Edmondson and wife vs. Dyson. larges the estate to the heirs. And yet the authorities as we shall see, make this very act of conveying, the test, or one of the principal tests, of an executory trust. Thus Chancellor Kent defines the characteristics of an executory trust: "When the testator devises the legal estate, he takes upon himself to order the limitations, and the rules of law will control them. But when the will or settlement is in the light of a set of instructions merely for the purpose of a conveyance to be made by the directions of chancery, a court of equity will follow the instructions and execute the trust in conformity with the instructions." 4 Kent, 218. Again: "It is settled that the same construction ought to be put upon, and the same rule of law applied to, words of limitation in cases of trusts and of legal estates, except where the limitations were imperfect and something was left to be done by the trustee, or in other words, except the trust was executory and not a trust executed." 4 Kent, 219. Jarman on Wills, and Hill on Trustees, make an executory trust to depend upon something to be done by the trustee, and the latter writer instances that something to be, a conveyance. Jarm. Wills, 252; Hill Trustees, 333. I should remark as explanatory of some of the authorities, that the rule settled is the same, whether the act to be done is directed to be done by the trustee, or is left to a court of chancery. To this intent, the agency of the court and of the trustee is the same. And this is a convenient place to remark, that if the property in this case had been left in trust to John H. Dyson, to Rakestraw for life, and remainder in fee to his heirs at law, there could be no doubt about its then being an executed trust and the rule in Shelley's case would apply to and control it. But such are not the terms of limitation; the property is left in trust with Dyson to be conveyed to the heirs at law of Rakestraw. Now here is something left to be done by the trustee, and that something is a conveyance, which brings the case to that direct test to which I have before referred, to wit, the rule in Shelley's case not being applicable to executory trusts; and whether a trust be executed or executory, depending upon something being left to be done by the trustee, and that thing to be done, being in this case, a conveyance; does the direction to convey make this an executory trust? I have not found in the laborious investigation which I have been compelled to give this subject, a single case where a conveyance was required to be made, however merely formal it might appear to 1 Edmondson and wife vs. Dyson. which has been determined to be an executed trust. On the contrary, there are many cases where such conveyance has been required that have been held executory trusts. In addition to the elementary authorities already cited, I shall now refer to some adjudicated cases, which I conceive sustain the judgment of this court. In the case of The Earl of Stamford vs. Sir John Hobart, 1 Brown Parl. Cas. 288, the question of executory trust or not, was made, and determined in the affirmative; and so determined upon the ground that the completion of the trusts required a conveyance. The case was carried to the House of Lords, and the decision there confirmed. I cannot better present the view taken of this case than by transcribing Mr. Fearne's commentary upon it. "The chancellor, (says he,) introduced his decree by declaring that, in matters executory, as in case of articles, or a will directing a conveyance, &c. the court would order the conveyance to be made as would best answer the intent. And the argument in support of that decree in the House of Lords, refers to the practice of courts of equity upon executory articles, in prospect of future conveyance to be afterwards made, and the presumed ground for extending it to the case of a will, where the same was only executory by a conveyance to be made. Hence we understand that by executory trusts in wills were meant those where, as in articles, the completion of them is referred to a conveyance or settlement, directed to be made by the testator in contradistinction to those trusts in which no such executory medium is referred to." This case is not one of those in which the rule in Shelley's case was excluded, because the final limitation was preceded by a term of years, and not by a life estate; yet it is high authority for the position we take, that a direction to convey makes an executory trust. From the case itself Fearne infers what is meant by executory trusts in wills; and what is his conclusion? why that by executory trusts in wills is meant, those where the completion of them is referred to a conveyance or settlement directed to be made by the testator, in contradistinction to those trusts in which no such executory medium is referred to. Is not the test, here recognised, the conveyance? I need not pause to apply this authority to the case before this Court. The application is so easy that any one can make it. In Papillon vs. Voice, 2 Pr. Wms. 471, the same view is taken of an executory trust. This case of Papillon vs. Voice is selected by Chancellor Kent to illustrate the difference between a trust executed and executory. 4 Kent 219, note. Edmondson and wife vs. Dyson. In Glenarky vs. Bossville, Cas. Temp. Talb. 3, Lord Talbot said: "In cases of trusts executed, or immediate devises, the construction ought to be the same, for there the testator did not suppose any other conveyance would be made. But in executory trusts he left something to be done, the trusts to be executed in a more careful and accurate manner." In Bagshaw vs. Spencer, Collectanea Juridica, 378, the Master of the Rolls said: "That in Lord Glenarky vs. Bossville, and Roberts vs. Dixwell, the lands were devised to trustees to convey, which made it executory." Here we find the distinction between trusts immediately declared and trusts to be raised in future by a conveyance, recognised as the distinction between trusts executed and executory. 1 Fearne, 139. In Austin vs. Taylor, Ambl. R. 378, the distinction is plainly stated, and still is the same. The Lord Keeper is reported as saying, "that in the case of imperfect trusts only, that court could make a different construction from a legal limitation, that in the principal case there was no reference to trustees, &c. Nothing was left to them to be done, but to buy the land, the testator had declared the uses of the land when purchased, and he did not believe the testator intended the trustees should make a conveyance of it. That in Papillon vs. Voice, the trustee was directed to convey and settle. The true guide was, that where the assistance of the trustees, which was ultimately the assistance of the court, was prayed in aid to complete a limitation-in that case the limitation in the will not being complete-it was sufficient declaration of the testator's intentions that the court should model the limitations," &c. In concluding his survey of the English cases upon this subject, Mr. Fearne remarks as follows: "thus appears to rest the distinction between trusts executed and executory, or those where the trusts are directly and wholly declared by the testator to attach on the lands immediately under the will itself, and those which are only directory, or prescribe the intended limitations of some future conveyance or settlement directed to be made by the will, for the effectuating them. A distinction which has run with a pretty strong current though the several cases affording subject matter for its application." 1 Fearne, 143. I quote freely from Fearne, because his authority is established in all the courts of Great Britain and America, and because his treatise on remainders is the fountain from which spring all the streams of later learning. Let us pause here for one moment to inquire whether the trust to the heirs at law of Gainham L. Rakestraw, is wholly Edmondson and wife vs. Dyson. declared under this will? Is the trust to them wholly declared if they cannot immediately take under the will itself? We think it is not. They do not take immediately under the will; if they did they could bring trover and ejectment for the property. They take mediately under the will and immediately under a conveyance from John H. Dyson the trustee, whether executed voluntarily, or in obedience to a decree in chancery. If they take immediately under the will why are these complainants here? why this bill in chancery? Something has been left to be done by the trustee, he refuses to do it, and because of that refusal they invoke the aid of this court. Is not that trust executory, where the refusal of the trustee to do an act which he is instructed by the testatrix to do, arrests the intent of the testatrix and withholds her bounty from its appointed objects? The proposition is self-evident. I shall refer to only one more decision before I bring this opinion to a close, and that is the decision made in New York in Wood vs. Burnham by Chancellor Walworth; I refer to this case with confidence, as in its facts, reasoning, and judgment, sustaining the view we have taken in the case before us. The chancellor reviews learnedly the cases, particularly with reference to the inquiry what makes an executory trust, and concludes with these words: "The principle must therefore be considered as settled, that wherever there is an executory trust to be carried into effect by a conveyance from the trustees, if it is apparent from the instrument creating the trust that the testator or donor intended that the first taker should have a life estate only, and that his heirs should take a remainder in fee as purchasers, this court will direct such a conveyance to be made as will most effectually carry into effect such intention, so far as it can be done consistently with legal rules." 6 Paige R. 520. From all of which it appears to me manifest, that courts of equity, whether with or without sufficient foundation for the act in principle, will take to themselves jurisdiction in case of wills, from the fact that the testator has directed a conveyance to be made by a trustee; will from that fact declare a trust executory in contradistinction to executed; will defeat in such a case the rule in Shelley's case in favour of the intention of the testator, by decreeing a conveyance in pursuance of his intention. It is, therefore, the opinion of this Court that these complainants are entitled to take as purchasers under Mrs. Rakestraw's will, and not as heirs in course of administration; that the Court below erred in sustaining the demurrer to the bill, and that its judgment thereon be reversed. Kenan & Rockwell vs. Miller. No. 48.-KENAN & ROCKWELL, plaintiffs in error vs. JOHN J. MILLER, defendant in error. [1.] To a bill for relief and injunction against plaintiffs in execution, issuing upon a common law judgment, their attorneys, against whom no fraud is charged, nor relief sought, ought not to be made parties. [2.] If a complainant in equity has been before a competent tribunal at law, which has given judgment against him, that judgment, unless reversed, is conclusive upon him in the other forum, even as to matters of defence which he might have presented, but neglected to introduce at the proper time; and that, too, notwithstanding the decision disallowing his plea was erroneous. In Equity. From Baldwin Superior Court. February Term, 1847. Judge MERRIWETHER presiding. This was a bill in equity for relief and injunction against the plaintiffs in error, as attorneys at law, with several other persons their clients, and also the sheriff of Baldwin as defendants, to which the plaintiffs in error filed a demurrer upon several grounds. The facts stated in the bill, and the grounds of demurrer, with the decision of the Court below, which was excepted to by the plaintiffs in error, being fully set forth in the opinion delivered by the Supreme Court, it is deemed unnecessary to state them here. KENAN & ROCKWELL, pro. per. The plaintiffs in error, in their own proper persons, filed the following assignment of errors: First. That Kenan & Rockwell, as attorneys, were improperly made parties in said suit. Because, first, it does not appear from the said bill that they have any interest in the subject-matter of said suit. Second. Because no discovery of any of the matters and things charged in said bill is sought from them, nor is any relief prayed against them in the premises. Second. That complainant (defendant in error) is too late in filing his bill after judgment. Third. That he has an adequate remedy at law. And submitted in support of their said assignment the following brief of points and authorities: First. No person ought to be made a party to a suit in equity who has not an interest in the object of it. And this rule applies not merely to bills for relief, but also to bills for discovery in aid of |