I think the judgment in Gedney v. Tonnele, whether it properly or improperly construed the will of John Tonnele, deceased, is binding on this plaintiff although he was unborn at the time it was rendered. While both the complaint and the judgment in that action are somewhat inartistic it is fair to say that the complaint asked construction and the judgment in fact, construed the trust provisions' of the will. The estoppel of a former judgment extends to those matters which are comprehended and involved in the thing decided as well as to those which were expressly ■ litigated and determined. (Pray v. Hegeman, 98 N. Y. 351.) A construction o.f the will was necessarily involved in reaching any conclusion and it is of no importance whether the conclusion reached was right or wrong.
That judgment was not collusive and the guardian ad litem representing the infants occupying the same relation to the will and trust estate which plaintiff when born occupied, and thus having a common interest with him, raised practically the same questions in behalf of the validity of the will and trust thereunder which plaintiff now raises in the present action.
The guardian ad litem by his brief then urged upon the court that the will should'be construed as “ a devise of each share to one of the testator’s children for life, with a remainder to his issue,” and that the provision as to not selling before 1867. was permissive and not mandatory. These are the only grounds upon which plaintiff now stands or upon which he can stand to uphold the will.
I do not understand that the principle upon which after-born cliil*702dren are bound as to their property rights by a judgment rendered prior to. their birth, depends.upon whether the person through whom they claim himself took a position in the litigation friendly to their interests. A judgment may be binding on those subsequently born, as I understand it, if there be some party connected with the litigation with a, like interest, whose claim in that regard is in good faith pressed upon the court for decision. Such is clearly the conclusion from the reasoning in Downey v. Seib (185 N. Y. 427).
In Monarque v. Monarque (80 N. Y. 320) the judgment invoked as a bar was entered upon, consent, and in McArthur v. Scott (113 U. S. 340) it was. obtained without'any Iona fide defense on the part of those with like interest. In both cases the judgments were virtual frauds, on after-born children. In ,the l&ter case of Miller v. Texas & Pacific Railway (132 U. S. 662), where it was. held that contingent remaindermen were barred by a decree made before their birth, the court took pains to. .point out that the controlling feature in McArthur v. Scott was the fact that there had been no real defense to the prior decree, relied upon as a bar:
If the action of Gedney v. Tonnele was sufficiently defended by those having an interest in common with'the plaintiff,,it-only remains-to- be considered whether the court had jurisdiction to, render the judgment. The plaintiff, Mrs. Gedney, was a cestui que trust under the apparent trust contained in the will. The only qualifying- trustee had died and the trust was without a trastee. The testator left real property apparently affected by the trust. In the absence of any trustee the execution of the trust devolved upon- the Supreme Court. That court had' inherent power to execute the trust, and might take its execution upon itself and whatever, directions it might make in the course of such execution would be binding on all parties, Kirk v. Kirk, 137 N. Y. 510; Rogers v. Rogers, 111 id. 228.) It could appoint a new trustee, but it need not if it did not choose. It made no appointment, and the cestui, que trust found real property in which she bad a qualified interest and. in which she conceived she had a greater'interest, in legal possession of the court and withheld from her by virtue of an. apparent trust.
Under such-circumstances she came into court, by action, making all living persons having any possible interest parties, and asked the court, to construe, the pretended trust by. which it held in legal cus*703tody the property of her father, the testator, and to say whether or not it was a good trust or a bad one. I think she had a right to do this, and that the court had jurisdiction to pass upon her request. Suppose she had come in by petition and asked the court to make some order respecting the trust, and the court had ordered all interested parties in being before it. Manifestly, under the above authorities, all parties would have been bound by any order thus made. That she came into court by action does not change the situation.
If there had been a trustee and he had brought an action as such trustee for the construction of the will, and all parties in being had been made defendants, concededly the judgment rendered would have bound after-born children, for the trustee would have been their representative. The same result would follow if the action had been brought by a cestui que trust, and the trustee had been ihade a party defendant and had joined in the request for a construction of the trust and direction as to his duties thereunder. (Pray v. Hegeman, supra)
I do not subscribe to the doctrine that prior to the enactment of section 1866 of the Code of Civil Procedure (which went into effect in 1880,* and hence after the judgment in question was rendered) a cestui que trust who was also an heir at law or devisee could not bring an action for the construction of a will to have an apparent trust contained therein declared void. Such an action is properly brought by one who is next of kin when the trust relates to personalty. (Read v. Williams, 125 N. Y. 560.)
Section 1866 of the Code is derived from section 1 of chapter 238 of the Laws of 1853.† That act provided that the validity of any actual or alleged devise or will "of real estate might be determined in like manner as the validity of any deed might be determined. It was expressly held in Read v. Williams (supra), where Horton v. Cantwell (108 N. Y. 255) and kindred cases are explained, that section 1866 (which- is but a paraphrasing of the law of 1853) extended the remedy by equitable action so as.to include suits for *704construction of trusts and devises brought by heirs claiming adversely to the will. I see no .practical difference between the law. of 1853 and the section of the Code in respect to the right to bring the action. There was no reason for enacting the law unless it related-to heirs and devisees who. would take the property, if the trust should be declared void.
The settling by statute of the right to bring an action to construe a will and determiné the validity of a devise of real property could only be in behalf of devisees and heirs who could take title except ■for the provisions of the will. Trustees already had the undisputed right to bring an action for the construction of the will under which they were acting, and to ask direction as to their conduct. (Hawley v. James, 5 Paige, 318, 488.) . There was no occasion, therefore, to-' enact a law in behalf of trustees, and- the law of 1853 must have related to heirs at law and devisees who would take if the trust . were swept aside. The dictum construing the act of 1853 in Bailey v. Briggs (56 N. Y. 415) as giving a right of action only for the. establishment of disputed wills, and not such a-right to the devisee or heir to construe the provisions of- a will, was expressly repudiated by the -decision in Anderson v. Anderson (112 N. Y. 104).
Kalish v. Kalish [45 App. Div. 528) held that an heir.at law claiming in hostility to the will and not included in its trust provi- - sions could not maintain an action to declare the trust void. The Court of Appeals affirmed the judgment (166 N. Y. 368), but upon other grounds, and expressly held that an heir at law could maintain such an action (page 371).
Wager v. Wager (89 N. Y. 161) and Holland v. Alcock (108 id. 312) and Horton v. Cantwell (supra) and Anderson v. Anderson (supra) and kindred cases are not to the contrary. "Each of these ■ decisions will- be found to turn on points other than the broad principle that an heir or devisee who would take if the alleged trust were void had no right to bring an action in equity to decláre the trust void. In most of them the action was by a .grantee of some devisee under the will who wanted his title confirmed because Of possible future claims. Surely in the absence of objection an heir or devisee whose title was cut off by an alleged trust and who would •take if ;the. trust were swept aside could bring such an action, and if the court entertained it the judgment which it rendered would be *705within its jurisdiction. With respect to a cestui que trust, however, which Mrs. Grednev was, even though au heir, there never was any question of the right to bring such an action. The books are full of actions brought by such plaintiffs.
. Mrs. Giedney could not induce the'trustee to bring the action nor make him a party defendant to one brought by herself because no trustee existed except the court itself in which she must bring her action if she brought any at all. She was a cestui que trust, and being an heir at law also did not disqualify her, and she had tire right to bring the action which she did and the court had jurisdiction to entertain it and plaintiff’s rights were sufficiently presented to the court by parties having a common interest with him and were properly defended, and the judgment rendered construed the will and is binding upop him, and, therefore,.conclusive, of his claims in the present action.
I, therefore, vote to affirm the judgment.
Laughlin, J., concurred.
Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.
See Code Civ. Proc. § 3356.— [Rep.
Amd. by Laws of 1879, chap. 316; rep. by Laws of 1880, chap. 345, § 1, subd. 30; Id. § 5.— [Rep.