A. J. WALKER, C. J.
The chancellor having dismissed the complainant’s bill for want of equity, its allegations are to be taken as true. W e shall, therefore, in this opinion, speak of and treat them as facts.
The complainant, John Shackelford, and Maria L. Turner, were married on the 25th January, 1842. The terms of a contract were agreed upon between them before the marriage, and were committed to writing. They, as [425]*425far as it is necessary to notice them in this opinion, were to the effect following: Ihe property of Maria L. Turner ivas conveyed to a trustee, to have and hold in trust for her and the child or children of the contemplated marriage. If Maria L. Turner should survive her intended husband, having issue, then, and in that event, the 'property was to vest in her and her children. Tf Shackelford should survive his intended wife, then the properly was to go to her child'or children. If there were no children of the marriage, the property was to go to Maria I. Turner, if she survived her husband; and if there were no children of the marriage, the property was to go to Shackelford, if he survived his wife. After the reduction of the terms of the agreement to writing, an alteration was agreed upon, to the effect following : That a different person shoidd be the trustee, and that in the event of Maria I. Turner’s surviving her intended husband, having issue, she should have the control of, during her life, or a life estate in, the whole property.
A person present when the alteration was assented to, agreed to procure the writing of a contract containing the terms of the agreement as altered. That person fraudulently procured a contract to be written, varying in its provisions from the agreement, and presented it for execution, as the parties were about to enter upon the performance of the marriage ceremony. The written contract was then executed, without reading it, under the belief by the parties that it corresponded with the previous agreement. The only variation of the written contract from the agreement of the parties, necessary to be here noticed, is made by the last clause, which is in the words following, to-wit: “ Should the said Maria I. die before her intended husband, leaving no heirs of her body, then, and in that case, ihe property above conveyed shall vest in and belong to her natural heirs, discharged of all trusts.”
The phrase, “heirs of the body,” in this clause, qualified by the context, clearly means children. — McVay v. Ijams, 27 Ala. 238; Isbell v. Maclin, 24 Ala. 315. The clause may, therefore, be read thus: “ Should the said Maria L. die before her intended husband, leaving no children, then, and in that case, the property above conveyed [426]*426shall vest in. and belong to her natural heirs, discharged of all trusts.” The estate vested in Maria L. Turner by the marriage-settlement was a trust estate; and the trust could not be regarded as converted into a legal estate, because the duties imposed upon the trustee are such as render it necessary to preserve and keep opeu the trust. Hill on Trustees, 232, 233, 234. The written contract directs that, in the designated contingencies, the heirs shall take the property “discharged of all trusts.” The heirs take, therefore, if they take at all, a legal estate. The ancestor’s estate being equitable, and the estate to the heirs legal; or, in other woi’ds, the two estates being of different quality, the rule in Shelley’s case does not apply, and the word heirs is a word of purchase. — 1 Fearne on Rem. 51; Keyes on Realty, 39, § 71. The limitation over to the “ natural heirs” is not too remote. — Isbell v. Maclin, 24 Ala. 315, aud authorities therein referred to.
Under the executed settlement, those persons who migíit be the collateral heirs of Mrs. Shackelford at her death, took a contingent remainder. The contingency upon which the remainder depended, under the clause above copied, was the death of Mrs. Shackelford without children, in the life-time of her husband. In the very same contingency, the property would have gone to Shackelford, under the agreement fixing the terms of the settlement. The contingency has now happened; and the conflict between the right of Shackelford under the contract actually made, and the right of the heirs under the written settlement fraudulently imposed upon the parties, arises. Shackelford asks by the bill a reformation of the written instrument, so as to make it correspond with the agreement which the parties directed to be reduced to writing, which they intended to execute, and which they thought they were executing.
[2.] The chancellor decided, that the complainant’s right to relief was lost by laches and lapse of time. A period of more than thirteen years intervened, between the discovery of the fraud perpetrated upon complainant, and the commencement of the suit; but the suit was commenced about nine months after the death of Mrs. Shackelford.
[427]*427• Equity could not permit the imputation of laches against the complainant, until it was possible for him to commence suit, in which a decree could be rendered concluding those having a direct interest against the reformation of the contract. He could not sue until there was a person in being against whom he could institute judicial proceedings. The only persons interested in the reforma tion of the deed, in the particular in which it misrepresented the intention of the parties to his prejudice, were those who, at the death of Mrs. Shackelford, might be her collateral heirs. "Who would be the collateral heirs of Mrs. S. at her death, it was impossible to know while she lived. It could not be assumed, that those who would have been her heirs if she had died at the time when the fraud was discovered, or their descendants, would be such heirs when her death occurred. Intervening deaths might, before she died, have exterminated the entire families of those who would have stood in the relation of heirs to her when the fraud was discovered. Until the death of Mrs. Shackelford, the persons adversely interested could not be known ; and it was, therefore, impossible to institute suit against them.
[3.] To the general rule, that the persons interested must be parties to a chancery suit, there is an exception, founded on the doctrine of representation. There are cases, in which parties as plaintiffs are permitted voluntarily to assume, or as defendants are involuntarily charged with, the representation of the rights of persons not before the court. One may sue on behalf of himself and others similarly situated, and a bill may be filed against some persons, on behalf of themselves and all others opposed fo the plaintiff’s claim, where the parties would otherwise be so'numerous that it would be impossible to bring them before the court. But it must be observed that, in such cases, the representation of those persons not parties, by those who are, is only tolerated where all have a common interest in the entire object of the suit, or a common interest in opposing the object of the suit. — Calvert on Parties, 41, (17 Law Library, 25 ;) ib. 43; Mayor of York v. Pilkington, 1 Atk. 284. It is also permitted, that he [428]*428wlio is entitled to the first vested estate of inheritance shall. represent those entitled in remainder or in reversion ; and it is sufficient to bring the tenant for life before the court, where those who are to take in remainder are not in esse. 1 Daniell’s Ch. Pl. & Pr. 274, 275; Story’s Eq. Pl. §§ 144, 145.
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A. J. WALKER, C. J.
The chancellor having dismissed the complainant’s bill for want of equity, its allegations are to be taken as true. W e shall, therefore, in this opinion, speak of and treat them as facts.
The complainant, John Shackelford, and Maria L. Turner, were married on the 25th January, 1842. The terms of a contract were agreed upon between them before the marriage, and were committed to writing. They, as [425]*425far as it is necessary to notice them in this opinion, were to the effect following: Ihe property of Maria L. Turner ivas conveyed to a trustee, to have and hold in trust for her and the child or children of the contemplated marriage. If Maria L. Turner should survive her intended husband, having issue, then, and in that event, the 'property was to vest in her and her children. Tf Shackelford should survive his intended wife, then the properly was to go to her child'or children. If there were no children of the marriage, the property was to go to Maria I. Turner, if she survived her husband; and if there were no children of the marriage, the property was to go to Shackelford, if he survived his wife. After the reduction of the terms of the agreement to writing, an alteration was agreed upon, to the effect following : That a different person shoidd be the trustee, and that in the event of Maria I. Turner’s surviving her intended husband, having issue, she should have the control of, during her life, or a life estate in, the whole property.
A person present when the alteration was assented to, agreed to procure the writing of a contract containing the terms of the agreement as altered. That person fraudulently procured a contract to be written, varying in its provisions from the agreement, and presented it for execution, as the parties were about to enter upon the performance of the marriage ceremony. The written contract was then executed, without reading it, under the belief by the parties that it corresponded with the previous agreement. The only variation of the written contract from the agreement of the parties, necessary to be here noticed, is made by the last clause, which is in the words following, to-wit: “ Should the said Maria I. die before her intended husband, leaving no heirs of her body, then, and in that case, ihe property above conveyed shall vest in and belong to her natural heirs, discharged of all trusts.”
The phrase, “heirs of the body,” in this clause, qualified by the context, clearly means children. — McVay v. Ijams, 27 Ala. 238; Isbell v. Maclin, 24 Ala. 315. The clause may, therefore, be read thus: “ Should the said Maria L. die before her intended husband, leaving no children, then, and in that case, the property above conveyed [426]*426shall vest in. and belong to her natural heirs, discharged of all trusts.” The estate vested in Maria L. Turner by the marriage-settlement was a trust estate; and the trust could not be regarded as converted into a legal estate, because the duties imposed upon the trustee are such as render it necessary to preserve and keep opeu the trust. Hill on Trustees, 232, 233, 234. The written contract directs that, in the designated contingencies, the heirs shall take the property “discharged of all trusts.” The heirs take, therefore, if they take at all, a legal estate. The ancestor’s estate being equitable, and the estate to the heirs legal; or, in other woi’ds, the two estates being of different quality, the rule in Shelley’s case does not apply, and the word heirs is a word of purchase. — 1 Fearne on Rem. 51; Keyes on Realty, 39, § 71. The limitation over to the “ natural heirs” is not too remote. — Isbell v. Maclin, 24 Ala. 315, aud authorities therein referred to.
Under the executed settlement, those persons who migíit be the collateral heirs of Mrs. Shackelford at her death, took a contingent remainder. The contingency upon which the remainder depended, under the clause above copied, was the death of Mrs. Shackelford without children, in the life-time of her husband. In the very same contingency, the property would have gone to Shackelford, under the agreement fixing the terms of the settlement. The contingency has now happened; and the conflict between the right of Shackelford under the contract actually made, and the right of the heirs under the written settlement fraudulently imposed upon the parties, arises. Shackelford asks by the bill a reformation of the written instrument, so as to make it correspond with the agreement which the parties directed to be reduced to writing, which they intended to execute, and which they thought they were executing.
[2.] The chancellor decided, that the complainant’s right to relief was lost by laches and lapse of time. A period of more than thirteen years intervened, between the discovery of the fraud perpetrated upon complainant, and the commencement of the suit; but the suit was commenced about nine months after the death of Mrs. Shackelford.
[427]*427• Equity could not permit the imputation of laches against the complainant, until it was possible for him to commence suit, in which a decree could be rendered concluding those having a direct interest against the reformation of the contract. He could not sue until there was a person in being against whom he could institute judicial proceedings. The only persons interested in the reforma tion of the deed, in the particular in which it misrepresented the intention of the parties to his prejudice, were those who, at the death of Mrs. Shackelford, might be her collateral heirs. "Who would be the collateral heirs of Mrs. S. at her death, it was impossible to know while she lived. It could not be assumed, that those who would have been her heirs if she had died at the time when the fraud was discovered, or their descendants, would be such heirs when her death occurred. Intervening deaths might, before she died, have exterminated the entire families of those who would have stood in the relation of heirs to her when the fraud was discovered. Until the death of Mrs. Shackelford, the persons adversely interested could not be known ; and it was, therefore, impossible to institute suit against them.
[3.] To the general rule, that the persons interested must be parties to a chancery suit, there is an exception, founded on the doctrine of representation. There are cases, in which parties as plaintiffs are permitted voluntarily to assume, or as defendants are involuntarily charged with, the representation of the rights of persons not before the court. One may sue on behalf of himself and others similarly situated, and a bill may be filed against some persons, on behalf of themselves and all others opposed fo the plaintiff’s claim, where the parties would otherwise be so'numerous that it would be impossible to bring them before the court. But it must be observed that, in such cases, the representation of those persons not parties, by those who are, is only tolerated where all have a common interest in the entire object of the suit, or a common interest in opposing the object of the suit. — Calvert on Parties, 41, (17 Law Library, 25 ;) ib. 43; Mayor of York v. Pilkington, 1 Atk. 284. It is also permitted, that he [428]*428wlio is entitled to the first vested estate of inheritance shall. represent those entitled in remainder or in reversion ; and it is sufficient to bring the tenant for life before the court, where those who are to take in remainder are not in esse. 1 Daniell’s Ch. Pl. & Pr. 274, 275; Story’s Eq. Pl. §§ 144, 145.
This doctrine of representation is predicated, in part, upon the convenience and necessity of the thing; but it is also founded upon the supposition, that the community of interest between the parties to the suit and those whom they represent, will secure a faithful representation, lienee it is, as above stated, that one party can never sue or be sued on behalf of other numerous absent parties, unless there is a community of interest in the question to be decided. And so a tenant in tail, or for life, can never represent those in remainder, or in reversion, unless there is an interest in the question common to the representative and to those represented. The “importantprinciple in favor of the doctrine is, that in the person of the” representative “ there is brought before the court one whose interest is of such a nature, as to insure his giving a fair trial to the legal right.” — Calvert on Parties, 50, 41.
If a suit should be brought, which affects the entire fee, it is sufficient to bring before the court the persons whose estates make the first inheritance ; because the suit reaches the entire fee, and affects those having the first estate of inheritance, as well as those entitled in remainder or in reversion; and there would be an identity of interest in the question between the parties before the court and those not brought before the court. — Calvert on Parties, 189. In the case of Gifford v. Hart, 1 Sch. & Lef. 408, this doctrine is treated as applicable to those cases whidh relate “to the whole estate,” and, consequently, affect alike the tenant in tail or for life, and the remainder-man or reversioner. Lord Eldon, in his opinion deciding the case of Lloyd v. Johnes, 9 Vesey, 57, distinguishes between the cases where the remainder-man is and is not bound by the decree against the tenant in tail; and allows to the decree an operation against the remainder-man in the case where the suit is not founded upon contract by the [429]*429tenant in tail, but is brought to bind the land in respect to charges created by the author of the gift, and imposing them, therefore, upon all who take per formara doni. Story’s Eq. Pl. 144, note 1, and § 147; Long v. Yonge, 2 Sim. 384; Pelham v. Gregory, 2 Eden, 521; Eagle Fire Ins. Co. v. Camlet, 2 Edw. Ch. 127; Sohier v. Williams, 1 Curtis, 497; also, authorities on this point cited for the appellants.
We find, after a most careful examination, no authority for the proposition, that a remainder-man can be affected by a litigation between one asserting a right hostile to him and the tenant of the preceding estate, when the latter had no interest whatever in the litigation. The authorities which we have adduced condemn such a proposition, andit seems irreconcilable with reason and justice. It would impose the costs and expense and responsibility of a litigation upon one having no interest in it, and no right to he affected by it. But the fault of the proposition is most striking and clear in this, that it would place at the mercy of the holder of the antecedent estate the rights of those to come after him, without affording any guaranty of good faith or diligence. An estate in remainder would be worthless, if it could be defeated by a suit with the tenant for life, in which the latter had no interest to be affected. The doctrine of representation is consistent with justice and reason and right, only when the representative has a common interest with the represented, so that the protection of his own interest will inelude the protection of the rights which he represents.
In the question of the reformation of the deed, so as to make it couvey to Shackelford the same interest which is conveyed to the heirs of Mrs. Shackelford, the tenant for life had not the slightest interest. If a suit had been brought against Mrs. Shackelford in her life-time, for the purpose of reforming the deed, so as to give the property to her husband in the contingency of her dying before him without issue, there would have been imposed upon her the burden and expense of protecting interests, with which she had no connection, and depending upon a question of no concern to her. The law would be unjust [430]*430in imposing such a burden upon her; audit would be still more unjust in divesting the rights of the remainder-men in a proceeding to which, they were not parties, either actually or by representation of their interests. The law would not have tolerated a suit for the reformation of the deed in the particular described, against the tenant for life.
Until the death of Mrs. Shackelford, there was no person against whom Shackelford could have maintained a suit, the decree in which would have concluded the persons whose interests would have been directly affected by the reformation of the contract; and laches'cannot be •imputed to him for the failure to bring an earlier suit. We decide, therefore, that the decree of the chancellor, dismissing the bill upon the ground of laches, was erroneous.
The following authorities present analogies, which sustain the argument of the foregoing opinion, and we therefore cite them: Powell v. Wright, 7 Beavan, 449-50; Story’s Eq. Pl. §§ 81, 83, 87, 130, 131, 96, 133, note 1; Goodess v. Williams, 2 Y. & C. 595; Browne v. Blount, 2 Russ. & M. 83; Grace v. Torrington, 1 Collier, 3; S. C., 2 Collier, 58; Rayley v. Best, 1 Russ. & M. 659.
The decree of the court below is reversed, and the cause remanded.