Woodworth, J.
I have not been able, in the short space of time alloAved for considering the point presented, and the arguments and authorities on Avhich it depends, to reduce my opinion to writing. Aided, hoAvever, by the very full and learned discussions of counsel, presenting the case in almost eATery possible point 'of vierv, I have come to a conclusion perfectly satisfactory to myself; which, Avith the considerations upon Avhich it has proceeded, I Avill briefly state to the court.
Aperson having no interest cannot be a party in any court;
though it seems that a stranger may enter a caveat against the proof of a will.
The question presented for our determination is, whether the respondent, John G. Vanderheyden, was properly made a party to the appeal from the surrogate. If he was, the argument must then proceed on the merits ; if not, there is an end of this cause.
It is an elementary principle, recognized in all the hooks, that a person having no interest in the subject of dispute, cannot be a party litigant: and I am not aware of a single exception in any one of our courts, whether proceeding according to the course of the common, civil or canon law. To show the nature and universality of the rule, and illustrate and enforce it, we need only go to the doctrines of a court of equity ; where the greatest possible latitude as to parties is indulged. There, not only must the original parties have an interest; but that interest is followed in all its changes. Although an action may proceed in some cases in the name of the original plaintiff, in trust for others, on whom the interest is cast by operation of law; (11 John. 488 : )yet, in equity, even in cases of change of bankruptcy or insolvency, a bill must be filed in nature of a bill or revivor. Thus, where B. filed his bill; and, after answer, was discharged under the act for the relief of insolvent debtors; and his effects were assigned to B. who assigned to C., it was held that a bill was necessary to bring in the new parties in interest. (Harrison v. Ridley, Com. Rep. 590, and vid. 2 Mad. Ch. 1 ed. 400. 2 Vern. 548, 632.) The case in Comyn examines the subject; and shows the ground and necessity of adhering to interest as the criterion of parties. Indeed, the contrary rule would pioduce a very singular-state of things. Any stranger would be enabled to crowd our courts with business, as his curiosity, his revenge, or the spirit of litigation or gain might prompt him ; and that too without settling any right, without the court being able to do a single act personally binding on any body beyond the mere question of costs.
It is not necessary to controvert the proposition so much dwelt upon at the bar that any one may enter a caveat against the proof of a will. Admitting this to be so, I do not see [734]*734that the consequences sought to he deduced would at all follow. This caveat is a mere monitory act. It requires the Surrogate to advise the parties in interest, who will then govern themselves accordingly. They are the' only persons who can interfere beyond the caveat. The power of the stranger is limited to the act of entering it. Admitting the contrary doctrine, would result in a very strange absurdity. Suppose all the parties interested, to come in and declare themselves satisfied that the will is genuine ; is it to be tolerated that a mere stranger may drive them to the delay, vexation and expense of litigating those very rights to which no one pretends any claim; and which never can be asserted against them % The neglect to appeár and contest the will, on being duly served with a citation, works the same consequence in construction of law. It is equivalent to a confession. It appears to me that the mere stating of the doctrine contended for by the respondent, in all its extent, is enough to show its utter inadmissibility; and the only question must be whether the respondent had an interest at the time of the appeal.
The right of a party, a distributee in a surrogate’s court, farther to prosecute or appeal ceases on the birth of a posthumous child who is entitled to the estate.
I do not deem it necessary to inquire whether he had such an interest as would warrant his being a party when he commenced his proceedings in the court of the Surrogate. Admitting him to have been one of the distributees of the estate at that time, (and I think he was to be so regarded) that interest was defeasible ; and Avas in truth defeated by the birth of a posthumous child on the 16th of April, four days before the decree of the Surrogate Avas pronounced. This event changed the rights of the parties altogether. It not only divested the respondent’s right as distributee; but it appears to me it took aAvay all possibility of interest, all expectancy, unless it be a very remote one indeed. The will being out of question, all the estate, real and personal, vested in the child. To the real estate, the respondent plainly never could succeed, even on the death of the child, being an uncle of the half blood. But the real estate is not in question. The personal estate, if any, beyond the payment of debts, would pass to the next of kin. This is the mother; and on her death, it would pass to her next of kin. Her [735]*735death before that of the child; would still leave the respondent’s right of succession doubtful in law. For the purposes of this question, then, he was, at the time of pronouncing the decree by the Surrogate, a mere stranger., When his interest ceased, his right farther to litigate ceased with it. All power of appeal was, therefore, gone.
The respondent is not a proper party pro forma.
An appeal from one interlocutory order, brings up a previous one in any way connected with it tho’ the time for appealing from the first order may have expired.
Is the respondent a proper party pro forma, to vindicate the rights of others ? No such thing appears upon the record, or in any other way. It is not pretended that he is guardian to the infant, either ad litem, or otherwise. He has neither the custody nor protection of the child; and there is no rule in the books giving him a right to claim the guardianship. The uncle of the mother’s side would doubtless be preferred. Why allow the respondent to litigate under pretence of benefiting persons who have a real interest? Are we to presume them inattentive to their rights, and that the infant will be injured by their neglect? If this be so, I repeat, what right has a stranger to interfere ? The infant must seek his remedy on coming of age.
I think it follows conclusively, that the appeal should have been quashed by the Court of Chancery, when the motion was made for that purpose.
It was strenuously urged, however, by the counsel for the respondent, that it is now too late for the appellant to question the order then made; because, being interlocutory, he suffered the limitation of 15 days to pass, before his appeal was entered. This raises the question whether the appeal taken from the order awarding an issue, involves and brings up the previous one. It seems to me that that order is necessarily drawn in question. The inquiry whether there be proper parties to the litigation, runs through the whole proceeding. Not a step to be taken without them. The award of an issue, or any other order, is nugatory. They are essential to the form and constitution of the suit. This being so, the general principle was laid down in Le Guen v. Gouverneur & Kemble,
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Woodworth, J.
I have not been able, in the short space of time alloAved for considering the point presented, and the arguments and authorities on Avhich it depends, to reduce my opinion to writing. Aided, hoAvever, by the very full and learned discussions of counsel, presenting the case in almost eATery possible point 'of vierv, I have come to a conclusion perfectly satisfactory to myself; which, Avith the considerations upon Avhich it has proceeded, I Avill briefly state to the court.
Aperson having no interest cannot be a party in any court;
though it seems that a stranger may enter a caveat against the proof of a will.
The question presented for our determination is, whether the respondent, John G. Vanderheyden, was properly made a party to the appeal from the surrogate. If he was, the argument must then proceed on the merits ; if not, there is an end of this cause.
It is an elementary principle, recognized in all the hooks, that a person having no interest in the subject of dispute, cannot be a party litigant: and I am not aware of a single exception in any one of our courts, whether proceeding according to the course of the common, civil or canon law. To show the nature and universality of the rule, and illustrate and enforce it, we need only go to the doctrines of a court of equity ; where the greatest possible latitude as to parties is indulged. There, not only must the original parties have an interest; but that interest is followed in all its changes. Although an action may proceed in some cases in the name of the original plaintiff, in trust for others, on whom the interest is cast by operation of law; (11 John. 488 : )yet, in equity, even in cases of change of bankruptcy or insolvency, a bill must be filed in nature of a bill or revivor. Thus, where B. filed his bill; and, after answer, was discharged under the act for the relief of insolvent debtors; and his effects were assigned to B. who assigned to C., it was held that a bill was necessary to bring in the new parties in interest. (Harrison v. Ridley, Com. Rep. 590, and vid. 2 Mad. Ch. 1 ed. 400. 2 Vern. 548, 632.) The case in Comyn examines the subject; and shows the ground and necessity of adhering to interest as the criterion of parties. Indeed, the contrary rule would pioduce a very singular-state of things. Any stranger would be enabled to crowd our courts with business, as his curiosity, his revenge, or the spirit of litigation or gain might prompt him ; and that too without settling any right, without the court being able to do a single act personally binding on any body beyond the mere question of costs.
It is not necessary to controvert the proposition so much dwelt upon at the bar that any one may enter a caveat against the proof of a will. Admitting this to be so, I do not see [734]*734that the consequences sought to he deduced would at all follow. This caveat is a mere monitory act. It requires the Surrogate to advise the parties in interest, who will then govern themselves accordingly. They are the' only persons who can interfere beyond the caveat. The power of the stranger is limited to the act of entering it. Admitting the contrary doctrine, would result in a very strange absurdity. Suppose all the parties interested, to come in and declare themselves satisfied that the will is genuine ; is it to be tolerated that a mere stranger may drive them to the delay, vexation and expense of litigating those very rights to which no one pretends any claim; and which never can be asserted against them % The neglect to appeár and contest the will, on being duly served with a citation, works the same consequence in construction of law. It is equivalent to a confession. It appears to me that the mere stating of the doctrine contended for by the respondent, in all its extent, is enough to show its utter inadmissibility; and the only question must be whether the respondent had an interest at the time of the appeal.
The right of a party, a distributee in a surrogate’s court, farther to prosecute or appeal ceases on the birth of a posthumous child who is entitled to the estate.
I do not deem it necessary to inquire whether he had such an interest as would warrant his being a party when he commenced his proceedings in the court of the Surrogate. Admitting him to have been one of the distributees of the estate at that time, (and I think he was to be so regarded) that interest was defeasible ; and Avas in truth defeated by the birth of a posthumous child on the 16th of April, four days before the decree of the Surrogate Avas pronounced. This event changed the rights of the parties altogether. It not only divested the respondent’s right as distributee; but it appears to me it took aAvay all possibility of interest, all expectancy, unless it be a very remote one indeed. The will being out of question, all the estate, real and personal, vested in the child. To the real estate, the respondent plainly never could succeed, even on the death of the child, being an uncle of the half blood. But the real estate is not in question. The personal estate, if any, beyond the payment of debts, would pass to the next of kin. This is the mother; and on her death, it would pass to her next of kin. Her [735]*735death before that of the child; would still leave the respondent’s right of succession doubtful in law. For the purposes of this question, then, he was, at the time of pronouncing the decree by the Surrogate, a mere stranger., When his interest ceased, his right farther to litigate ceased with it. All power of appeal was, therefore, gone.
The respondent is not a proper party pro forma.
An appeal from one interlocutory order, brings up a previous one in any way connected with it tho’ the time for appealing from the first order may have expired.
Is the respondent a proper party pro forma, to vindicate the rights of others ? No such thing appears upon the record, or in any other way. It is not pretended that he is guardian to the infant, either ad litem, or otherwise. He has neither the custody nor protection of the child; and there is no rule in the books giving him a right to claim the guardianship. The uncle of the mother’s side would doubtless be preferred. Why allow the respondent to litigate under pretence of benefiting persons who have a real interest? Are we to presume them inattentive to their rights, and that the infant will be injured by their neglect? If this be so, I repeat, what right has a stranger to interfere ? The infant must seek his remedy on coming of age.
I think it follows conclusively, that the appeal should have been quashed by the Court of Chancery, when the motion was made for that purpose.
It was strenuously urged, however, by the counsel for the respondent, that it is now too late for the appellant to question the order then made; because, being interlocutory, he suffered the limitation of 15 days to pass, before his appeal was entered. This raises the question whether the appeal taken from the order awarding an issue, involves and brings up the previous one. It seems to me that that order is necessarily drawn in question. The inquiry whether there be proper parties to the litigation, runs through the whole proceeding. Not a step to be taken without them. The award of an issue, or any other order, is nugatory. They are essential to the form and constitution of the suit. This being so, the general principle was laid down in Le Guen v. Gouverneur & Kemble, (1 John. Cas. 498,) and is now well established, that “ by an appeal from any interlocutory or final decree, all the proceedings in the cause anterior to the decree are necessary to be presented to the court; and pro[736]*736per for its determination. It may frequently become indispensable to reverse, alter or modify the previous proceedings, in order to make them consistent with the decree to be pronounced.”
The costs .before the surrogate.
A mere interest in the costs gives one no right of appeal in respect to any other inatter.
The rule thus laid down is forcibly illustrated by the principal case. In deciding the question, whether there should have been an issue, we must look at the whole of it: and any ground which shows that there should not have been one may be urged. Whether the proof was satisfactory upon the depositions, is one question; and above all, whether there are any rights to be determined. The two orders appear to me to be so essentially connected, that justice cannot be done, otherwise than by considering them in one view. The doctrine on this subject was also advanced in general terms in Jaques v. The M. E. Church, (17 John. Rep. 548.) The importance of adhering to the rule may be illustrated in a variety of ways. Cases may be supposed where it is vitally essential to the administration of justice. Suppose a party should file his bill to be relieved against proceedings at law; and obtain an injunction, which is dissolved on the coming in of the answer. The case, however, eventually turns out to be a doubtful one at the hearing, as depending on a variety of facts ; and an issue is awarded. From this there is an appeal, and the issue is confirmed. Would not this court look back, and see whether the injunction was properly dissolved; and if not reverse the order of dissolution ; and direct it to be renewed by the Chancellor; in order to save the party against being stripped of the fruits of his litigation by the judgment and execution at law?
The only remaining question, respects the costs before the Surrogate. It is said the respondent has such an interest in these as entitles him to an appeal. If this be admitted, it by no means follows that we can consider the merits of the case, farther than they are connected with the question of costs. On seeing that they were improperly awarded, the decree may be reversed pro tanto. This, however, gives no rights to the respondent upon the other branch of the subject.
No decree by the surrogate as to costs.
A surrogate has no rtght to award costs on a hearing before him, as to the validity of a will.
Such an award would be coram non judice, and void.
But I confess, I can see no possible ground of objection to the decree, so far as it relates to the costs. Indeed, it cannot be called a decree affecting costs. It leaves the parties, precisely as they would have stood had there been no decree; to the question between them respectively and the Surrogate, as to what they shall pay him for his services. There is no formal decree for costs; nothing which can be enforced by execution. The Surrogate, being satisfied probably that he had no power to award costs did not intend to make any decree respecting them; and what he said in the decree was his mere ipse dixit as to his own claim. It had no more effect than if he had pronounced it on any other occasion. It is not possible to make it out a decree within the meaning of the law.
At any rate, if it be a decree in form, it cannot affect the party. The Surrogate had no authority to awaVd costs. There being a want of jurisdiction, the decree was for so much, coram non judice, and void. It could never have been enforced.
On the whole, I am of opinion that the decree of the Court of Chancery, should be reversed; and that the proceedings be remitted, to the end that the appeal from the Surrogate be dismissed from the Court of Chancery.