delivered the opinion of the Court :
Whilst the general rule in respect of the necessary parties to a suit in equity is well established and understood, difficulties constantly occur in its application to the facts alleged and the relief prayed in particular cases. One of these difficulties presents itself in this case and in several aspects. In so far as the decree of dismissal may have been founded on the failure of complainant to make the remaining devisees and legatees of John F.> May parties to his bill, we are not prepared to give it our approval. Whilst interested in the property and in the rents and revenues that may be collected for distribution as provided in the will, the right of each is to a certain and separate interest or part. The others have no common interest with the defendant in the object of the bill, and it is not seen how, upon the facts alleged, their interests can be affected, in any material sense, by granting the relief prayed against the defendant. Persons so situated are not indispensable parties. Story Eq. Pl., Secs. 72, 207, 207a, 212; Adams Eq., p. 315 ; Shields v. Barrow, 17 How. 130, 139; Hubbard v. Burrell, 41 Wis. 365; Wendell v. Van Rensaelaer, 1 John. Ch. 344, 349.
Nor is it apparent to us that the object of the bill necessarily demands a construction of the will, in which others are interested, in such sense as to require that they should be made parties. It seems to be that incidental construction merely, which is involved in many bills of the kind, viz., whether it is reasonably apparent that there is any interest in the defendant upon which a court of equity might operate as prayed.
Without undertaking to construe the will, we think that if the defendant has an equitable interest in the land de-. vised, subject to certain contingencies that are named in the will, there seems to be no sound reason why the same, whatever it may be, should not be sold, if necessary, in satisfaction of the unpaid judgment. The objection that a sale of *389such an interest ought not to be decreed because of the difficulties in the way of arriving at its value and realizing a just and adequate price, is without merit. To a like argument, the Master of the Rolls, in Tyndale v. Warre, 1 Jacobs, 212, made the following reply: “ I think that such considerations ought not to weigh; for the question is, to whom does the property belong ? It is not the habit of the court to consider the interest of the heir, when opposed to that of the creditors. They ought to have the fullest remedy. And upon what principle can the court refuse to give them the benefit of a sale, because another person, whose interest is secondary and entirely subject to theirs, may be benefited by delay.” The Supreme Court of the United States, after quoting the foregoing language, emphasized its approval of the doctrine by adding: “So far from its being proper for a court to hesitate about decreeing the sale of an interest because it is reversionary, we think that the character of the interest affords a stronger reason.” Burton v. Smith, 13 Pet. 464, 483.
Still, however, on account of the detriment that might be sustained, a court of equity may well be reluctant to decree a sale under such circumstances as long as another and apparently as satisfactory remedy may be found for the creditor’s relief. Therefore, as the bill discloses what is apparently a speedier and more efficacious means for the satisfaction of the judgment, it is not necessary to determine finally whether the defendant has such an interest in the real estate, under the will, as would justify a decree for its sale. That question may come before us again, in the event of the failure of the other remedy, and will therefore be left open until such time.
The hill shows that the monthly revenues of the estate amount to $1,200, two-thirds of which are for distribution among the children of the testator, provided the mortgages referred to have been paid, a fact which may be reasonably inferred from the lapse of time. The difficulty with the *390bill is that no special relief was prayed in respect of this fund, and the allegations concerning it are vague and general. Those defects, however, are readily curable. Now, with this apparent resource for the satisfaction of the judgment through a sequestration of defendant’s portion of the revenues of the estate, within a reasonable time, we think it should be resorted to until exhausted, or shown to be unavailable, before pressing for a decree of sale.
In view of this mode of relief, as well also of the other, the bill was still fatally defective in omitting to join Sarah Maria May, the executrix of the will and co-trustee with defendant of the estate thereunder, as a party defendant. Story Eq. Pl., Secs. 207, 207a; 1 Daniell Ch. Pr. 192, 193 and 247.
The fact that the bill was directed substantially to her co-trustee in his own right, and formally only as trustee, emphasized the necessity for making her a party.
As regards the incumbrance of Victorine M. Learned, under the allegations and prayers of the bill, we are of the opinion that she is not a necessary party. In the first place, any liability of defendant to her whatever depends upon a contingency that may never happen. In the second place, the amount of the possible liability is uncertain, for the penalty of the appeal bond is no certain criterion. For both these reasons it could neither be discharged nor provided for, and hence, it was proper for complainant, who does not deny the bona fides of the instrument, to pray that the sale might be made subject thereto. Hagan v. Walker, 14 How. 29, 37; Jerome v. McCarter, 94 U. S. 734, 736; Clark v. Bradley Company, 6 App. D. C. 437, 442. If its existence should increase the difficulty of realizing upon the interest, at a judicial sale, the fault is with the defendant, and its' result cannot be visited upon the complainant.
For the omission to make the executrix and co-trustee a party, the bill was rightly dismissed, though the same *391might well have been without prejudice to the right to begin the proceedings anew.
To subserve the ends of justice, the decree will be modified so as to read as dismissed without prejudice, and, as so modified, affirmed, with costs; and it is so ordered. The complainant will therefore be free to. file another bill joining therein the said Sarah Maria May as executrix and trustee, and any other trustee that may have been substituted for William May in the event that the power so to do, conferred by the will, shall have been exercised in the interval. And therein may be retained the prayer for sale, &e., in the event that the remedy against the fund, first to be pursued, should prove insufficient.
What has been said herein above in respect of the necessity of joining the remaining children of John F. May is in application to the faets as they appear in the bill. If there should be any special reason why they ought to be made parties, it may be made to appear by plea.
Modified and affirmed.
On November 5, 1896, Mr. Sands, on behalf of the appellant, filed a motion for a modification of the decree in this case.
On November 10, 1896, the motion was granted, Mr. Justice Shepard delivering the opinion of the Court:
The motion of appellant, entitled a motion for modification of the decree rendered, in so far as it prays that the decree below may be reversed with costs, in order that he may amend his bill, is a motion for a rehearing, and to that extent is overruled.
The court below did not err in dismissing the bill for the want of a necessary party defendant, and as plaintiff did not ask leave to amend, so far as the record shows, he is in no attitude to complain that injustice was done him.
In consideration of the fact, however, that the record does *392not show that he was offered the alternative of amendment or dismissal, and specially because of certain equitable circumstances in the case, and the possibility that he might otherwise lose any lien that he may have acquired through his original bill, we will grant the motion to modify or amend our decree. That decree will therefore be amended to the effect that the decree appealed from shall be modified so as to read that plaintiff shall have leave to file an amended bill within ten days, failing in which his bill shall be finally dismissed. As so modified, it is affirmed with costs, and the cause will be remanded to the court below for further proceedings in conformity with this opinion. It is so ordered.