- c. Same—Executors.—It is not necessary that the executors should be made parties. Their title to the qualified fee they hold in trust for the purposes of the will was held by them virtute officii, and upon the acceptance of their resignations their title became ipso facto divested and passed to the heirs at law; and this although the will provided that in case of their refusal, death, or resignation, the court should fill the vacancy.
- d. Same—Estoppel by Record.—All persons concerned, whether formally before the court as parties or not, are alike concluded by the verdict.
- e. Same—Same—Unborn Devisees.—Devisees under the will not then in esse, and of course not parties, are barred as conclusively by such a proceeding as those who are living.
- f. Same—Bona Fide Purchasers.—As to the rights of bona fide purchasers without notice of any infirmity in such proceeding, quære.
- Greignon’s Lessee v. Astor, 2 How. 319, followed.
In Equity. Final hearing.
The facts appear in the opinion.
King, Thompson & Maxwell and Matthews, Ramsey & Matthews, for complainants.
Harrison, Olds & Marsh, H. F. Page, John W. Herron and McClintick & Smith, for respondents.
Swayne, C. J.This bill was formerly before us on demurrer.[1] We then expressed our views as to the will to which it relates, under the laws of Ohio, with respect to the subject of perpetuities. The demurrer was overruled. The case is now before us upon the merits. A brief resume of the facts disclosed in the record is necessary to render intelligible what we shall have occasion to say in regard to the controversy in this aspect.
Governor Duncan McArthur died on the twelfth of May, 1839. He left a will, which was duly admitted to probate on the sixteenth of that month. By the will his wife, Mary McArthur, was appointed his executrix, and William Key Bond and Presley Morris his executors. The will provided that if either refused to act, or died or resigned, the court of
- ↑ June, 1878. See 3 Cincinnati Law Bulletin, 471.
