Page:Federal Reporter, 1st Series, Volume 3.djvu/327

 (Miss.) 148; Jacobs v. Pulliam, 3 J. J. Marshall, 200; Hodges v. Bauchman, 8 Yerg. 186; Wells’ Will, 5 Littell, 273. These references are sufficient for the purposes of this opinion.

It is a settled rule of law that where there are contingent limitations and executory devises to persons not in being, a suit may proceed against those in being holding the prior estate, and that a judgment or decree against the latter binds the former in all respects as if they were in esse and parties to the suit. Especially is this so when the former are before the court by representation—that is, where the rights and interests which those not in esse would have if then in esse are the same with those of parties in being and before the court. Gifford v. Hort, 1 Sch. & Lef. 408; Story’s Eq. Pl. §§ 145, 792; Mead v. Mitchell, 17 N. Y. 210; Baylor’s Lessee v. Dejarnette, 13 Gratt. 152; Falkner v. Davis, 18 Gratt. 651; Powell v. Wright, 7 Beav. 444–449; Lorrillard v. Costar, 5 Paige, 172; Palmer v. Flower, 1 Moaks, 664; Bossuet v. Moxon, 13 Moaks, 716; Wills v. Slade, 6 Vesey, 498; Lloyd v. Johns, 9 Vesey, 37-52.

The rule springs from necessity. It involves the welfare of society, and rests on a solid foundation of reason and justice. If it were otherwise the long delay attending the settlement of rights of property in such cases would always be attended with inconvenience, and, not unfrequently, would bring in its train ruinous consequences.

Nor was it necessary executors should be parties. There was nothing for them to do. It was no part of their duty to interfere in the litigation. If they had done so they would have been entitled to no compensation for themselves or their counsel. Andrews’ Ex’rs v. His Adm’r, 7 Ohio St. 143.

When an executor has not qualified he need not be made a party. 2 Dan’l, Ch. Pr. 252.

It is a general rule that no one need be made a party against whom there can be no decree. Barb. on Parties, 457. The law never requires a vain thing.

Looking at the face of the will we are satisfied that the executors were intended to hold and did hold their title