(dissenting).
In my opinion, the demurrer to the declaration should have been overruled, and the appellees required to answer. In order to make my views clear, it will be necessary to state more at length the allegations of the bill than they have been stated in the majority opinion; for not only is the will to be construed and sections 2075 and 2079 of the Code to be construed as applied to the will in this case, but there are allegations in the pleading that, in my opinion,,make it legally impossible to treat the trustees as the virtual representatives of any of the parties in interest in the estate of the decedent. The bill alleges that J. F. Powell at the time of his death was seised and possessed of certain plantations described in the declaration, and that he owned a large landed and personal estate which came into the hands of his executor named in the last will and testament, said personal property consisting of live stock, farming implements, merchandise, stock of corporations, notes and accounts, stock and tangible personal property appraised at ninety-nine thousand two hundred and fifty-seven dollars and seventy-six cents, and that there were probated claims against the estate to the amount of one hundred and sixty-three thousand one hundred and eighty-eight dollars and forty-four cents, and legacies *444to the amount of sixteen thousand two hundred and fifty dollars, and that if the directions of the will had been observed the assets in the hands of the executor were sufficient to pay the debts and legacies; that on the 8th of February, 1912, the executor exhibited a petition to the chancery court of Yazoo county against the trustees praying for a decree ordering a sale of realty in preference to personalty for the purpose of paying debts, the prayer of which petition the trustees by their answers joined, and a decree ordering the sale was granted without notice to or service of process upon the parties interested in said estate other than the trustees. It is alleged that the petition for the sale of lands did not de-' scribe particular land or pray for the sale of any particular land, and that the decree of the court granting the prayer of the petition did not describe any particular land to be sold, but authorized the executor to sell any of the lands of which J. F. Powell was possessed at the date of his death, not prescribing the terms or conditions of the sale, except to provide that only sufficient land should be sold to pay the debts, leaving the particular lands to be sold entirely to the discretion of the executor, and that sxich sale was made and confirmed without notice to any of the complainants or any other party than the trustees in the will. The bill also alleged that it was unnecessary to sell the lands to pay debts,, and that the debts so called to which the proceeds of the sale were to be applied were not lawful debts against the estate of the deceased, but were in legal effect personal debts of the executor due to one of the trustees. It is also alleged that there was sufficient moneys and notes from lands previously sold to pay the debts without sale of the land in question in this suit.
It further appears that subsequent to the death of the decedent that John F. Powell and Virginia Powell, his wife, threatened to bring a suit to contest the provisions of the will, and that the trustees and said John F. Pow^ ell and Virginia Powell, with the consent of other rela*445lives of the deceased, entered into an agreement by which John F. and Virginia Powell undertook to surrender their right granted under the will to live upon any one of the plantations free of rent charge in consideration of an agreement on the part of the trustees to increase the annual allowance made under the provisions of the will from two thousand dollars per annum to five thousand dollars per annum, and in addition to surrender to John F. Powell certain' stock in corporations set out in detail in the agreement. It further appears in this agreement that the trustees undertook to pay out of the funds in their hands seven hundred dollars attorney’s fee to the attorneys of John F. and Virginia Powell in attacking the will and in bringing about •a compromise. In this agreement of compromise.it is recited that John F. Powell would be the “right heir” of J. F. Powell, deceased, in the event he died”without children, and that upon his death without children the ■corpus of the estate would be vested in the petitioner. It is further agreed that the trustees should increase-the allowance to. five thousand dollars, and this increase ■should be effective from the date of the death of the testator. By paragraph 5 of the compromise the trustees agreed to deliver contemporaneously with the execution of that agreement to John F. and Virginia Powell all notes' and accounts, evidences of indebtedness, moneys, and personal property belonging to said John F. and Virginia Powell. In paragraph 7 it was agreed that, in consideration of the compromise agreement being faithfully carried out, John F. and Virginia Powell waived all right to contest the validity in any court of the said will and codicil, and agreed that the will and codicil probated are valid and binding, “except as modified by the terms of this compromise agreement.” In paragraph 10 of the compromise agreement it was provided that in the event any court of competent jurisdiction shall ever decide that the parties of the first part (the trustees) have exceeded their, authority under the will *446and codicil in entering into this agreement, the same shall become null and void as to the parties of the second part, and the parties of the second part shall still have, and may enforce in any court, all rights they have and not he prejudiced in any respect by the delay. In article 11 it was agreed that the annuity raised to five thousand dollars should never thereafter be decreased, b.ut nothing therein contained should be construed to be a limitation upon the power of the trustees or their successors to further increase the sum to a greater sum than five thousand dollars, if at any time in the future it should become proper and expedient to do so under the terms of the will.
It is alleged that the sale of these lands was invalid and illegal: First, because the lands were not described in the decree of February 8, 1912, or by the petition upon which it was granted; second, that said decree was rendered without notice to or service of process upon either of the complainants, John F. and Virginia B. Powell; third, the same was rendered without notice to or service of process upon the other persons interested in said estate under said last will and testament; fourth, the decree ordered and the petition on which same was granted prayed for the sale of realty in preference to prsonaltv for the purpose of paying debts contrary to the directions of. said last will and testament; fifth, that there was no schedule of assets filed with the said petition; sixth, there was no schedule of probated debts owing filed with the said petition; seventh, said petition did not pray for, and said decree did not order, the sale of any specific part of the realty, but left the determination of what part should be sold entirely to the executor; eighth, that the lands were sold subject to leases thereon, and were so advertised contrary to the terms and ■ provisions of the decree, and said leases had been made by the trustees in charge thereof; ninth, that the sale was confirmed without motion or petition therefor or report thereof or consent thereto by the parties he-*447fore the court, all of the said papers being filed subsequent to the decree of confirmation.
The declaration was demurred to, the demurrer containing many grounds, among which the following may be mentioned: First, there is no equity on the face of the bill; second, that the bill did not show cause of action against the defendant; third, that the bill shows that the proceedings to sell the land to pay debts had as defendants thereto the trustees, and that the trustees consented to the sale of the lands in suit; fourth, that the bill does not show any title in complainants; fifth, that the record in the administration proceedings was a part of the -record of the court, of which the court will take judicial knowledge, and show that the executor executed his bond for the faithful application of the proceeds of the land; sixth, the bill does not show that the money was not applied to the payment of lawful debts; seventh, that the decree of confirmation of sale is conclusive, and that the sales were “to the interest of the devisees and legatees and cannot be collaterally attacked;” eighth, .that the averment of the bill that the indebtedness to the Bank of Yazoo City was one for which the estate was not liable is precluded by the decree ordering the sale and its confirmation. There are various other grounds, among which may be stated without numbering them: That the bill did'not show the debts were not incurred by the trustees in conducting the mercantile business or.in the proper improvement, management, and maintenance of the plantation, and that there were no persons m esse having an interest in the Rialto and Springwood plantations, except the trustees, and they were the only necessary parties defendant to the petition to sell lands in .preference to personalty; also the averment that the income is insufficient to pay the annuity by reason of unnecessary and improper sales, that the remedy would be against the executor for misapplication of the funds, and not, against the defendant’s title to the property, and that *448the decree of sale was conclusive adjudication of the liability of the property for the payment of the debts. I invite the attention of the bar to the terms of the will set out in full in the majority opinion. I desire to refer here to certain features of the will. Item No. 1 directed the executor to collect all moneys as soon as possible, and out of this fund and any other moneys coming into his hands to pay the testator’s just debts. Item No. 2 bequeathed to Nye Crook, the daughter of R. W. Crook, the executor, one thousand dollars, and to the wife of the executor one thousand dollars, and other legacies. Item No. 3 bequeathed to Miss Molly Powell, niece of the decedent, Pleasant Green plantation, in Yazoo county, Miss. Item No. 4 provided that “all the rest and residue of my property, both real and personal, I will, bequeath, and devise in trust to Thomas H. Campbell, Sr., trustee, for the purposes hereinafter specified and with the limitations and exceptions hereinafter mentioned, to have and to hold in trust for the use of my •son, John F. Powell, and his wife, Virginia Powell, for and during their natural lives, and in the event of the •death of either, for the use and benefit of the survivor ■during his' or her natural life, ’ ’ and provides that on the death of the survivor the trust shall terminate, and the property devised shall vest in the children of John P. Powell or the descendants of such children, and in the -event of the death of John P. Powell without children, then upon the death of Virginia Powell, wife of John P. Powell, the property “shall vest in my right heirs forever.” “I further direct that out of the rents, profits, and income of said property that the said trustee, or his successor, shall pay Jhon P. Powell and his wife, Virginia Powell, during their lives jointly the sum of two thousand dollars per annum, said sum to be paid In monthly installments and upon the death of either John P. Powell or his wife said sum shall be paid to the survivor for and during his or her natural life.” The trustee is .then directed to invest the residue of the *449profits and income for the proper improvement, management, and maintenance of the property and any idle or surplus money to be invested by lending the same out on the best security and at the best rate of interest obtainable consistent with safety and security. Then follows this provision: “I further direct that the said trustee, or his successor in office, may, with the consent of the chancellor of Yazoo county chancery court, sell and dispose of the property bequeathed and devised to the said trustee and in ease of sale shall invest the proceeds as aforesaid, but it shall not.be incumbent upon the purchaser to see to the application of the proceeds.” Then follows a devise to John F. Powell in fee simple of the lot and house owned and occupied by the decedent as a residence to John F. Powell absolutely in fee simple. “And I further direct that said John F. Powell and his wife, Virginia Powell, may select as their home to be resided upon by them any of the plantations comprised in the real estate devised herein and shall have the same free of all rent while so occupied by them.” Then there is a provision as follows: “The income herein provided for the benefit of John F. Powell and his wife, Virginia, shall not be anticipated by them or either of them, nor shall the property devised to the said trustee be in any way liable for any debts incurred by the said John F. Powell' and Virginia Powell or either of them. I further direct that if from ill health or other unforeseen cause in the opinion of the trustee it shall become expedient and proper for the comfort and convenience of said John F. Powell and Virginia Powell, or either of them, that the income herein provided for their benefit should he increased, the said trustee shall have power to do so.” In the codicil of the will R. W. Crook, the executor, and the Bank of Yazoo City were also made trustees to act jointly with T. H. Campbell, Sr. Then follows the devise to R. W. Crook and Lillian W. Crook “my plantation in Yazoo county known as Gandercleugh and all the live stock on the same at the time of *450my death.” It will he seen from the foregoing that the executor and trustee, R. W. Crook, was a devisee of the will, and that he and his daughter and wife were interested in the estate, and it was to his interest personally as well as to the interest of his family to see that the plantation and devises so made were not used or sold in paying debts. It will be seen also that the other trustee, the Bank of Yazoo City, was a large creditor of the estate, or at least under the allegations of the bill of one of the trustees, the executor and cotrustee, and was interested adversely to the appellants in this cause. It is further to be seen from the above recitals that John F. • and Virginia Powell not only have an annuity of two thousand dollars, but have a fee-simple interest in the house and lot constituting the homestead of the decedent and the right for life to live-upon any of the plantations devised in the will free of rent charge during their life. This at least was a qualified life estate in all plantations, of any of them, owned by the decedent at the time of his death.
Under the decree ordering the sale leaving to the executor the sole power to sell any of the lánds owned by the decedent at his death, the executor could, if he so willed, if the said decree of sale was valid, select the plantation of any of the legatees or the residence willed to John F. Powell or any other realty owned by the decedent. It 'further appears from -the recitals of the will that John F. and Virginia Powell were the beneficial owners of the estate not specifically devised during their natural lives. It was to be used, managed, and conserved by the trustees for the use of John F. and Virginia Powell during their lives, and at their death was to terminate and vest absolutely in the right heirs of the decedent in the absence of children born to John F. Powell. The right heirs under the provisions of this-peculiar will were such persons as at the death of J. F. .Powell, the decedent, would take the estate if John F. and Virginia Powell were not in existence, or if there *451was no children born to them in existence. These right heirs were parties in interest within the meaning of the statute (section 2079). John F. Powell, having a qualified life estate in the lands and a right to secure an annuity from the lands and a right to live on any one of the plantations free of rent charge, had an interest in the land within the meaning of section 2079. The trustees evidently proceeded upon the theory that the compromise agreement with' John F. Powell reduced his claim to a .mere annuity, and from their viewpoint he had no interest in the land, though, in my opinion, an annuity charged upon the land as is done by this will was itself an interest in the land within the meaning of said section.
I have always understood that under the laws of this state (subject to certain statutory restrictions not applicable to' the facts of this case) a person could dispose of his property in any manner that he saw proper, and that when a person made a valid will and died, the' will being valid at the date of his death, there was no power vested either in the heirs, devisees, or legatees, or in the chancery court, that can change the will, eliminate some of its provisions, and write new provisions instead. The proceeding in this case in the chancery court under the compromise agreement, petition for approval, and confirmation by the court of the compromise agreement is something “new under the sun.” It is certainly a novel doctrine that the trustees of á will or the executor of a will can pay out attorney’s fees to attorneys to attack the will and destroy it. There is no clause anywhere in the will giving such power, and clearly none was intended. It would be absurd to imagine a man making a will with the view and intention that some attorney should receive a fee for an effort to destroy the will. Yet we find in the decree confirming that so-called settlement directing and authorizing the executor and trustees to pay an attorney’s fee of seven hundred dollars for an effort to break and destroy the will. It is *452manifest that the power of the trustees to make a conveyance of the lands under the terms of the will had no reference or application to a proceeding to pay debts. On the contrary, by the very terms of the will, the debts were to be paid from other funds than the real estate, and the only possible authority to sell lands in preference to personalty would- be derived from the statute (section 2075 of-the Code). I think the will is the law of the case, and that it is evident from a study of the entire will that it was the purpose of the testator to have the debts paid out of the money, accounts, and personal effects in preference to realty. I cannot agree with the construction limiting and restricting the language of section 2079. The words “all parties interested shall be cited by summons or publication” should not be restricted to such as own a vested estate in the lands under the common-law doctrine of tenures. Such a construction is contrary to the principles of due process of law as known and understood throughout all the history of English common law, and especially as applied and adopted in America,- It' has always been recognized that a party should have a hearing before being deprived off his rights, and it has never been the policy of our government nor that of England, as I understand it, to have one person summoned to defend the rights of another person unless in cases of absolute necessity, such as where a person not in being, or not capable of appearing and defending, made a deviation from the rule necessary. It accords with fundamental justice to have all parties having any rights in a matter brought into court so that they may present whatever facts they may be able to present bearing on the judgment or discretion of the court. Under the early statutes of this state (Hutchinson’s Code of 1848, p. 666) the provision then in the law bearing on this subject was as follows:
“And the said court shall thereupon cause a citation to issue directing all persons interested in the lands, *453tenements, and hereditaments of the deceased, to appear.”
Under the terms of this statute the person must have some interest in the lands, tenements, and hereditaments, and by reference to rules of construction you would exclude such intérests as were not named in the statute. When the Code of 1857 was adopted the legislature saw proper to make a change, and instead of undertaking to enumerate the classes of interest, or character of interest, which a person must possess to be notified, it adopted lahguage that carried with it all possible interest flowing out of the ownership, use, or enjoyment of the property, and used the words “all persons interested,” omitting the words “in the lands, tenements, and hereditaments.” The Code of 1880, and from thence forward, the present language of the statute is “all persons interested.” These words are broad enough to embrace every character of right having its root in and springing from the estate of the deceased person. It is more in harmony with just principles to give a broad construction to this language than it is to adopt a narrow or restricted construction. The wisdom of giving such construction, that is, a broad and comprehensive construction, to these words'; is demonstrated in the pleadings in this case. We find in the petition to sell lands in the record that only the trustees were made parties, and they failed to file any objection whatever, and failed to suggest or contend that any claim was illegal or unjust, while under the pleadings now before the court it appears from the allegations that the debts were illegal charges for which the estate was not liable. The executor was one of the trustees, and as executor he was charged with the duty of representing the creditors, while as trustee it would be his duty under the theory of the majority opinion and of the chancellor below to represent parties hostile to-the creditors’ interests. Another one of the trustees had large claims against the estate as a creditor, and his personal interest was hos*454tile to the life tenant and to the remaindermen, whether vested or contingent; therefore we have two out of three of the trustees acting in capacities that are necessarily adverse and hostile to each other. It does not matter how honest their intentions may have been, whether they were fraudulent or n.ot, the law will not tolerate a person acting in two capacities each contrary to the other. It was of the highest importance to John F. Powell and his wife and to. the remaindermen, whether they be vested or contingent, and to the devisees and legatees of the will, that they be heard upon this proposition, and that they have the opportunity and the right to present to the court any legal objection they may have had to the sale of the lands sold under the order of court.
Upon the question of what is an interest in land or in an estate, I refer to Words and Phrases, First. Series, vol. 4, pp. 3697 and 3692, and Words and Phrases, Second Series, pp. 1137 and 1132. Numerous other authorities on this proposition and the other proposition involved in the suit will be found in the briefs, and the reporter is requested to state the points made and the authorities relied on in the briefs. I shall not undertake to go into the authorities in this case in any extensive way, but I desire to call the attention of the bar to a note on this subject in Downey v. Seib, 8 L. R. A. (N. S.) 51 et seq., under the title of “Doctrine of Representations,” and to a note, in Rutledge v. Fishburne, 97 Am. St. Rep. at page 763. I shall use some of the ideas contained in these notes, without citation of authorises, to express my views upon the doctrine of representation. “If there is in existence no member of the class to which the unborn persons belong, there is no representation in litigation and a court cannot appoint a representative.” There was in court in the present case no representative of the remainderman, either vested or contingent. If there had been some of the parties in existence before the court who would take *455the remainder of the estate at the death of John F. Powell and Virginia B. Powell, in the absence of children born to them, and such persons had made a fair and honest defense, it might be urged that the unborn children of John F. Powell and the nonresident remainder-men were bound by the judgment. “It is a settled principle that where a person is seised in fee of an estate which is liable to be defeated by, or shifted through, conditional limitation or executory devise, the inheritance is not represented in a court of equity by the person whose fee is thus liable to be defeated, except as against himself and those who take under him. If some one of the real or substantial parties to a cause does not hold such a relation to the property involved and to the unborn contingent remaindermen, as to make him a legal representative of the inheritance so as to bind it by recovery against them, the contingent remaindermen are not represented in the proceeding and therefore not bound by the decree.” Again, “the tests of effective representation are: First, privity of the estate, using the terms in the broad sense; and, second, the absence of conflicting interests between the unborn and the living representatives. If there are ever so many contingent limitations of a trust, it is an established rule that it is sufficient to bring the trustees before the court together with him in whom the first remainder of the inheritance is vested, and all that may come after will be bound by the decree, though not in esse, unless there is fraud or collusion between the trustees and the first person in whom a remainder in inheritance is vested.” -It is not sufficient in this ease to have the trustees before the court, but at least some one representing the parties who would take the inheritance .at the end of the trust must be summoned to appear. I have shown, I think, that there was a conflict of interest between the trustees personally and the representatives which it is said that they represent so as to bind in this cause. • To my mind it is shocking to deprive a person *456of a valued right on the theory that he is represented by another person where that other person’s rights and interests conflict with the interest of the person he is supposed'to represent. Why, in this case, were the trustees so anxious to have John F. and Virgnia Powell drop the suit to contest the will? Their duty was to carry out the will and defend the will against assault; yet we find that to get rid of this attack, in violation of the terms of the will, they turned over to John F. and Virginia Powell not only an increase in their annuity, hut a lot of personal property, and in addition to that paid attorney’s fees to their attorneys to the amount of seven hundred dollars. It is clear to my mind that the testator for some reason distrusted the ability of his son to manage and control this property, hut he intended to secure to his son a competence during his life and a place at least where he could have a home and a living from his estate. It is further my conviction from a study of this will that the testator, believing that no children could he born to John F. and Virginia Powell, desired to retain his property in his own family rather than have it go to the wife of John F. Powell in case she should survive him and at her death to her blood instead of his own. The proceedings that have been taken in this cause, and which' have received the sanction of this court through a majority of its members, has practically destroyed this will. It may not be a wise thing to permit a man to tie up' his property in a trust estate, but the law recognizes his right to do so, and it is the solemn duty of the court to protect this right so long as the law authorizes it. The pleadings show that the management of the trustees has so reduced the property by the course they have taken in dealing with it that the income is insufficient to pay the annuity to John F. Powell and his wife. There is nothing clearer in the will than it was the purpose of the testator to maintain a support for his son and his son’s, wife during their lives. I can bring myself to no con*457elusion that wonld sanction the power of the trustees to vary, change, or modify the terms and directions of the will. I think, therefore, that the cause ought to he reversed, and the cause heard on its merits. It may be that the evidence would not sustain the allegations of the bill, but if it does, certainly relief should be granted. If the allegations that no notice was served on John P. and Virginia Powell, and none on any remainderman, he true, the sale should be set aside and held for naught. If it be true, as alleged, that the executor and trustees represented conflicting interest, the sale should be set aside for this reason.
I am authorized to state that Smith, C. J., 'concurs in this dissent. .