Opinion by
Mb. Justice Williams,
There are two principal questions involved in this case. The first relates to the conclusiveness of the proceeding in the orphans’ court under which distribution was made by the executors of William R. White, deceased, in 1870. The-second involves the construction of the codicil to the will of the. testator. The report of the auditor shows that the testator died about the first of October, 1868,- disposing by his will of an estate amounting to more than half a million of dollars. Four of his children survived him. The fifth, a daughter, was dead; but her husband, George D. Buckley, and her son, William White Buckley, the petitioner, were living.'
The testator gave his estate to his four surviving children except the comparatively small sum of fifty thousand dollars which he directed his executors to set apart and place in the hands of some Philadelphia life insurance, annuity and trust company to be selected by them, for the benefit of his grandson, William White Buckley. The income from this sum was to be paid annually to his executors and by them disbursed for the education and care of his grandchild until he reached the age of twenty-five years, after which it was to be paid to him directly, during his natural life, with a limitation over to his children, or in default of children then over to the testator’s four surviving children and their heirs.
By a codicil to his will he directed, “ that should any attempt at law or otherwise be made during the minority of my said [398]*398grandson to withdraw his person from the charge or custody of my executors by his father or any other person, then and in such case I hereby direct my executors to suspend all further payments aforesaid, and in such case I hereby revoke all provisions for such grandson by my said will.”
The testator had been involved in business difficulties with' his daughter’s husband George D. Buckley, had come to distrust his integrity, and to regard him with positive aversion. He desired to preserve the child from what he believed would be the unwholesome influence of his father, and this feeling suggested the codicil to the will. Mrs. Buckley, the daughter of the testator, died about one year before her father, and her husband became involved in criminal proceedings in Berks county. The testator’s living children seem to have regarded their sister’s infant child as under their care, and he was removed to the home of his aunt Mrs. Borie. Soon after the probate of the will her husband was appointed by the orphans’ court guardian of the person of the child. He was therefore in the custody of his guardian and living as a member of his family. During the month of November, 1868, Geo. D. Buckley was at large and came to Philadelphia to look after his son. He made an effort to. remove him from the custody of his guardian for■cibly. Failing in this he employed an attorney and through ■him opened a correspondence with the attorney of the executors for the purpose of obtaining the possession of his child. Without any legal proceeding whatever, the executors and the guardian of his person appointed by the court, surrendered the child to his father who carried him into another state, and -thereafter retained possession of him.
In 1870 the executors filed their account, and at the request •of the four surviving children of the testator, their attorney was appointed an auditor to make distribution. The where.abouts of the petitioner and his father were known, but no notice was given to either of them of the filing of the account, •of the application for the' appointment of an auditor, of the proceedings before the auditor, or the filing of his - report. Notwithstanding this, the auditor reported that the provision made for the pótitioner in his grandfather’s will had been defeated by the conduct of his father; and that he was entitled .to no part of the same and no interest whatever in his grand[399]*399father’s estate. This report was confirmed, and distribution ordered among the four children who survived the testator.
Now the rule undoubtedly is that the judgment of a court of competent jurisdiction is conclusive of the point decided, between parties and privies, and therefore when the question is raised in any .collateral proceeding between other persons it is to be regarded as conclusive on such persons also. But the conclusive character of a judgment or decree depends not only upon the «statutory grant of jurisdiction to the court pronouncing it, but upon actual jurisdiction over the persons whose rights are the subject of investigation. Unless the court has the parties before it, by appearance or service of process, it is obvious that it cannot bind them by its adjudications. The four children of the testator appeared voluntarily with the executors of their father’s will and asked the appointment of Mr. Paul as auditor. They stated to the court that they were the only parties who had any interest in the estate. After his appointment. the auditor proceeded at once to what was the main purpose of his appointment, viz : to consider the situation of the grandson and to determine that the legacy to him had been forfeited by the attempt of his father to withdraw him from the custody of the testator’s executors. He found the fact of such attempt, and therefrom concluded as matter of law that the grandson had no further rights under the will, and reported a schedule of distribution wholly excluding him from the fund. This was confirmed without objection,' and the payments were made by the executors to the four children accordingly. This is the adjudication, and these are the payments made under it, that are' set up as conclusive against the peti- • tioner.
It will be seen from' this statement or review of the facts that the real parties in interest in the controversy before the auditor were the four living children of the' testator on one side, and his infant grandson, then about four years old, on the other. The subject of controversy was the legacy to the infant grandson contained in the testator’s will. The auditor before whom the question was to be heard was selected by one side without notice to the other.. He was the attorney of the parties selecting him, under whose advice the grandson had been surrendered to his father. He was to pronounce upon the [400]*400legal effect of a surrender which was the result of a correspondence- both sides of which were conducted under his supervision, as both the demand of George D. Buckley for his son, and the reply thereto on behalf of the executors were written by him. As an auditor he held that what he had arranged as an attorney was effective to extinguish the rights of the infant,, and vest the fifty thousand dollars provided by the will for him, in his clients ; and he awarded it to them accordingly. Neither the auditor, nor the executors, nor the children of the-testator suggested to the court that William White Buckley was an infant, and a non-resident of the state. Neither of them-asked the appointment of a guardian ad litem to represent him.. The fact of his existence was withheld from the court by the-agreement for the appointment of an auditor, and the representation that it was signed by all the parties having any interest in the estate. To enter upon an argument to prove-that such a proceeding was not conclusive upon the unrepresented infant would require an unnecessary waste of words and could add nothing to the force of a mere statement of the facts.. The character of the, parties forbids the idea that it was a scheme to divest this infant of his rights.
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Opinion by
Mb. Justice Williams,
There are two principal questions involved in this case. The first relates to the conclusiveness of the proceeding in the orphans’ court under which distribution was made by the executors of William R. White, deceased, in 1870. The-second involves the construction of the codicil to the will of the. testator. The report of the auditor shows that the testator died about the first of October, 1868,- disposing by his will of an estate amounting to more than half a million of dollars. Four of his children survived him. The fifth, a daughter, was dead; but her husband, George D. Buckley, and her son, William White Buckley, the petitioner, were living.'
The testator gave his estate to his four surviving children except the comparatively small sum of fifty thousand dollars which he directed his executors to set apart and place in the hands of some Philadelphia life insurance, annuity and trust company to be selected by them, for the benefit of his grandson, William White Buckley. The income from this sum was to be paid annually to his executors and by them disbursed for the education and care of his grandchild until he reached the age of twenty-five years, after which it was to be paid to him directly, during his natural life, with a limitation over to his children, or in default of children then over to the testator’s four surviving children and their heirs.
By a codicil to his will he directed, “ that should any attempt at law or otherwise be made during the minority of my said [398]*398grandson to withdraw his person from the charge or custody of my executors by his father or any other person, then and in such case I hereby direct my executors to suspend all further payments aforesaid, and in such case I hereby revoke all provisions for such grandson by my said will.”
The testator had been involved in business difficulties with' his daughter’s husband George D. Buckley, had come to distrust his integrity, and to regard him with positive aversion. He desired to preserve the child from what he believed would be the unwholesome influence of his father, and this feeling suggested the codicil to the will. Mrs. Buckley, the daughter of the testator, died about one year before her father, and her husband became involved in criminal proceedings in Berks county. The testator’s living children seem to have regarded their sister’s infant child as under their care, and he was removed to the home of his aunt Mrs. Borie. Soon after the probate of the will her husband was appointed by the orphans’ court guardian of the person of the child. He was therefore in the custody of his guardian and living as a member of his family. During the month of November, 1868, Geo. D. Buckley was at large and came to Philadelphia to look after his son. He made an effort to. remove him from the custody of his guardian for■cibly. Failing in this he employed an attorney and through ■him opened a correspondence with the attorney of the executors for the purpose of obtaining the possession of his child. Without any legal proceeding whatever, the executors and the guardian of his person appointed by the court, surrendered the child to his father who carried him into another state, and -thereafter retained possession of him.
In 1870 the executors filed their account, and at the request •of the four surviving children of the testator, their attorney was appointed an auditor to make distribution. The where.abouts of the petitioner and his father were known, but no notice was given to either of them of the filing of the account, •of the application for the' appointment of an auditor, of the proceedings before the auditor, or the filing of his - report. Notwithstanding this, the auditor reported that the provision made for the pótitioner in his grandfather’s will had been defeated by the conduct of his father; and that he was entitled .to no part of the same and no interest whatever in his grand[399]*399father’s estate. This report was confirmed, and distribution ordered among the four children who survived the testator.
Now the rule undoubtedly is that the judgment of a court of competent jurisdiction is conclusive of the point decided, between parties and privies, and therefore when the question is raised in any .collateral proceeding between other persons it is to be regarded as conclusive on such persons also. But the conclusive character of a judgment or decree depends not only upon the «statutory grant of jurisdiction to the court pronouncing it, but upon actual jurisdiction over the persons whose rights are the subject of investigation. Unless the court has the parties before it, by appearance or service of process, it is obvious that it cannot bind them by its adjudications. The four children of the testator appeared voluntarily with the executors of their father’s will and asked the appointment of Mr. Paul as auditor. They stated to the court that they were the only parties who had any interest in the estate. After his appointment. the auditor proceeded at once to what was the main purpose of his appointment, viz : to consider the situation of the grandson and to determine that the legacy to him had been forfeited by the attempt of his father to withdraw him from the custody of the testator’s executors. He found the fact of such attempt, and therefrom concluded as matter of law that the grandson had no further rights under the will, and reported a schedule of distribution wholly excluding him from the fund. This was confirmed without objection,' and the payments were made by the executors to the four children accordingly. This is the adjudication, and these are the payments made under it, that are' set up as conclusive against the peti- • tioner.
It will be seen from' this statement or review of the facts that the real parties in interest in the controversy before the auditor were the four living children of the' testator on one side, and his infant grandson, then about four years old, on the other. The subject of controversy was the legacy to the infant grandson contained in the testator’s will. The auditor before whom the question was to be heard was selected by one side without notice to the other.. He was the attorney of the parties selecting him, under whose advice the grandson had been surrendered to his father. He was to pronounce upon the [400]*400legal effect of a surrender which was the result of a correspondence- both sides of which were conducted under his supervision, as both the demand of George D. Buckley for his son, and the reply thereto on behalf of the executors were written by him. As an auditor he held that what he had arranged as an attorney was effective to extinguish the rights of the infant,, and vest the fifty thousand dollars provided by the will for him, in his clients ; and he awarded it to them accordingly. Neither the auditor, nor the executors, nor the children of the-testator suggested to the court that William White Buckley was an infant, and a non-resident of the state. Neither of them-asked the appointment of a guardian ad litem to represent him.. The fact of his existence was withheld from the court by the-agreement for the appointment of an auditor, and the representation that it was signed by all the parties having any interest in the estate. To enter upon an argument to prove-that such a proceeding was not conclusive upon the unrepresented infant would require an unnecessary waste of words and could add nothing to the force of a mere statement of the facts.. The character of the, parties forbids the idea that it was a scheme to divest this infant of his rights. It was doubtless the result of haste and thoughtlessness on the part of the children of-the testator, and of a mistaken confidence in his professional opinion on the part of the attorney and auditor. But whatever the fact may be as to the manner in which the proceeding was conducted, the conclusion is inevitable that it was-not such an adjudication as could conclude the infant against whom it was rendered without a hearing and without notice.. •As a settlement of the accounts of the executors it may be-conclusive, at least it is not now questioned ; but as a decree-of distribution it was a nullity so far as the interest of the petitioner is concerned.
The court below was right therefore in holding that the petitioner had a right to be heard on the subject of his interest under his grandfather’s will. This brings us to the second question, and requires us to consider the construction of the codicil to the will of the testator.
There is no doubt that the will as originally written gave to the petitioner a vested interest. If this interest has been divested it must be by virtue of the codicil in which the testator-[401]*401directs that if “ any attempt ” is made to .withdraw his grandson from the-custody of his executor by “his father or any other person ” then the provision made for him in his will shall be inoperative. The testimony shows that at the date of the codicil the grandson was in the care of Mrs. Borie. The father was then in confinement. The purpose of the codicil was to secure to the child such an education and such moral training as the father could not give him, by making it largely to the interest of both father and son that he should remain under the care of. his maternal relatives. The custody of the child was that which the testator desired to secure. If he could not control this, but the child was to go to and be reared by his father, then the testator was unwilling to make any provision for him. What then did he mean by the words “any attempt?” If he meant to include unsuccessful and abandoned attempts then it might happen that the custody of the child might continue in his executors and family, and yet all provision for his education and support be forfeited. This was not the testator’s thought. He wished to make the legacy depend on the continued custody of the child so that he might be suitably educated if he remained with his mother’s relatives. The attempt against which the testator tried to guard was not an abortive one that should leave the custody unchanged, but a successful one that should change the custody. The idea of a surrender as the result of correspondence he evidently did not entertain. We do not think the evidence or the report of the auditor shows any such attempt to withdraw the child from the custody of the executors as the testator intended to provide against; and we quite agree with the court below that if the auditor’s construction of the codicil could be sustained the condition would be void for vagueness and uncertainty. The codicil is an attempt to engraft upon the legacy to the grandson a condition subsequent, by means of which the estate of the legatee might be forfeited by the acts of persons over whom he had no control and for whose conduct he was in no sense responsible. Such conditions are not regarded with favor by the courts and will not be enforced when they can be reasonably relieved against. It is not necessary to treat the codicil as intended to operate in terrorem merely. It is enough to say that if interpreted as the auditor held it should be, so as [402]*402to include all attempts whether successful or unsuccessful, whether abandoned or defeated, whether made by the father or a stranger, it is void for uncertainty. If on the other hand it is interpreted to mean successful attempts made with force, or at the law, the evidence shows no such attempt. It shows simply a correspondence conducted on both sides under the supervision of the attorney for the executors, and a surrender of the child as the result of such correspondence. This did not, it could not, divest the vested legacy of the infant who was the subject of the correspondence and transfer it to those who through their attorney were consenting to the surrender.
The decree appealed from is affirmed, the appellants to pay the costs of this appeal.
Me. Justice Mitchell, and Me. Justice Fell dissent on the second ground, in construction of the will.
BUCKLEY’S APPEAL.
Me. Justice Williams,
Oct. 1,1894:
This appeal is from the same decree just considered in the appeal of William R. White and J. Henry Hentz, executors. The appellant contends that the orphans’ court did not go far enough in the matter of interest, and alleges that the executors should be required to account to him for the income of the legacy, given him in the will of his grandfather, from the death of the testator down to the date of the decree. The orphans’ court held him entitled to the income after he reached the age of twenty-five years, but denied his right to demand it prior to that time. This seems to be exactly in conformity with the directions of the will. The testator gave the sum of fifty thousand dollars to such life insurance, annuity and trust company of Philadelphia as his executors should designate, in trust to invest the same, collect the income therefrom, and pay it over to his executors, or so much of the same “ as my executors may deem sufficient to maintain and educate my grandson Wm. W. Buckley suitably to his relationship to me until he shall arrive at the age of twenty-five years.” After he should reach the age named the will directed the trustee to pay the income, not to the executors but to the grandson in person during the remainder of his natural life. At the death' of his [403]*403grandson the testator directed the -trustee to turn over “ the whole principal sum and whatever increase thereto there may be ” to the lawful issue of the grandson; and in default of lawful issue then over to the testator’s children living at the time of his own death and to their heirs. • Until the grandson reached the required age his interest in the income from the legacy was made to depend on the discretion of the executors. The trust was in effect a spendthrift trust in which the beneficiary, whose judgment is distrusted, is left to the care of those in whom the testator confides. The testator in this case placed his executors in his own stead and left to them the direction of the education- and care of his grandson, which had he lived he would have controlled in accordance with his own views.
The appellant has no right therefore under the terms of the will to call the executors to an account for the exercise of their discretion. What he was authorized to receive and' demand from the trustee he may ask the executors to account for because of their failure .to appoint the trustee, but the learned orphans’ court was right in holding that he had no legal claim upon the income which was not payable to him, and which the executors were empowered to use in their discretion for his maintenance and education. What rights the remaindermen may have if any, under the terms of the will, to require an account of the “ increase ” which the testator anticipated as probable, it is now not possible to determine. They are not, and cannot become, parties to this proceeding.
The appeal is dismissed at the cost of the appellant.