dissenting:
Walter L. Newberry died in 1868, leaving a widow and two unmarried daughters. By his will he placed the body of his estate in the hands of trustees, to hold until the death of the last survivor of these three persons, for the purpose of distributing the whole net income annually,—$10,000 to the widow, and the residue to the daughters, or to the survivor thereof. The widow refused to take what was offered to her under the will. The trustees paid the whole income, annually, to the daughters, until one of them died childless, and from that time they paid the whole of the income to the surviving daughter, until her death in 1876. The will directed that immediately after the death of the last of these three life tenants the trustees should divide the estate into two equal shares, and distribute and apply the same. The widow still lives. The nephews and nieces filed their bill against the trustees, claiming that by the words of the will the division was to take place at the end of the last of the three life estates. The trustees refused to divide, and insisted the time for division was at the end of the natural life of the last of the three life tenants. The circuit court took the view of the original complainants, and ordered an immediate division and distribution. The trustees appealed to this court, and on February 2, 1880, this court reversed the decree, holding the time for division, under the will, had not arrived, and would not arrive until the natural death of the widow, and remanded the case to the circuit court for further proceedings in accord with that view. The Attorney General was not, thus far, a party to these proceedings, nor did any one pretend to represent the interest of the public in having the immediate enjoyment of the charity,—of a free public library. When the case came back to the circuit court, the original complainants, on leave, amended their bill, making the Attorney General a party. He answered, and then filed a cross-bill against the original complainants, and against the trustees, insisting that the time for division came in 1876, when the last daughter died, and inasmuch as this court had otherwise decided when he was not a party, he claimed a hearing on that question, de novo, and to that end that the judgment of this court in that regard be set aside, and the whole subject be heard anew. The circuit court, on hearing, dismissed the original bill and cross-hill. From this decree the Attorney General appeals to this court, and the original complainants also appeal.
I agree with my brethren in holding that the original complainants can not be permitted to insist that the decision of this court, of February 2, 1880, was erroneous. They had their day in court on that question, and unless, for the sake of other parties, that judgment be set aside, the original complainants must abide that determination of that question. The "public, who are the beneficiaries of the charity providing for a free public library, however, have, in my judgment, never had their day in court, and that public have a right now to be heard on that question, and to have the same considered anew, in the same manner as though no such decision had been made. The Attorney General is the legal representative of that public.
In considering this question I assume that decision to be erroneous. The question must be considered, in view of the fact shown by'the record in this case, that after the rendering of the judgment which is relied upon as precluding further consideration, a majority of the judges constituting this court became convinced that the judgment in question was erroneous, and so regard it now. Unless, therefore, there is some clear and well established rule of law which forbids the reconsideration of the questions passed upon in 99 111. supra, these questions ought to be reconsidered, that the correct rules of law may be applied.
For the purpose of this discussion let it be assumed that the original complainants are barred by the judgment of this court, supra, of February 2, 1880. I take the ground that neither the public, nor the Attorney General, who represents the public, are bound by that decision. Neither the public nor the Attorney General were at that time a party to the litigation, either in person or by representation. In fact, no such judgment should have been rendered without the Attorney General as a party to the record. He was, in my judgment, an indispensable party. If so, he was not bound by the judgment as res judicata. Nor do I think one single judgment should be regarded as a matter controlling as stare decisis. I can not perceive that, in such case, there would be any stultification of the court in setting aside and overruling a decision on the record confessedly erroneous.
In considering this question, assuming, as we must, that under the will, when legally and properly construed, it became, in April, 1876, the duty of these trustees to the public to divide this estate at once into two equal parts, and without unreasonable delay to apply one-half thereof to the establishment of a free public library, and that they all refused to do so, it follows, necessarily, that they have been violating their duty to the public in the administration of their trust ever since. In such case no other person except the Attorney General can lawfully represent the State in determining the rights of the public.
If the allegations of the bill and cross-bill are true, the surviving descendants of testator’s brothers and sister, (the beneficiaries of the one-half, and the public, the beneficiaries of the other half,) were lawfully entitled to the immediate enjoyment of their respective shares, and the action of the trustees in denying their right to an immediate distribution of the estate was contrary to the trusts of the will, and was a maladministration of their trust. The suit relates to the administration of the trust. In this controversy the public, as the beneficiaries of one share, had a joint and equal interest with the original complainants; but neither the Attorney General nor the people of the State were made parties, and in the absence of both the case was submitted to the circuit court on demurrer, and a decision was rendered by this court, also in the absence of the people and the Attorney General, defining the rights of both the complainants and the public, and construing and declaring the legal effect of the very clause of the will which provides for the establishment of a public library, and in effect determining that the people of the present generation shall be deprived of the benefits of the charity established by the will. Neither the trustees, nor their counsel, at any time assumed to present the cause of the public, nor did they at any time present or suggest to the court any considerations in support of the asserted rights of the public. On the contrary, their attitude from the first to the last was that of absolute denial of any present rights, either in the complainants or the public, and they called to their aid in maintaining their position able and astute counsel, who supported them by all the arguments their ability or ingenuity could suggest. Their attitude, and that of their counsel, throughout the controversy, was uncompromisingly hostile to the asserted rights of both the original complainants and the public, and neither in the court below, nor in this court, did they suggest the necessity, or even propriety, of having the rights of the public represented.
The cross-bill alleges that “the time has long since elapsed since it became the duty of said trustees to proceed under the terms of said will to divide said estate into two equal parts, and to apply one of said parts to the founding of a free public library, as is provided in said will; yet although it has been demanded of said' trustees, before the filing of the original bill in this cause, that they do make such application of the said one-half of said estate, the said trustees have refused, and still do persistently refuse, so to do, or to make any application whatever of any portion of said estate. ”
It is not denied that the relation of the defendants to the property in controversy is that of trustees, the beneficiaries of the one-half being the complainants in the original bill, and of the other half, the public. Nor can it be denied that this is a suit brought by part of the eestuis que trust against the trustees to enforce the trust, and to compel them to perform a duty under the trust which all the trustees deny and refuse to perform, and that the suit relates to the administration of the trust. It relates to a breach of trust by the trustees. Nor can it be denied that the public, as the beneficiaries of one-half of the estate, had an equal and joint interest with the original complainants in the subject matter of the controversy and in the question involved,—whether the time had arrived, under the will, for dividing the estate. The public was jointly interested with the original complainants in that question. They are interested in that very question,—in the same manner and in the same degree.
In suits brought by cestuis que trust against trustees for the enforcement of a trust, or to enforce the performance of a duty by the trustees, the rule is, that all the beneficiaries are indispensable parties before a decision against the beneficiaries can be rendered. Barbour says : “The cestuis que trust have the equitable ultimate interest to be affected by the decree, and therefore they are necessary parties.” (Barbour on Parties, page 529.) The same author says: “In a suit to enforce a trust, if there are several cestuis que trust, all of them should be made parties to a bill touching the common interest.” (Barbour on Parties, page 525.) Perry says: “Where the suits are between the trustees and the cestuis que trust, in relation to property, the general rule is, that all the trustees and the cestuis que trust must be before the court, either as plaintiffs or defendants. ” (Perry on Trusts, sec. 865.) Hill says: “A suit in respect of a breach of trust may be instituted by all, or one or more, of the cestuis que trust, as plaintiffs; but if any of the parties beneficially interested do not join as plaintiffs, they must be brought before the court as defendants.” Hill on Trustees, page 810.
The reasons of this rule are plain. It is obvious that in a suit to enforce rights asserted by the cestuis que trust and denied by the trustees, who all refuse to perform the trust, the trustees can not themselves represent any of the cestuis que trust interested to have the duty performed, and the cestuis que trust themselves, and all of them, must of necessity be parties, to represent and assert their respective interests. It is also clear that where there are several cestuis que trust equally interested in the subject matter of the suit, all and each have an equal and the same fight to be heard, and one cestui que trust can no more properly and justly represent or bind others not before the court, than in any other suit one party can conclude by his appearance others having an equal interest with himself in the subject matter. It seems impossible to deny that under this well settled principle the cestuis que trust of the one-half of this estate given to the descendants of the testator’s brothers and sister, if the time for division has come, must be regarded as essential parties to any suit brought against all the trustees for the enforcement of the trust, or to enforce the performance of the duty which all the trustees refuse to perform. If a suit had been originally brought by the Attorney General without making them parties, it will hardly be contended that the rights of such descendants could have been barred or affected by any decision- in such case. It would hardly be insisted that they were represented by the Attorney General representing an independent interest, or that, on that question, they were represented by the trustees, tvho denied the right of these descendants to an immediate division. Nor is it denied that the provision' directing the defendants to divide the estate, and to apply one-half of the estate to founding a public library, created a trust, and that the appellees hold the fund devoted to that purpose as trustees, subject to the corresponding right in the public, as cestui que trust, to call them to account or to enforce the performance of the trust by their proper representative, the Attorney General. .
It would seem to follow, from these indisputable premises, that in a suit brought by the original complainants, as cestuis que trust, against all the trustees, to enforce the trust, the other cestui que trust, the public, who has an equal interest, is an indispensable party, and must be brought "before the court through its representative, the Attorney General, before any decree or judgment by any court can be rendered which can bind the public, as such cestui que trust. In all suits affecting the proper administration by trustees of public or charitable trusts, (since the cestui que trust, the public, can not be made a party in person,) it must be represented by the Attorney General, who can be made a party plaintiff or defendant to represent their interest. Barbour on Parties, 444, 468; Hill on Trustees, 114, and authorities cited, infra.
It follows, from these principles, that (aside from a few exceptional cases to be noticed hereafter, and in which the cestui que trust, if a natural person, would not be a necessary party,) the Attorney General is an indispensable party, either as plaintiff or defendant, to all suits affecting the proper administration by trustees of charitable trusts. And such is the well established rule, by an unbroken line of authority.
In Story’s Equity Pleading, sec. 222, the rule is stated thus: “In all cases where the government itself is a party in interest, it is essential that the Attorney General, who is the proper public officer of the government, should be made a party, either as plaintiff or as defendant, to protect and assert the interests of the public. Hence it is that in cases of public charities the court always requires the Attorney General to be made a party to the suit, because the crown or government, as parens patrim, superintends the administration of all charities, and must, in cases of this sort, act by its proper officer, who is the Attorney General. ”
“Where the crown is either directly or indirectly interested, the Attorney General, or when his office is vacant the Solicitor General, is the party to protect such interests. * * * Where the rights of the crown are only indirectly concerned, as, protecting the interests of persons under its care, as the superintendence of a public trust or charity, the Attorney General must be a party.” Mitford’s Equity Pleading, 16.
“Any questions affecting charitable trusts may be brought before the court by information, in the name of the Attorney General, or, in some cases, the proceedings may be by bill, and in that case the Attorney General must he made a party to the suit, and the court will refuse to proceed in his absence. ” Hill on Trustees, 714.
“As against the trustee himself, a suit to enforce the trust can only be maintained by the cestui que trust. Where the trust is for a public charity, there being no certain persons who are entitled to it so as to be able to sue in their own names as cestuis que trust, a suit for the purpose of having the charity duly administered must be brought in the name of the Attorney General, ” Barbour on Parties, 440.
“It is a general rule that in all cases where the government is a party in interest, the Attorney General should be made a party, either as plaintiff or defendant, to protect and assert the interests of the public. Hence it is that in cases of public charities the court always requires the Attorney General to be made a party to the suit. ” Barbour on Parties, 468.
Tudor says: “As a general rule, the Attorney General must be made a party to every suit by bill when the subject matter is either wholly or in part appropriated to charitable purposes.” Tudor’s Law of Charitable Uses, 161.
Jackson v. Phillips, 14 Allen, 640, was a bill filed by an executor for the construction of a will, containing a bequest to a charitable use. The trustees named in the will, and the heirs, were made parties defendant to the original bill. By order of the court the Attorney General was made a party defendant. The court say: “In cases of bequests to trustees for charitable uses, the nature of which is described in the will, the chancellor acts in his equity jurisdiction over the trusts, and the prerogative of the king finds its -appropriate exercise through his Attorney General in bringing the case before a court of chancery for judicial determination. This duty of maintaining the rights of the public * * * is vested in the commonwealth, and is exercised here, as in England, through the Attorney General. (Going v. Emery, 16 Pick. 119; County Attorney v. May, 5 Cush. 338.) It is upon this ground that in a suit instituted by the trustees of a charity to obtain instructions of the court, the Attorney General should be made a party defendant, as he has been, by order of the court, in this case. (Harvard College v. The Society for Promoting Theological Education, 3 Gray, 280; Tudor, 162.) The power of the king, or commonwealth, thus exercised, is simply to present the question to a court of justice,—not to control or direct its judicial action. ”
Society v. Society, 55 N. H. 463, is a case where certain property had been conveyed in trust, the rents to be expended annually by the inhabitants of the town of Orford, “for the support of the gospel. ” Two religious societies each claimed to be entitled to the fund. A bill in chancery having been filed in behalf of one of the societies, in relation to the trust, was dismissed. Held, that the Attorney General not having been made a party' in that suit, the judgment was not binding on him, and the two societies having made a compromise, held that no such compromise, effected by the societies themselves, could be enforced. It is there said: “The case of The Attorney General v. Dublin, 38 N. H. 459, was originally commenced in the name of Abbott et al., as plaintiffs, a demurrer having been filed on the ground that the Attorney General ought to have been made a party. The bill was amended. The same objection, if taken here, would probably have been sustained, and the Attorney General must have been made a party, either plaintiff or defendant. It is my conclusion that the subject matter of this suit being a public charity, no final and conclusive settlement can be made unless the State should be represented. (Story’s Bq. PI. sees. 8, 49, 69, 222.) It is clear that neither the town of Orford nor the societies have such an interest in the fund as gives them the power to settle anything conclusively in regard to it. It is said that the suit has been commenced in favor of that society, against the town of Orford, which has been dismissed on demurrer. It is not directly claimed in the bill that the rights of these defendants have been concluded by that proceeding. If, however, there were such allegations, their effect would be entirely obviated by the fact that the Attorney General was not made a party to that bill, and therefore can not be bound by its results. It seems equally certain that nothing could be done by these societies, by way of compromise or agreement, which could be conclusive.”
Chamberlain v. Stearns, 111 Mass. 267, was a bill filed by trustees, under a will, for instructions as to the validity of an alleged bequest to a charity. The testator’s sole heir and residuary devisee was made a party defendant. By order of the court the Attorney General was made a party to the suit, and filed an answer.
In Female Association v. Beekman, 21 Barb. 568, the court say: “It is a general rule that a suit to enforce a trust can only be maintained by a trustee or the cestuis que trust. As against a third person, the trustee (he being regarded as the representative of the cestui que trust,) is the proper party to bring the - action. As against the trustee himself, the suit can only be maintained by the cestui que trust. Where the trust is for a public charity, there being no certain persons who are entitled to it, so as to be able to sue in their own names as cestuis que trust, a suit for the purpose of having the charity duly administered must be brought in the name of the Attorney General. In such a ease that officer, as representative of the public, would occupy the relation of cestui que trust to trustees.”
Wellbeloved v. Jones, 1 Sim. & Stu. 40, was a bill filed by the trustees of an academical institution to enforce the payment to them of a legacy. It was insisted by the answer of the original defendants that the bequest being for a charity, the Attorney General should be made a party. The vice-chancellor ordered the Attorney General to be made a party, saying, “the Attorney General must be made a party. ”
Kirkbank v. Hudson, 7 Price, 212, was a case wherein a will devised the residue of testator’s personal estate to trustees for the perpetual endowment and maintenance of a school. The bill was filed by the next of kin to have this bequest declared void, and for a distribution. The Attorney General was made .defendant.
Cook v. Duckenfield, 2 Atkins, 562, was a case where the testator bequeathed his property in trust, with directions to the trustees that his personal estate should be disposed of “among the widows and orphans of dissenters, and to my poor relations, in such proportions as they shall see fit. ” A bill was filed by the heir at law against the trustees, and it was held that “the bill must be amended, and the Attorney General, in behalf of the charity to widows and orphans of dissenters, and to testator’s poor relations, must be made a party. The cause must stand over, and the Attorney General be made a party in behalf of the charity. ”
In all these cases the trustees of the charity were parties, yet they were not considered the representatives of the public.
In Overall v. Peacock, a bill was filed by some of the sufferers by a fire against the trustees of a collection made for the sufferers. It was objected at the hearing that the Attorney General ought to have been a party, and that otherwise the decree would not be conclusive, and the cause was accordingly ordered to stand over for the purpose of bringing the Attorney General before the court. Mitford’s Equity Pleading, 260.
In Heuser et al. v. Harris, 42 Ill. 431, it was said that the mode of proceeding to enforce a public charity is by “information, in the name of the Attorney General, as an officer of the crown, the king being viewed as the father of the country, and thé proceedings instituted for the public good. ”
Chapter 14 of the Revised Statutes (Rev. Stat. 1874, p. 163,) provides, as to the Attorney General, that one of his duties shall be “to appear for and represent the People of the State before the Supreme Court in each of the grand divisions, in all cases in which the State, or the People of the State, are interested. ” The statute of Massachusetts was, that the commonwealth’s attorney should appear in all cases “in which the commonwealth may be a -party, or be interested, ” and Shaw, Ch. J., construing this statute, says: “I have no doubt that the establishment of the grant or donation for purposes of a general charity, in a suitable and proper case, for the action of a court of equity, is a case in which the commonwealth is interested.” Parker v. May, 3 Cush. 338.
But it is claimed that the present case falls within a supposed exception to the rule, and that the trustees themselves have hitherto represented, and, therefore, now represent, the public in this suit. The substance of this proposition is, that in a controversy in which the present right of the beneficiaries (the public) to a fund is asserted by the beneficiaries on the one hand, and denied by all the trustees on the other, and in a suit where the sole object of the public is to enforce the performance by the trustees of certain duties which the trustees refuse to perform and deny to be duties, the trustees have represented one of the beneficiaries,—the public,—and by their action in appearing and denying their rights, have concluded them from enforcing the performance of these duties. If the trustees can be said to represent the Attorney General in a suit brought by the beneficiaries of one-half of the fund to enforce the trust, it would seem to follow that if the suit had been brought, as it undoubtedly might have been, by the Attorney General, and the other cestuis que trust had not been made parties, their rights would equally have been concluded in the litigation on the same doctrine of representation. This would seem preposterous. If such be the law, why not dispense with the cestuis que trust, as parties, altogether ? In a controversy where the attitude of the cestuis que trust and that of the trustees are hostile, and where the very subject matter of the controversy is an alleged failure to fulfill a duty imposed upon the trustees in the administration of the trust,—a duty alleged by all the cestuis que trust on the one hand, and denied by all the trustees on the other,—if the trustees can, in such a suit, represent part of the cestuis que trust, why may they not represent all ? And why is it essential that any of the cestuis que trust shall be parties ? Why may they not all be bound by an ex parte proceeding, to which the trustees alone are parties ? I do not understand that it is contended that those of the cestuis que trust who were before the court represented the others who were not, so as to bind them. It is not pretended, as I understand, that because one of the parties in interest has been heard, that cuts off the rights of the others, equally entitled to a hearing; who were not made parties, since such a contention would strike at the fundamental doctrine that only the parties before the court are bound by the judgment or decree. It is not claimed that the Attorney General was bound although not before the court, but that he is bound because he was (as is contended) in fact represented, and in fact present in court, by his representatives, the trustees. In this view it would seem that the original complainants,—the other beneficiaries,—were, in the same sense, represented in court by these trustees, for, as to this question, the trustees are the representatives of one part of the beneficiaries, in the same sense and to the same extent as they are for the other beneficiaries. It would seem to follow, that if a proper proceeding could be suggested, the supposed principle of law invoked by appellees would enable the trustees to settle all questions involving alleged breaches of trust, or touching the enforcement of the performance by them of any duty under their trusts, in proceedings in which they would represent both sides in the controversy, and in which the cestuis que trust would not be entitled to be heard at all. No reasons are presented in support of the position that the trustees were the representatives of the public before this court in 1880, but the position is left to rest upon certain authorities, and the distinction they are supposed to establish.
The comment of Mr. Daniell, and the case of Monill v. Lawson, 4 Viner’s Ab. 501, are presented as supporting this position. The case of Monill v. Lawson is one where a bill is brought by some of the trustees, against other trustees and several cestuis que trust, to establish a will and to enforce the performance of certain charitable trusts. It was there held the Attorney General is not a necessary party. General expressions from Daniell are also relied upon to the effect that there is a difference where trustees of a charity are appointed by the donor and where no trustees are appointed, as to the necessity of making the Attorney General a party. These authorities in nowise conflict with the proposition that (where suit is brought against all the trustees by certain cestuis que trust, to enforce the performance by the trustees of a duty claimed to be imposed upon them as such trustees, and which they all deny to be their duty,) all the cestuis que trust interested in that question are indispensable parties, without which no decree can be rendered by which those not made parties can be concluded or ultimately legally affected. These authorities merely go to sustain the proposition that where a bill is filed by one or more of the trustees against one or more of his or their co-trustees, to compel the performance of a supposed duty under the trust,—or against a stranger, to recover trust property,—in such case the trustee or trustees asserting the right of the cestuis que trust by filing the bill is regarded as the representative of the cestuis que trust, and, in -such ease, the beneficiaries are not essential parties to the suit. The case at bar does not fall within this exception to the rule. Neither of the trustees asserte'd the right claimed here by the Attorney General for the public.
Manifestly this rule or exception rests upon the fact that the part of the trustees who are the complainants in such case have brought the suit in the exercise of their trust, asserting the rights of the beneficiaries, or for the protection of the trust property, and are acting in harmony with the asserted rights of the cestuis que trust, and may, therefore, justly be said to represent them. Upon this ground Monill v. Lawson, supra, rests, and is justified. The suit there being brought by a trustee or trustees asserting the rights of the cestuis que trust, none of the cestuis que trust were necessary parties, and, therefore, the Attorney General, in such case, was not a necessary party. So in the class of cases to which this rule applies, there is undoubtedly “a difference” in this regard (as stated in Daniell and in the other authorities cited,) between cases where there are trustees appointed by the donor and where no trustees are appointed, as, in the latter cases, the Attorney General must always be a party, as well as all other beneficiaries to be affected by the decree. This rule or exception does not apply to the case before the court. It only applies when the trustees themselves, or some of them, are seeking to enforce the trust or the performance of the duty, and, therefore, are acting for the cestuis que trust, while in the case at bar all the trustees deny the rights claimed by the cestuis que trust, and are resisting their enforcement, and all deny that the alleged duty is imposed upon them. The difference between the case of trustees enforcing the trust against co-trustees or strangers, and that of trustees resisting a bill by the cestuis que trust against themselves, for the enforcement of a trust and the performance of a duty which they refuse to perform, seems too apparent for argument.
The authorities relied on for appellees do not apply to the case at bar; but if they could be regarded as sustaining the broad proposition asserted, that where there are trustees for a charity the Attorney General is not an indispensable party in such a suit as this, they would be clearly opposed to the many authorities already mentioned, and should yield to their weight, and the fundamental principles on which they rest. In Jackson v. Phillips, 14 Allen, 539, there were trustees of a charity who were made defendants, but the court ordered the Attorney General also to be made a defendant. The court said: “This duty of maintaining the rights of the public, and of a number of persons too indefinite to vindicate their own, has vested in the commonwealth, and is exercised here, as in England, through the Attorney General. It is upon this ground that in a suit instituted by the trustees of a charity to obtain the instructions of the court, the Attorney General should be made a party defendant, as he has been by the order of the court in this case.” So in Chamberlain v. Stearns, 111 Mass. 267, the trustees of a charity were the complainants. The court ordered the Attorney General to be made a defendant. So in Society v. Society, 55 N. H. 463, property was conveyed in trust for charitable purposes. On a bill filed by one of the beneficiaries against the trustees, it was held that the Attorney General was a necessary party. The court said: “The Attorney General should have been made a party, either plaintiff or defendant. It is obvious that the subject matter of this suit being a public charity, no final and conchtsive settlement can be made unless the State should be represented. ” And in Cook v. Duckenfield, 2 Atkins, 562, on a bill filed by the heir at law against the trustees, who were directed by the will to dispose of the personal estate for certain charitable purposes, the court said: “The bill must be amended, and the Attorney General, in behalf of the charity, must be made a party.” So in Kirkbank v. Hudson, 7 Price, 212, and Wellbeloved v. Jones, 1 Sim. & Stu. 40, there were trustees for the charities, and in both eases it was ordered that the Attorney General be made a party. The case of Female Association v. Beekman, 21 Barb. 565, is also cited at length for appellees. This very case, so far from sustaining the position of appellees, illustrates and recognizes the plain distinction here pointed out. The court expressly holds, that where a suit is brought against the trustees to enforce the trusts, the cestuis que trust must be parties, saying: “As against the trustee himself, the suit can only be maintained by the cestuis que trust.” And that where the trust is for a public charity, the Attorney General, “as representative of the public, would occupy the relation of cestui que trust to the trustee, ” within the meaning of the rule. Such is clearly the case at bar. In the case cited the court recognize two classes of cases in which the trustee could be regarded as representing the cestuis que trust: First, when the trustee has brought suit against a third person to enforce the trust; second, when the heir or next of kin has brought suit against the trustee to avoid the trust, and the trustee is defending the trust. Manifestly the case now being considered belongs to neither of these two classes.
In Gaytes v. Franklin Savings Bank, 85 Ill. 256, a decree had been rendered against a trustee in the absence of the cestuis que trust. On a bill filed to review the decree, the court held that the cestui que trust was a necessary party, and set the decree aside. The court said: “Nothing appears in the bill in the original case to take it out of the general rule that all parties whose interest would be affected by the decree should be parties to the bill, otherwise they can not be concluded by any action of the court. Before any one is concluded by judicial sentence, he must have his day in court. When no such opportunity is afforded any one aggrieved, if application is made within a reasonable time he may have such decree against him set aside, upon terms that shall be considered equitable, and let in to make his defence to the cause as if he had been made a party defendant. When that is done, all rights of the respective parties may be fully investigated and determined.” In Hopkins v. Roseclare Lead Co. 72 Ill. 377, the court say: “It is the duty of the complainant to see and know that he has before the court all necessary parties, or his decree will not be binding,” See, also, Scott v. Bennett, 1 Gilm. 646; McCall v. Lesher, 2 id. 46; Leitze v. Clabaugh, 59 Ill. 136; Deniston v. Hoagland, 67 id. 265; Ridgeway v. Underwood, id. 421. It is fundamental that to make a matter res judicata there must be a concurrence of these four conditions, viz: Identity of subject matter, identity of cause of action, identity of parties, and identity of the quality or capacity in which the parties sue or defend. Freeman on Judgments, sec. 252; 2 Bouvier’s Law Dict. 467.
A party who was not before the court at the former hearing is here now asking to be heard. Never having had his day in court he ought'to be heard. It can make no difference that the Attorney General having been properly brought into the case, is seeking to assert his rights by answer and cross-bill in this cause, instead of by the filing an original bill and instituting a new suit. If he was a necessary party to the cause, the principle of public policy, (which requires all necessary parties to be before the court, and in pursuance of which the courts have repeatedly refused to proceed in their absence,) justified the court below in ordering that the Attorney General be made a party and allowed to assert his rights in the pending litigation; and being now for the first time before the court, he must be heard, if heard at all, the same.as if the decision rendered in his absence had not been made. If made a party it is to give him an opportunity to be heard, and not to fasten upon him a decision which otherwise would not conclude his rights, while to compel him to resort to the circuity of another suit in the nature of a bill of review would be contrary to the settled policy of this court, which ever is to avoid multiplicity of suits, and, if possible, to settle in one suit the rights and duties of all parties.
The doctrine of stare decisis can not be supported by the ruling of the court in only one case, unless the law then laid down has become an element of subsequent contracts, or a rule of property under which intervening rights have come into existence. Stevens v. Pratt, 101 Ill. 206; Powers v. Green, 14 Ill. 386; Frink v. Darst, 14 Ill. 304; Mallett v. Butcher, 41 id. 383; Butler v. VanWyke, 1 Hill, 461; Pratt v. Brown, 3 Wis. 532; Leavitt v. Blatchford, 17 N. Y. 533. See, also, 1 S. & M. 371; 48 Cal. 493; 23 Pa. St. 471; 6 Ohio St. 78; L. R. 11 Ch. Div. 579; Wells on Res Judicata, pp. 544, 550.
Mr. Justice Ckaig, also dissenting.