losses, all the persons having shares must be made parties to a suit brought for an accounting.1 Under the proper circumstances one may sometimes sue on behalf of himself and all the others interested, and it is not indispensable that the individuals having concurrent rights should all be joined as plaintiffs in the action.2 If, however, one or more of the parties are non-residents, and beyond the jurisdiction of the court, the rule, under such circumstances, is sometimes relaxed, and the action is allowed to proceed with those parties who are within the reach of the court and its process. The admission of this exception, or of similar ones, is not, however, a matter of absolute right; it depends rather upon the sound discretion of the court regulated by considerations of equity and justice. The heirs of a deceased partner must be parties in an action brought to sell real estate of the firm in winding up the partnership and paying the firm debts; although the land is, for the purpose of paying firm debts, treated in equity as a personal asset, yet the legal title of the heir must be divested, and to that end he must be brought in as a party.4 On the death of a partner, his personal representative may at once maintain an action against the survivors for an accounting; and when there was no real estate held by the firm as a part of its assets, so that no question can arise as to the title of any lands, the heirs of the deceased are neither necessary nor proper parties to such action.5 § 258. Another example is found in the action by a residuary legatee brought to obtain an account of his share of the residue; he must make all persons interested in the residue parties, even though their interest may be quite remote and contingent. One residuary legatee may sometimes sue on behalf of Ireton v. Lewes, Finch, 96; Moffat v. Farquharson, 2 Bro. C. C. 338. 2 Story Eq. Pl., § 166; Good v. Blewitt, 13 Ves. 397; Cullen v. Duke of Queensberry, 1 Bro. C. C. 101; Hills v. Nash, 1 Phila. 594; Wells v. Strange, 5 Geo. 22; Mudgett v. Gager, 52 Me. 541. Rokes, 53 Me. 110, 116; Fuller v. Benjamin, 23 Me. 255. 4 Pugh v. Currie, 5 Ala. 446; Lang v. Waring, 25 Ala. 625; Andrews v. Brown, 21 Ala. 437. 5 Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. 595. The following cases will show to 61 Daniell's, pp. 216, 217; Story Eq. what extent, and under what circum- Pl., §§ 89, 203, 204; Parsons v. Neville, 3 stances, the rule has been relaxed: Story Bro. C. C. 365; Cockburn v. Thompson, Eq. Pl., § 78; Darwent v. Walton, 2 Atk. 16 Ves. 328; Brown v. Ricketts, 3 Johns. 510; Walley v. Walley, 1 Vern. 487; Ch. 553; Davoue v. Fanning, 4 Johns. Towle v. Pierce, 12 Metc. 329; Vose v. Ch. 199; Pritchard v. Hicks, 1 Paige, Philbrook, 3 Story, 335; Lawrence v. 270; Sheppard v. Starke, 3 Munf. 29; all others interested. Also in a suit by next of kin or distributees against the administrator for an account, all of the next of kin or distributees must be parties, naturally as plaintiffs, but if not, then as defendants. This is the established equity rule prior to or independent of any changes made by statutes.2 These instances of distributees and residuary legatees thus given are in fact particular cases of a more general rule in reference to actions which have for their object, in whole or in part, an accounting by the defendant, which may be stated as follows: When the persons assert the claim to an account as a portion of a class entitled under a general description, all the members of that class, or all the individuals included under that general description, must be before the court; if not among the original parties to the suit, they must be brought in before the final hearing, so that the rights of the entire body can be determined in one decree, and the defendant relieved from the possibility of a multiplicity of actions. Primarily, all these persons being interested in the account adversely to the defendant, they should all be made coplaintiffs; but, as has often been observed, the rules of equity do not demand this strict distinction between plaintiffs and defendants, and they are satisfied if all the individuals, besides the one actually instituting the suit, are placed among the defendants. It is also often possible, when the class is numerous, that one should sue on behalf of all the others. This general rule is West v. Randall, 2 Mason, 181, 190-199; 1 Kettle v. Crary, 1 Paige, 417, 419, 420; Ross v. Crary, 1 Paige, 416; Hallett v. Hallett, 2 Paige, 15, 19; Egberts v. Woods, 3 Paige, 517. 21 Daniell's, pp. 217. 218; Story Eq. Pl., § 89; Hawkins v. Hawkins, 1 Hare, 543, 546; Noland v. Turner, 5 J. J. Marsh. 179: West v. Randall, 2 Mason, 181, 190; Kellar v. Beelor, 5 Monr. 573; Oldham v. Collins, 4 J. J. Marsh. 50. See Petrie v. Petrie, 7 Lans. 90. Where land and personal property had been conveyed to a trustee upon certain trusts for a beneficiary, and the trustee had died, and all his estate, including the trust-estate, had been distributed to his heirs and next of kin, and the beneficiary had also died, an action was held properly brought by the administrator and heirs-at-law of the latter against the heirs and next of kin of the deceased trustee for an accounting and settlement of the trust, a payment of the personal property, and a conveyance of the land; the administrator was properly made a plaintiff, because he represented the personal estate of the beneficiary ; and the heirs, because they succeeded to his real estate. Richtmyer v. Richtmyer, 50 Barb. 55. most comprehensive in its practical application, and must be invoked in a very large number of cases which have little external resemblance; it was well established both in England and in this country as a doctrine of equity procedure, but has of late years been much modified and relaxed in England by statutes.1 § 259. There are some exceptions, however, to the foregoing rule which requires all persons interested in the result of an accounting to be made parties. When some of the individuals who were originally interested have been already separately accounted with and paid, they need not be made parties to the suit. And when the accounts and shares of the different persons have been kept entirely separate and distinct from each other, so that neither one is interested in that of the others, although all relate to the same adventure or undertaking, there need be no joinder of all. And where persons are each entitled to a certain fixed portion of an ascertained sum in the hands of a trustee, each may sue for his own share without joining his co-beneficiaries. The distinction here referred to is important, and should be stated more fully, as follows: If a trustee holds a fund which he is bound to distribute to different beneficiaries in unequal proportions, and the proportionate share of each has not yet been ascertained, all the persons who are interested in the distribution are necessary parties to an action brought to enforce the trust; but where the proportionate share of each beneficiary has been definitively ascertained by a proceeding binding on the trustee, each is entitled to demand payment of the share belonging to himself, and when the payment is withheld he may maintain a separate action for its recovery. The liability of the trustee to each is then exactly the same as though the sum ascertained to belong to him was the only sum which the trustee had received and had been directed to pay.5 When a person 1 See 1 Daniell's, p. 217; Story Eq. Pl., § 90. See Baptist Church v. Presbyterian Church, 18 B. Mon. 635; Hutchinson v. Roberts, 67 N. C. 223. D'Wolf v. D'Wolf, 4 R. I. 450; Beauchamp, 5 Dana, 70 * Weymouth v. Boyer, 1 Ves. 416; Hills. Nash, 1 Phil. 594, 597; Brown v. De Tastet, Jac. 284; Bray v. Fromont, 6 Mad. 5. 1 Daniell's, p. 219; Story Eq. Pl., §§ 207 a, 212; Perry v. Knott, 5 Beav. 293; Smith v. Snow, 3 Mad. 10; Hares v. Stringer, 15 Beav. 206; Lenaghan v. Smith, 2 Phil. 301; Hunt v. Peacock, 6 Hare, 361. 5 Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168, 176, per Duer J.; Walker v. Paul, Stanton's (Ky.) code, p. 37. A fund had been devised to a trustee for the benefit of the superannuated preachers of a certain" conference." It was held that the superannuated preachers of that body jointly interested 'in the account is out of the jurisdiction, the cause has sometimes been allowed to go on without him as a party.1 § 260. I shall now briefly describe some of the most important special applications of the foregoing general principles in relation to community and concurrence of interests. As a result of these principles, it is a general rule, with but few well-defined exceptions, that trustees cannot alone maintain actions relating to the trust property, but the beneficiaries must also be made parties to the suit in some form, either as coplaintiffs with the trustees or as defendants.2 The following are simple illustrations of this general doctrine. Where trustees in trust to sell lands brought an action against the purchaser at their sale to compel a specific performance of their contract of purchase, it was held that the cestuis que trustent of the purchase-money must be made parties.3 Again, where the trustees of a numerous unincorporated society brought an action to compel the specific performance of an agree ment entered into by themselves for the benefit of the association, it was held that the members of the society should be joined, or, if they were too numerous, then some of them ought to be made coplaintiffs, suing as representatives on behalf of the others. There are, however, as already stated, certain well-defined exceptions to this general rule requiring trustees and cestuis que trustent to be joined in suits concerning the trust property, of which the following are the most important: (1) When trustees appointed to sell lands are expressly authorized by the deed of trust to sell in their own names, and it is further expressly provided in such might unite in an action to enforce the trust for their own benefit and that of future persons entitled under it. Baptist Church v. Presbyterian Church, 18 B. Mon. 635. 1 Story Eq. Pl., §§ 78, 89; West v. Randall, 2 Mason, 196; Vose v. Philbrook, 3 Story, 335; Lawrence v. Rokes, 53 Me. 110; Mudgett v. Gager, 52 Me. 541. 21 Daniell's, pp. 220-224; Story Eq. Pl., §§ 207, 209; Covington, &c. R. R. v. Bowler's Heirs, 9 Bush, 468; Western R. R. v. Nolan, 48 N. Y. 513; Large v. Van Doren, 1 McCarter, 208; Stilwell v. McNeely, 1 Green Ch. 305; Van Doren v. Robinson, 1 C. E. Green, 256; Malin v. Malin, 2 Johns. Ch. 238; Fish v. How land, 1 Paige, 20; Schenck v. Ellingwood, 3 Calverley v. Phelp, 6 Mad. 229. deed that their own receipt of the price shall be a complete discharge to the purchaser, it is settled that they may maintain a suit to compel a specific performance against the purchaser without joining the cestuis que trustent with themselves as parties.1 (2) In some special instances, where the interest of the beneficiaries was simply collateral to the rights of the trustee against the defendant, the trustee has been permitted to sue alone.2 (3) And in suits between the trustees themselves, brought by one to compel the other to account for and restore trust property misappropriated by him, the beneficiaries need not be made parties. But if the cestuis que trustent have concurred in the breach of trust, they must be joined in the suit brought by one trustee against his co-trustee to repair the fault.1 § 261. (4) The most important exception by far, as well as the most familiar one, is the case of executors and administrators; they can always sue alone, without joining the legatees, distributees, creditors, or other persons interested in the estate, as parties either plaintiff or defendant. The legal title to the personalty is so completely vested in the executors and administrators, that, both in law and in equity, they are considered as fully representing the rights and interests of all the other persons who have ultimate claims upon such estate as legatees, distributees, or creditors. In all actions, therefore, relating to the estate, they sue alone. This rule is fully established in equity as well as at law. All the acting executors or administrators must join; but if a portion only have proved, the others need not be made parties, although they may not have formally renounced. It is not indispensable, how 6 1 See 1 Daniell's, pp. 221, 222, and Hare, 313; Smith v. Bolden, 33 Beav. cases cited. 2 As, for example, in Saville v. Tancred, 1 Ves. Sen. 101; 3 Swanst. 141; Story Eq. Pl., § 221. Story Eq. Pl., § 213; Franco v. Franco, 3 Ves. 77; Bridget v. Hames, 1 Coll. 72; May v. Selby, 1 Y. & C. 235; Horsley v. Fawcett, 11 Beav. 565; Peake v. Ledger, 8 Hare, 313; 4 De G. & S. 137; Baynard v. Woolley, 20 Beav. 583; Allen v. Knight, 5 Hare, 272, 277; Cunningham v. Pell, 5 Paige, 607. But see Chancellor v. Morecraft, 11 Beav. 262. 4 Jesse v. Bennett, 6 De G., M. & G.609. $ 1 Daniell's, p. 224; Jones v. Good 262. It has been held that an administrator, suing in equity to recover assets of the estate, may join the distributees as coplaintiffs; that such uniting of parties, though not at all necessary, is not improper. Richardson's Administrator v. Spencer, 18 B. Mon. 450. An administrator may maintain an action to set aside transfers of his intestate in fraud of creditors, since he represents the creditors as well as the deceased. Cooley v. Brown, 30 Iowa, 470, 473, 474. 61 Daniell's, p. 226; Offley v. Jenney, 3 Ch. Rep. 92; Cramer v. Morton, 2 Molloy, 108. 7 Davies v. Williams, 1 Sim. 5; Dyson child, 3 P. Wms. 33; Peake v. Ledger, 8 v. Morris, 1 Hare, 413; Rinehart v. Rine |