments to the contrary, that they are citizens of Missouri. If so, they could not be joined as plaintiffs, for that would take away the jurisdiction of the court; and why make them defendants, when the controversy is not with them, but the administrator and his sureties? It can never he indispensable to make defendants of those against whom nothing is alleged and from whom no relief is asked. A court of equity adapts its decrees to the necessities of each case, and, should the present suit terminate in a decree against the defendants, it is easy to do substantial justice to all the parties in interest, and prevent a multiplicity of suits, by allowing the other distributees, either through a reference to a master, or by some other proper proceeding, to come in and share in the benefit of the litigation.” It is plain that what is there said by the Supreme Court is no justification whatever for dispensing with parties whose asserted interest is directly opposed to that of the complainants, for the establishment of any right in the latter takes just that much from the absent claimants. Without reference to the merits of the suit, concerning which we cannot properly indicate any views, it results that the judgment must be, and hereby is, reversed, and the cause remanded to the court below, with directions to dismiss the bill at the complainants’ cost.