No foundation for the order for a substituted service on Mr. Jenckes appears; and it cannot have any *891effect to bring any party before tbe conrt. The question is, whether the court can or ought to proceed in the absence of Maria L. Do Valle and her children. Independent of the forty-ninth rule, this would not admit of a moment's doubt Their interests are not only necessarily affected by any decree the court can make, but they are the sole subjects of the controversy. Unless the 49th rule has changed the law of such a case as this, they are indispensable parties without-whom the court can make no decree. Naming them as parties to the bill, and praying process against them when they are out of the jurisdiction, and no service of proerss has been made, rendering it their duty to appear, does not enable the court to proceed. Browne v. Blount, 2 Russ. & M. 83, and the cases there cited; Shields v. Barrow, 17 How. [58 U. S.] 130; Dandridge v. Custis, 2 Pet. [27 U. S.] 370.
[NOTE. For the dismissal of a bill, seeking the same relief, filed by complainant in the district of Khode Island, see Case No. 3.430.]What I have to consider, therefore, is whether the 49th rule applies to this case. That rule is as follows: “In all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the- proceeds, or the rents and profits in the' same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents, and profits, parties to the suit; but the court may, upon consideration of the matter at the hearing, if it should so think fit, order such persons to be made parties.” The rule does not enable such trustees to represent those interested in the real estate in all cases; but only in the same manner and to the same extent as executors or administrators represent those interested in suits respecting personal estate. Now it is true that executors and administrators generally, represent pecuniary legatees in suits by third persons, making demands on the personal estate. It is their duty to resist all unfounded claims, and they are clothed by the law with ample powers to do so. But it does not follow that there may not be cases where a question arises directly between a legatee and a third person, of such a nature that the court ought not to be satisfied to allow the executor or administrator to represent the legatee. The case of the Marquis of Hertford v. Countess de Zichi, 9 Beav. 11, was such a case. And in my opinion the ease at bar is stronger than this one in the 9 Beav. Here the controversy is directly between the complainant and Maria L. De Valle, named in the will as the daughter of the testator, and her children. The sole object of the bill is the destruction of interests which the will attempts to confer on them. Their title is denied on the two grounds of their alienage and the illegitimacy of Maria L. De Valle. I entertain doubt whether these trustees can safely and properly be allowed to represent Mrs. De Valle and her children, for the purpose of litigating in their absence, the question of her legitimacy, or the status of herself and her children in respect to citizenship. It may be said that it will be the duty of the trustees to give Mrs. De Valle and her children notice of the suit, and obtain from them the information necessary to defend it, and that it must be presumed they will perform this duty. Be it so. But this does not meet the difficulty. Have not Mrs. De Valle and her children a right to the benefit of their answers, as evidence in the cause, respecting any facts within their personal knowledge? It is true neither of them can have personal knowledge of the marriage of the testator, if there was a marriage, and it preceded Mrs. De Valle’s birth; but for aught I can know, she may have been made legitimate by a marriage with her mother after her birth, and within her personal knowledge; and however this may have been, it is not safe to assume that she has not personal knowledge of facts bearing directly on the question of her own legitimacy; and .therefore, if this be a case within the 49th rule, as I am of opinion it is, it seems to me to be"one where I am bound to exercise the discretion conferred by the last clause of the rule and make such order that Mrs. De Valle and her children shall, at least, have opportunity to become effectually parties to the suit, and to be heard therein, before I make any decree affecting their interests.
I am therefore of opinion that an order should be entered, that the cause stand over, with liberty to serve on Mrs. De Valle and her husband, if living, and on each of her children, a copy of the bill, to the end that they may appear and become parties, if they shall think fit And let some day of appearance be named, which will allow reasonable opportunity to appear, after tbe service made. In respect to the person already served, who is said to be one of her children, if he be a minor, a proper petition should be presented to "appoint a guardian ad litem.