Page:Federal Reporter, 1st Series, Volume 3.djvu/328

 virtute officii. Steele v. Warthington, 2 Ohîo, 182; Gandolfo v. Walker, 15 Ohio St. 251; Perkins v. Moore, 16 Ala. 9; McBurney v. Carson, 99 U.S. 567.

Under the statute of Ohio, when the resignation of the executors was accepted, their title became ipso facto divested and passed to the heirs at law. Pitcher’s Adm’r v. Reese, 6 Ohio, 419; Tiffany on Trusts, 535; Hill on Trustees, 225. Thus both the trust estate created by the will and the legal title, as respects the executors, were as completely before the court as if the original executors had been parties as such to the record. In the most technical view of the subject what more could be required? When the will fell the trust estate fell with it, while the legal title remained where it was then vested. If the will had been sustained it would have been the duty of the court to appoint new executors. As that contingency did not arise such action was not necessary.

The views we bave expressed render it unnecessary to consider the defence relied upon by some of the defendants—that they are bona fide purcbasers. We will, however, say on that subject that if this were the turning point of the case it would receive our most careful consideration, and if we overruled it it would be done only in obedience to an irresistible legal necessity, if such should be found to exist. A stronger natural equity than that presented by these defendants can hardly be imagined.

But our attention has been called by several of the eounsel for the defendants to another ground of objection to the bill, upon which we prefer mainly to rest our decision. It is that the decree setting the will aside, cannot be attacked collaterally, and that if it be assailed the assault must be made in a proceeding had directly for that purpose. Adjudications of the supreme court of the United States are numerous and strong upon the subject. We will advert briefly to a few of them.

In Voorhes v. The Bank of the U. S. 10 Pet. 449, there had been a sale of land under the foreign-attachment law of Ohio. The action was ejectment for the premises, the plaintiff claiming under the vendee. The objections to the sale are thus