WASHINGTON, Circuit Justice.
This is a bill on the equity side of this court, filed by a trustee and others claiming the benefit of the trust, under the will of John Sinnick-son, deceased, against one of the heirs at law of the testator, and her husband; praying, amongst other things, an issue to be directed, to try whether the testator did, or did not, make the said will; and in case the verdict should be in favour of the will, then that the same may be carried into execution, and the trustee be decreed to be put into possession of the lands devised to him in trust to enable him to execute the trust; and that the defendant may be decreed to deliver to the trustee the deeds and muniments of title of said lands, which the bill charges to be in his possession. To this bill the defendant has demurred, and the principal question of importance arising out of the demurrer is, whether this court has an equitable jurisdiction of the cause. It is contended in support of the demurrer, that this is a case purely of a legal nature, for which a legal remedy is provided; and, therefore, that the jurisdiction belongs exclusively to the common law courts; that the substantial objects of the suit are to recover the possession of the lands mentioned in the will, which the bill charges to have been taken by the defendants, and to have the will established; both of which objects, it is insisted, may be completely attained by an ejectment at the suit of the trustee against the heir at law, or any other person holding the possession. There being, therefore, a plain and adequate remedy at law, the jurisdiction of the equity side of this court is taken away; not only upon general principles of law, but by the express provisions of the sixteenth section of the act of congress, commonly called the “Judiciary Law” [1 Stat. 82].
The whole of this argument proceeds upon the assumed ground that in every case, where a court of law is competent to afford a remedy, a court of equity cannot take cognizance of it, and grant relief; and great reliance seems to be placed upon the section of the act of congress referred to. But this is not the opinion of the court The expressions used in that section, “plain, adequate and complete,” if they affirmed the jurisdiction of the equity side of the court, might possibly admit of a construction to enlarge the jurisdiction beyond the ordinary sphere to which it has hitherto been extended; they certainly would not abridge it. But used as they are, they go no farther than to recognise and adopt the long and well established principles of the English court of chancery, upon the subject of the ordinary jurisdiction of a court of equity. Any other construction would unsettle those great land marks which have hitherto separated the two jurisdictions of the common law and equity courts; and would introduce all that uncertainty which is usually attendant upon every new system. Proceeding then upon the ground of the estab-[668]*668listed jurisdiction of the court of chancery, we know that there are a number of cases in which a concurrent jurisdiction is exercised by the two courts; and in many of them, the ground of the equity jurisdiction is not that the common law courts are incompetent to afford a remedy, but that such a remedy is less complete than the court of equity, from the nature of its organization, is capable of affording. Oases, for example, of fraud, account, dower- and partition are clearly cognizable in the common law courts; and yet the court of chancery has always exercised a concurrent jurisdiction over them, upon the ground above mentioned. Courts of law have, in modern times, and with great propriety, dispensed with profert of a lost bond; and yet, the original jurisdiction of the court of equity to grant relief by establishing the instrument, remains unimpaired. We hold it, therefore, to be perfectly clear, that where a case is otherwise proper for the jurisdiction of a court of equity, it is no objection to its exercise that the party may have a remedy at law. ' On the other hand, we do not mean to lay it down that the mere circumstance that a more complete remedy can be afforded in the former, than in the latter court, is of itself a ground of jurisdiction. The inquiry must always be, whether the case is within any of the general branches of equity jurisdiction, as claimed and exercised b3’ that court. The court has deemed it proper to make these general observations upon the equity jurisdiction of this court; not because the case under consideration rendered them necessary, but to correct what we consider to be an erroneous construction of the act of congress, referred to on this subject.
We now proceed to the more particular examination of the objection as applied to the present case. That the trustee might maintain an ejectment against the defendants, to recover the possession of the lands now in controversy, on the trial of which suit, the validity of the disputed will might, and necessarily would be decided, cannot be denied; nor does the court think it necessary to decide whether this suit were brought by the trustee alone, he would, or would not be entitled to the relief prayed for. The real plaintiffs in this cause are those who claim a beneficial equitable interest in the land devised by the will, and it will not, nor has it been denied, that the court of chancery has a clear original jurisdiction in such a case: not only so; but that jurisdiction is exclusive, the cestui que trust having no remedy at common law, either against the trustee, or against any other person holding adversely the fund, charged with the trust. It is true, as has been observed, that the trustee has a remedy at law to recover the possession, and thus to enable him to execute the trust. But are the cestui que trusts obliged to wait until this course has been pursued? They are at all times competent to assert their equitable demands, however well or ill inclined the trustee may be to perform his duty. It was not indeed denied by the defendants’ counsel, but .that this bill might have been maintained by those persons, if the trustee had been a defendant in the cause; but it seemed to be supposed, that this acknowledged equity is tainted by the co-operation of the trustee. If indeed there was any weight in this argument, the court would dismiss the bill as to the trustee; but surely it could afford no good reason for dismissing it as to the other plaintiffs, who can obtain relief no where but in equity. But there is in reality nothing in the objection. The jurisdiction of the court of chancery, upon the application of a cestui que trust, to enable the trustée to execute the trust, and to compel him to do so, stands upon the same ground. In both' cases, the trustee must be a party to the suit, either as plaintiff or defendant, in order that he may be bound by the decree, and that the cestui que trust may thereby have the full benefit of it Upon general principles, therefore, we hold the jurisdiction of the equity side of the court to be indisputable, and if so, the ground of the demurrer is removed. The bill charges that John Sinnickson made a valid will, under which the plaintiff, Josiah Harrison, claims a right to the possession of the lands devised to him for the use of those entitled to the beneficial interest in them. Th« demurrer having admitted the truth of these allegations, it is difficult to conceive upon what ground the court can dismiss the bill. The relief prayed for is to decree the defendant to deliver to the trustee the possession of the lands devised to Harrison by the will.
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WASHINGTON, Circuit Justice.
This is a bill on the equity side of this court, filed by a trustee and others claiming the benefit of the trust, under the will of John Sinnick-son, deceased, against one of the heirs at law of the testator, and her husband; praying, amongst other things, an issue to be directed, to try whether the testator did, or did not, make the said will; and in case the verdict should be in favour of the will, then that the same may be carried into execution, and the trustee be decreed to be put into possession of the lands devised to him in trust to enable him to execute the trust; and that the defendant may be decreed to deliver to the trustee the deeds and muniments of title of said lands, which the bill charges to be in his possession. To this bill the defendant has demurred, and the principal question of importance arising out of the demurrer is, whether this court has an equitable jurisdiction of the cause. It is contended in support of the demurrer, that this is a case purely of a legal nature, for which a legal remedy is provided; and, therefore, that the jurisdiction belongs exclusively to the common law courts; that the substantial objects of the suit are to recover the possession of the lands mentioned in the will, which the bill charges to have been taken by the defendants, and to have the will established; both of which objects, it is insisted, may be completely attained by an ejectment at the suit of the trustee against the heir at law, or any other person holding the possession. There being, therefore, a plain and adequate remedy at law, the jurisdiction of the equity side of this court is taken away; not only upon general principles of law, but by the express provisions of the sixteenth section of the act of congress, commonly called the “Judiciary Law” [1 Stat. 82].
The whole of this argument proceeds upon the assumed ground that in every case, where a court of law is competent to afford a remedy, a court of equity cannot take cognizance of it, and grant relief; and great reliance seems to be placed upon the section of the act of congress referred to. But this is not the opinion of the court The expressions used in that section, “plain, adequate and complete,” if they affirmed the jurisdiction of the equity side of the court, might possibly admit of a construction to enlarge the jurisdiction beyond the ordinary sphere to which it has hitherto been extended; they certainly would not abridge it. But used as they are, they go no farther than to recognise and adopt the long and well established principles of the English court of chancery, upon the subject of the ordinary jurisdiction of a court of equity. Any other construction would unsettle those great land marks which have hitherto separated the two jurisdictions of the common law and equity courts; and would introduce all that uncertainty which is usually attendant upon every new system. Proceeding then upon the ground of the estab-[668]*668listed jurisdiction of the court of chancery, we know that there are a number of cases in which a concurrent jurisdiction is exercised by the two courts; and in many of them, the ground of the equity jurisdiction is not that the common law courts are incompetent to afford a remedy, but that such a remedy is less complete than the court of equity, from the nature of its organization, is capable of affording. Oases, for example, of fraud, account, dower- and partition are clearly cognizable in the common law courts; and yet the court of chancery has always exercised a concurrent jurisdiction over them, upon the ground above mentioned. Courts of law have, in modern times, and with great propriety, dispensed with profert of a lost bond; and yet, the original jurisdiction of the court of equity to grant relief by establishing the instrument, remains unimpaired. We hold it, therefore, to be perfectly clear, that where a case is otherwise proper for the jurisdiction of a court of equity, it is no objection to its exercise that the party may have a remedy at law. ' On the other hand, we do not mean to lay it down that the mere circumstance that a more complete remedy can be afforded in the former, than in the latter court, is of itself a ground of jurisdiction. The inquiry must always be, whether the case is within any of the general branches of equity jurisdiction, as claimed and exercised b3’ that court. The court has deemed it proper to make these general observations upon the equity jurisdiction of this court; not because the case under consideration rendered them necessary, but to correct what we consider to be an erroneous construction of the act of congress, referred to on this subject.
We now proceed to the more particular examination of the objection as applied to the present case. That the trustee might maintain an ejectment against the defendants, to recover the possession of the lands now in controversy, on the trial of which suit, the validity of the disputed will might, and necessarily would be decided, cannot be denied; nor does the court think it necessary to decide whether this suit were brought by the trustee alone, he would, or would not be entitled to the relief prayed for. The real plaintiffs in this cause are those who claim a beneficial equitable interest in the land devised by the will, and it will not, nor has it been denied, that the court of chancery has a clear original jurisdiction in such a case: not only so; but that jurisdiction is exclusive, the cestui que trust having no remedy at common law, either against the trustee, or against any other person holding adversely the fund, charged with the trust. It is true, as has been observed, that the trustee has a remedy at law to recover the possession, and thus to enable him to execute the trust. But are the cestui que trusts obliged to wait until this course has been pursued? They are at all times competent to assert their equitable demands, however well or ill inclined the trustee may be to perform his duty. It was not indeed denied by the defendants’ counsel, but .that this bill might have been maintained by those persons, if the trustee had been a defendant in the cause; but it seemed to be supposed, that this acknowledged equity is tainted by the co-operation of the trustee. If indeed there was any weight in this argument, the court would dismiss the bill as to the trustee; but surely it could afford no good reason for dismissing it as to the other plaintiffs, who can obtain relief no where but in equity. But there is in reality nothing in the objection. The jurisdiction of the court of chancery, upon the application of a cestui que trust, to enable the trustée to execute the trust, and to compel him to do so, stands upon the same ground. In both' cases, the trustee must be a party to the suit, either as plaintiff or defendant, in order that he may be bound by the decree, and that the cestui que trust may thereby have the full benefit of it Upon general principles, therefore, we hold the jurisdiction of the equity side of the court to be indisputable, and if so, the ground of the demurrer is removed. The bill charges that John Sinnickson made a valid will, under which the plaintiff, Josiah Harrison, claims a right to the possession of the lands devised to him for the use of those entitled to the beneficial interest in them. Th« demurrer having admitted the truth of these allegations, it is difficult to conceive upon what ground the court can dismiss the bill. The relief prayed for is to decree the defendant to deliver to the trustee the possession of the lands devised to Harrison by the will. If the validity of the will to pass real estate be admitted by Hie heir at law, such a decree follows of course; because, having jurisdiction of the cause, the court possesses every incidental power necessary to the due exercise of that jurisdiction. If the validity of the will be denied, the course of the court is to direct an issue to be formed to try that question at law by a jury, and upon the verdict which may be found, to grant, or to refuse, the relief.
There are two minor points raised by the demurrer, which remain to be disposed of. The first is, that the bill prays an abatement of the annuity devised to the defendant, Mrs. Rowan, on a ground which the counsel for the defendants deny to be correct, and this is assigned as one of the causes of demurrer to the bill. The short, but conclusive, answer to this objection is, that, whether the annuity ought to abate or not, is'a question not .fit to be decided at this stage of the cause; and even if it were clear that the prayer is an improper one, that would not afford a ground for a demurrer to the whole bill. The other point is, that Francis Sinnickson, the son of the testator, is not made a party to the bill, and this is assigned as another cause of demurrer. The bill states that this son was. during the life of the testator, a lunatic, totally incapable of managing his affairs, and so [669]*669continued to the time of bringing this suit. That a statute of lunacy had been taken out against him, and the defendant, Thomas Rowan, appointed his committee; but no process is prayed against the lunatic. It is contended by the plaintiffs’ counsel, that this was not necessary, inasmuch as the only person who is competent to defend him, is made a party defendant in the cause. The court is. of a different opinion. A lunatic; as well as' an infant, though both are incompetent, and may be equally so to act for themselves, must, in cases where their interests are sought to be affected by the decree, be made parties to the suit; and, if as defendants, this can only be done by praying process against them. In the latter case, the court appoints a special guardian to defend him in that suit, and he answers the bill by the guardian so appointed. A lunatic, against whom process is issued, answers by his committee, under an order of the court appointing him for that purpose. If he has no committee, the court appoints some person as guardian to defend the suit,.and to answer for the lunatic. The court is of opinion that Francis Sinnickson is an essential party to this cause, being a co-heir with his sister, of the testator; that his interest can not fail to be affected by any decree the court can make. This objection therefore is well taken. But the court cannot yield to the argument which was pressed upon us by the defendants’ counsel, that, as Francis Sinnickson is stated to have been a citizen of New Jersey, the court has not jurisdiction of the cause, and that the bill ought to be dismissed; although it is admitted that he has died since the institution of the suit For although the court would not make a decree in the cause unless all proper parties were before it, yet the objection for want of parties is not to the jurisdiction- of the court, for that has been decided to be complete between the present, parties, but to the relief sought against the present defendants, without joining the other heir. Where this objection is made and sustained, the court will order all proper parties to be made; but if by the death of those parties, such an order becomes nugatory, the omission to make them parties, or the want of jurisdiction in the court to make them such, cannot warrant an absolute dismission of the bill as to the defendant properly before the court; if, when the order is asked for, the difficulty is removed by the death of those who ought originally to have been made parties. Although, therefore, the demurrer for want of parties must be sustained, the death of Francis Sinnickson -not appearing on the pleadings; yet the plaintiff will be at liberty to amend his bill by suggesting his death.
This was accordingly moved for and granted.
[In Case No. 6,140 a plea that defendants were not properly served with process was supported, and the plaintiff given leave to amend. In Case No. 0,141 an issue devisavit vel non was tried, and a verdict rendered for the plaintiff. In Case No. 6,142 a new trial was awarded.]