Page:Federal Reporter, 1st Series, Volume 7.djvu/26

 14 ISSOEBAL BKPOBTEB. �trustiee to sell the whale premises, because the interest was an nndivided one. Tbis is only material so far as it shows that in this decree, which, we «nust presume, was prepared by the consent of all the parties before the court, the sale was treated as a judicial sale by the court and parties, and net as a sale made exolusively under the powers of the trust deed, further than the court saw fit to adopt those powers and terms. �In this respect the ease comes clearly within the case of Swift V. Smith, decided by the supreme court of the United States ai the present tema, -which expressly holds that the sale was a judicial sale, although condncted and made bj the master in chancery of the court, who was appointed a trustee by the decree ; yet, at the sam« time, it was to be made according to the terms contained in the trust deed. If this was a judicial sale, I hardly need cite authorities to show that the owners of the fee, burdened with the iudebtedness which the complainant sougbt to make out of this real estate, were necessary parties to the suit. But it is urged that eqnity rule 49 dispenses with the necesaity of making these devisees parties to the record. Thiti rule reads as follows: "In all suits conceming real estate, which is vested in ttns- tees by deviee, and snch trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds or the rents and profits, in the same manner and to the same extent as the executer or administrators in suits concerning Personal estate represent the persons beneficially interested in such Personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits^ parties to the suit, but the court may, upon consideration of the matter upon the hear- ing, if it sbali so think fitj prdef such persons to be made parties." �The question, then, in this case is, was the fee of this land vested in the executor, so as to make this rule applicable? The will certainly does not vest it in the executor by its ��� �