Page:Federal Reporter, 1st Series, Volume 3.djvu/323

 left no children it would not pass according to the law of inheritanoe of the state, but was to go to all the other grand-children per capita.

The estate of the executors was, therefore, as heretofore held in this case, a qualified fee. There was no contingent remainder, because the estate was not shaped with that view. There was, we think, clearly an executory devise. Such was the manifest intent of the testator. Where that is clear it is conclusive, unless contrary to some fixed rule of law or to public policy. Its breath sweeps away, as if they were cobwebs, all technical rules, if any there be, which militate against it. The point is not material, however, in the case as now before us, and we forbear to pursue it further. Devises in trust of certain other specified lands and lots were made to Samuel F. Yinton and Sampson Mason. They ara not involved in this controversy, and need not, therefore, be more particularly adverted to. There were also small bequests to several parties not necessary to be named.

On the eighth of July, 1839, Allen C. McArthur, one of the sons of the testator, filed a bill in the court of common pleas of Ross county to set aside the will, upon the ground, among others, that the testator, Duncan McArthur, at the time of making the will, was of unsound mind and had not the requisite testamentary capacity. Ail those in anywise interested in the will, then living, were made parties and duly served with process. Guardians ad litem were appointed for the infant defendants. The guardians accepted and answered for their wards. Mrs. Effie Coons, who had been appointed executrix upon the decease of her mother, resigned, and her resignation was accepted, after the bill was filed. She gave as the reason for her resignation that the will required the three executors provided for to act jointly, and that persons could not be found who would accept the trust and give the requisite bond. Bond and Morris, the executors, had resigned, and their resignations had been accepted, before the bill was filed. Hence there were no executors before the court as parties to the bill.

Mason and Vinton answered, setting forth that they had