The objection to the title in this cause is, that the children of A. Ruden, who were in existence at the time the bill of foreclosure was filed, and who were the first devisees of the remainder in fee after the termination of the life estate of the widow, were not made parties to the suit; and that their equity of redemption was, therefore, not extinguished by the sale under the decree in that suit. This objection appears to be well taken; and the master therefore erred in reporting that the complainant could give a good title.
No estate whatever was vested in the executors in this case by the will of the testator; but they had a mere power in trust to sell and convey the estate for the purposes of the *548will. Neither did the legal title to the premises descend to the heir at law of the testator until the execution of such power; for by the terms of the will, the rents and profits of the real estate remaining unsold are devised to the widow for life, and the estate itself, if not sold by the executors, is devised to the children of his brother who may be living at the time of her death. Upon the death of the testator, therefore, the widow took a life estate in the premises, and the children of A. Iluden, who were then in esse, took vested remainders in fee, as tenants in common therein, subject to open and let in after born children ; and subject to be divested by death during the lifetime of the widow, or to be defeated by the execution of the power of sale by the executors or the survivor of them. (Doe v. Provoost, 4 John. Rep. 61. Doe v. Martin, 4 Term Rep. 39. Osbuy v. Bury, 1 Ball & Beat. 53.) Where there is a contest in chancery in relation to real estate, or where a mortgagee wishes to foreclose a mortgage, in a case where there are several future and contingent interests in the equity of redemption, it is not necessary to make every person having or claiming a future and contingent interest in the premises a party to the bill, in order to bar his right or claim, by the decree in the cause; but is sufficient, if the person who has the first vested estate of inheritance, and all other persons having or claiming prior rights or interests in the premises, are brought before the court. (Story’s Eq. Pl. 140, § 144; 182, § 198. 1 West’s Rep. 619. Ambler, 564.) The person having the first estate of inheritance, and who is in esse, appears however to be a necessary party to a bill of foreclosure, to make the decree a bar either to his right, or to the right of any contingent remainder-man who is not made a party to the suit. In the case of Gore v. Stackpoole, (1 Dow’s Rep. 31,) in the House of Lords, upon an appeal from Ireland, Lord Chancellor Eldon said, it was clear equitable law, that in order to make a foreclosure valid as against all claimants, he who had the first estate of inheritance must be brought before the court; and even then, the intermediate remainder-men for life ought to be brought before the court, to give them an opportunity to pay off the mortgage if they thought fit. (See also Coote’s *549Law of Mort. 522. Yates v. Hambly, 2 Atk. Rep. 237.) In this case, the children of A. Ruden, who were in esse at the time of filing the bill of foreclosure, had the first estate of inheritance in the mprtgaged premises, in remainder after the termination of the life estate of the widow; and not being made parties, neither they nor the children born subsequently were bound by the decree. The exception to the master’s report must therefore be allowed, with costs.
It appears by the report of the master, that it was proved before him that the estate of the decedent was insufficient to pay the several legacies charged thereon, after satisfying the debts. If such was the fact, it was unquestionably the duty of the surviving executors to sell the equity of redemption, or to release it to the mortgagees in satisfaction of their debt if the value thereof did not exceed the amount due. And as the surviving executor has not only the power but is actually directed by the will to sell the estate and pay the debts and legacies, it is probable a perfect title may still be procured by the complainant, by a conveyance of the equity of redemption by the executor; which equity is probably worth nothing beyond the amount due on the mortgage. If a perfect title to the premises can be made in that way, I will reserve the right to the complainant to make such an application on the subject as he may think proper. But as the defendants have probably sustained a serious injury by the delay, and by the inability of the complainant to give them a good title at the time when their contract of purchase should have been consummated by a conveyance, which would render it improper to compel a specific performance upon a new title now to be procured, I cannot give any further directions on the subject without affording them an opportunity to be heard, in relation to the right of the complainant to compel them to take the title if it can now be made perfect.