15 & 16 Vict. c. 86.

Rule 1. Any residuary legatee or next of kin may, without serving the remaining residuary legatees or next of kin, have a decree for the administration of the personal estate of a deceased person(s).

Rule 2. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person.

Rule 3. Any residuary devisee or heir may, without serving any co-residuary devisee or co-heir, have the like decree.

Rule 4. Any one of several cestuisque trust under any deed or instrument may, without serving any other of such cestuisque trust, have a decree for the execution of the trusts of the deed or instrument (t).

Rule 5. In all cases of suits for the protection of property pending litigation, and in all cases in the nature of waste, one person may sue on behalf of himself and of all persons having the same interest.

Rule 6. Any executor, administrator, or trustee may obtain a decree against any one legatee, next of kin, or cestuique trust for the administration of the estate, or the execution of the trusts (u).

Rule 7. In all the above cases the court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper, and make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs, as other parties having a common interest with him in the matters in question.

may

c. 86.

Rule 8. In all the above cases the persons who, 15 & 16Vict. according to the present practice of the court, would be necessary parties to the suit, shall be served with notice of the decree, and after such notice they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit, and they may by an order of course have liberty to attend the proceedings under the decree (v); and any party so served may, within such time as shall in that behalf be prescribed by the general order of the Lord Chancellor, apply to the court to add to the decree (x).

Rule 9. In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust (y), in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but the court may, upon consideration of the matter, on the hearing (2), if it shall so think fit, order such persons, or any of them, to be made parties (a).

(r) See also post, s. 51, p. 48. It is the constant aim of a court Parties to of equity to do complete justice by deciding upon and settling suits in Chancery. the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it. For this purpose all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice, by deciding upon and settling the rights of all persons interested, and that the orders of the court may be respectively executed by those who are compelled to obey them, and future litigations prevented. (Mitf. Pl. 190-208, and note on parties, 398-436, 5th ed.)

(s) To a suit by three out of four residuary legatees to recover three-fourths of a sum of stock, which the executors

15 & 16 Vict. had omitted to get in, and which had been transferred to the c. 86. commissioners for the reduction of the national debt, under the stat. 53 Geo. 3, c. 60, the legatee entitled to the other fourth part of the stock was a necessary party. (Hunt v. Peacock, 6 Hare, 361.) One of a numerous class of residuary legatees was permitted to sue on behalf of herself and all others entitled as residuary legatees in remainder, in the absence of the greater portion of them. (Harvey v. Harvey, 4 Beav. 215; 5 Beav, 134; Smart v. Bradstock, 7 Beav. 500.)

(t) In a suit by one or more cestui que trusts against trustees, alleging that the trust funds had been invested on improper security, and seeking to have it restored, all the cestui que trusts of the trust were hitherto necessary parties; and if the fund was held in trust for a class of persons, there must, before the cause was heard on the question between the plaintiff and the trustees, have been evidence that all the members of the class were before the court. (Phillipson v. Gatty, 6 Hare, 26.) A party entitled to a moiety of an ascertained fund could not maintain a suit for payment of his share, without making the person entitled to the other moiety a party, if, owing to a breach of trust, the whole fund was not forthcoming. (Lenaghan v. Smith, 2 Phill. C. C. 301, disapproving Perry v. Knott, 5 Beav. 293.) In a bill by one of several cestuis que trust against the devisee of the trustee of real estate, to set aside the sale of an estate, which was made to the trustee by all the cestuis que trust for one sum, and conveyed by one instrument, it was held that all the cestuis que trust were necessary parties to the suit. (Roberts v. Tunstall, 4 Hare, 261.)

(u) In a bill by a trustee against one of several cestuis que trust to recover the trust securities, the other cestuis que trust were unnecessary parties. (Bridget v. Haines, 1 Coll. 72.) A trustee may file a bill against a co-trustee to recover the trust fund without making the cestuis que trust parties. (May v. Selby, 1 Yo. & C. C. C. 235.) And in a suit instituted by the representatives of a deceased trustee for a contribution towards making good a loss occasioned by a breach of trust the cestuis que trust are not necessary parties. (Robinson v. Evans, 7 Jur. 738.) A party who was entitled to a certain aliquot proportion of a certain ascertained sum, standing in trustees' names, could file a bill to have his share transferred to him, without making the persons entitled to the other aliquot shares of the fund parties. (Smith v. Snow, 3 Madd. 10.) (v) See 27th Order, 26th Aug. 1841.

(1) See 40th and 41st Orders, 7th August, 1852.

(y) See Savory v. Barber, 4 Hare, 125; Ward v Bassett, 5 Hare, 179; Reeve v. Ricker, 11 Jur. 960.

(z) As to the effect of the words "on the hearing," see Osborne v. Foreman, 2 Hare, 656.

(a) This is an extension of the 30th Order, 26 Aug. 1841. See post, p. 45, n. (e).

XLIII. The practice of the said court of setting 15& 16Vict. down a cause merely on an objection for want of parties to the suit shall be abolished (b).

c. 86. Practice of setting down

(b) This was allowed by the Orders, 39, 40, of 26th Aug. a cause on ob

1841.

jection for want of parties abo

proceed in

presentative

may appoin

XLIV. If in any suit or other proceeding before fished. the court it shall appear to the court that any de- Court may ceased person who was interested in the matters in any suit, &c. question has no legal personal representative, it without reshall be lawful for the court either to proceed in of deceased the absence of any person representing the estate of person, or such deceased person, or to appoint some person to one. represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any, as the court shall think fit, either specially or generally, by public advertisements; and the order so made by the said court, and any orders consequent thereon, shall bind the estate of such deceased person, in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the court (c).

(c) An administration may be granted, limited to substantiate proceedings in Chancery. (1 Hagg. 93; 2 Hagg. 62; 4 Hagg. 30.) Where a pressing necessity for carrying on proceedings in Chancery is shown, the Ecclesiastical Court will grant administration limited to the filing of a bill in equity. (Woolley v. Gordon, Phill. Ec. R. 315. See Mitf. Pl. 176 -178.) The grant of letters of administration ad litem makes the grantee complete representative of the estate, to the extent of the authority which the letters purport to confer, and a decree obtained against such grantee is therefore binding upon any one who may afterwards take out general administration to the estate. (Davis v. Chanter, 2 Phill. C. C. C. 545. See Brant v. King, 1 Wms. Exors. 328; Moore v. Choat, 8 Sim. 508; Clough v. Dixon, 10 Sim. 564; Croft v. Waterton, 13 Sim. 653; Faulkner v. Daniel, 3 Hare, 199; Ellice v. Goodson, 2 Coll.)

XLV. It shall be lawful for any person claiming Creditor, &c. to be a creditor, or a specific pecuniary or residuary may summon legatee, or the next of kin, or some or one of the to show cause

executor, &c.

c 86.

why an order

for adminis

tration of personal estate

granted.

Power to judge to

order admi

such estate.

15 & 16Vict. next of kin, of a deceased person, to apply for and obtain as of course, without bill or claim filed, or any other preliminary proceedings, a summons (c) from the Master of the Rolls or any of the Vice-Chancellors requiring the executor or administrator, as should not be the case may be, of such deceased person, to attend before him at chambers, for the purpose of showing cause why an order for the administration of the personal estate of the deceased should not be granted; and upon proof by affidavit of the due service of such summons, or on the appearance in nistration of person, or by his solicitor or counsel, of such executor or administrator, and upon proof by affidavit of such other matters, if any, as such judge shall require, it shall be lawful for such judge, if in his discretion he shall think fit so to do, to make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require; and the order so made shall have the force and effect of a decree to the like effect made on the hearing of a cause or claim between the same parties; provided that such judge shall have full discretionary power to grant or refuse such order, or to give any special directions touching the carriage or execution of such order; and in the case of applications for any such order by two or more different persons or classes of persons, to grant the same to such one or more of the claimants, or of the classes of claimants, as he may think fit; and if the judge shall think proper, the carriage of the order may subsequently be given to such party interested, and upon such terms as the judge may direct.

Copy of summons to be

office of

court.

(c) See 42nd Order, 7th August, 1852, and form of summons, schedule (E).

XLVI. A duplicate or copy of such summons filed in record shall, previously to the service thereof, be filed in the record office of the said court; and no service thereof upon any executor or administrator shall be of any validity unless the copy so served shall be stamped with a stamp of such office, indicating the filing thereof; and the filing of such summons shall