Mark v. Mark

9 Watts 410

Opinion

Per Curiam.

On the pleadings, the joinder of the widow was certainly a ground of decisive objection; but the joinder of the executors also, to which no exception seems to have been taken, was equally erroneous. Neither she, nor they, had a freehold in the land; nor was either competent to take a share of it by the partition. Why then join them to be idle spectators of a contest in which they could not take an active part? The widow was indeed entitled to interest in a third of the valuation, charged on the land, but she was entitled to no part of the land itself. The testator devised the estate to his executors with power to sell for payment of debts and maintenance of the widow and children till the youngest should come of age, when what remained of it, sold or unsold, was to be distributed in the proportions directed by the intestate laws, as if no will had been made. When that period arrived, the trust was at an end, and the estate reverted to the children who, by force of the will, acquired the legal title. Had the executors even retained it, they could not have legitimately been actors in a proceeding like this, because, having no legitimate interest in the sub-, ject of it, they could not have claimed a share. But the very action is founded on a supposition that their title has been divested; for while the trust existed, the children had no title which could become a subject of action among each other, or with any one else. The difficulty supposed to have been presented by the joinder of the testator’s minor son, if it were material, would be disposed of by the statute of 1807, which expressly authorises such a thing; and it is not the least remarkable circumstance, in this strange case, that such a point should have been mooted.

Judgment affirmed.