said Mrs. Emma Means, the extent of which cannot now be determined." Similar findings were made as to the other lots, and also as to all the lots, in favor of the other grandchildren, Claude Edward Means and Dorothy Matele Means, children of Claude E. Means. The appellant Anderson's interest is found to be that of mortgagee of the interest of appellant Cole in lot 5. The appellants attack these findings (other than the last) and the conclusions of law drawn therefrom and the directions of the court as to the disposition of the funds in accordance therewith, and contend: (1) That the remainder created by the deed of J. E. Hollenbeck vested at once in the children of Emma Means, under the provisions of section 694 of the Civil Code; (2) That whether such remainder be regarded as vested or contingent, service of process upon and the appearance in the various proceedings by Mrs. Means, her children with the guardian of the latter, by application of the principle of virtual representation, operated to bind the interests of the grandchildren yet unborn; and (3) that certain of the proceedings were in rem and jurisdiction of the interests of the grandchildren was obtained by following the statutory method of bringing the property into court.

The proceedings in which it is claimed jurisdiction of the interests of the unborn grandchildren was thus acquired so as to estop or bar them from now claiming any interest in the sum found to be the value of the property are as follows: In support of the titles of Cole and Winans (which may be considered together), the following judgment-rolls: (a) The rolls in actions Nos. 14,109 and 10,983 to foreclose street-assessment liens against certain portions of said property, brought against Mrs. Emma R. Means, her husband J. W. Means, the defendants named herein who are children of Emma R. Means, and W. E. Rogers, who is the lessee of Mrs. Means, and also of the children under a proceeding in equity (No. 8,616) by their mother and guardian to obtain consent to the execution of a lease in their name; (b) that in an action to quiet title, No. 18,501, by Abbott, the successor in title of the purchasers at the sales made pursuant to the decrees in the above mentioned foreclosure proceedings, against Mrs. Means, her husband and children; (c) that in an action, No. 21,002, brought by Winans against Abbott, trustee, etc., Mrs. Means, husband and children, to foreclose a mortgage on the portions of the premises now claimed by Winans and Cole; (d) that in an action to quiet title to the same premises, No. 24,146, by Gosch, the successor in title to the purchaser (McCollum) at the commissioner's sale made in execution of the decree in action No. 21,002, against four of the Means children, J. Worthington Means, Claude E. Means, Fairy A. Means and Juliet E. Means, minors; (e) and that in an action by the same plaintiff to quiet title (No. 28,196), against Mrs. Means, her husband and five children. Incidental to and explanatory of these proceedings, it is also necessary to consider the effect of the proceeding No. 8,616 above referred to, and of probate proceeding No. 5,874; of the lease of Mrs. Means and children to

W. E. Rogers, and the deeds, mortgages and other instruments through which the parties to these respective actions and proceedings acquired the rights upon which such actions were based. These are as follows: Sheriff's deed in No. 14,109 to A. J. Mead, and deed of latter to R. W. Abbott; Sheriff's deed in No. 10,983 to Stella M. Johnson; her deed to Charles A. Cole and the deed of the latter to R. W. Abbott; a declaration of trust by R. W. Abbott for the benefit of Emma Means and the heirs of her body; mortgage of Abbott, trustee, to Winans; a deed by Mrs. Means to Charles A. Cole; deed by Mrs. Means and her daughter Elfie O. to M. McCollum; deed by McCollum, et ux., to C. H. Gosch, and the deed of Emma R. Means, Elfie O. Means and J. W. Means to C. H. Gosch.

In support of the contention of appellants Joyce (T. F. and S. A.) that the interests of the grandchildren in lot 6 were acquired by them, the following additional proceedings and matters are relied upon: The judgment-rolls in: (f) a consolidated action to foreclose certain mechanics' liens on the building constructed by Rogers, lessee, under the lease above mentioned, No. 12,444, against Rogers, Mrs. Means, her husband and children; and (g) in an action to quiet title, No. 19,205, brought by Horace Hiller, who purchased the property at the sale under the decree foreclosing the mechanics' liens, against Mrs. Means, her husband individually and as guardian of the children, the five children and others whose names are not material here.

[1] Under the code of this state the remainder granted to the heirs of the body of Emma Means by the deed of J. E. Hollenbeck was an interest which the remaindermen took by purchase, and not by inheritance (Civ. Code, sec. 779). [2] It was a contingent interest, since it was future in character, and the person in whom, and the time of the happening of the event upon which it was limited to take effect, were both uncertain at the time of its creation. These uncertainties both continued to exist until after the various proceedings were had upon which appellants base their respective titles (sec. 695). It did not and could not become vested until the death of the life tenant, since she could have no "heirs" until her decease. In the interval all of her children might die, leaving the entire estate to the second generation, or the grandchildren. [3] The interests of the latter are not void because of the improbability of the contingency on which they are limited to take effect (sec. 697). [4] Neither can their interests be regarded as mere possibilities, such as the expectancy of an heir apparent (sec. 700), as they do not depend upon the law of succession to determine whether or not they will take effect, and they cannot be defeated by the testamentary or other act of the ancestor. [5] It is also apparent that section 694 has no application here. That section is, in effect, the enactment into a statute of the rule laid down in Fearne on Contingent Remainders and Executory Devises: "The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, uni

versally distinguishes a vested remainder from one that is contingent." (Butler's [6th Ed.], p. 216.) This declaration should be read in connection with the language of Fearne which immediately follows it, to-wit: "In short, upon a careful attention to this subject we shall find, that wherever the preceding estate is limited, so as to determine on an event which must certainly happen; and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate is limited so as to determine only on an event which is uncertain, and may never happen; or wherever the remainder is limited to a person not in esse or not ascertained; or wherever it is limited so as to require the concurrence of some dubious uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent." (P. 217.)

In Williamson v. Williamson, 57 Ky. 329, p. 368, it was said of the rule distinguishing a contingent from a vested remainder, first above quoted from Fearne: "This principle, however general and universal it may be, has no application in a case like this, where the event which renders the possession vacant also resolves the contingency upon which the limitation depends, and makes that certain which was before uncertain. The possession becomes vacant by the death of the ancestor, and by the same event the persons who properly sustain the character of 'heirs' are ascertained and rendered certain. This rule, therefore, cannot operate as a test in a case like this, where the estate in remainder is given to the heirs of the same person who is devisee for life."

[6] The remainder which we are considering is a future interest which will vest in those grandchildren of Mrs. Means whose father or mother, child of Mrs. Means, fails to survive the grandmother, and is an alternative contingent remainder under section 696 of the Civil Code. In some of its characteristics it resembles the "contingent remainder, or alternative remainder in fee, with a double aspect", of the common law. Such estates usually arose where a remainder was limited to the issue of some person named and, upon failure of such issue before the death of the life tenant. to some other person in the alternative. Of the estates so created it is said they are both contingent fees limited merely as substitutes or alternatives one for the other, and not to interfere, but so that only one shall take effect; for instance, the fee of the grandchild in the case at bar being substituted in place of the fee of its father or mother if the latter should fail of effect by the grandmother surviving such father or mother. (Pingrey on Real Property, sec. 1008.) The one remainder is a substitute for, and not subsequent to, the other. Neither is, by its terms, to wait until the other shall have once taken effect and afterwards been determined. (Washburn on Real Property [6th Ed.], sec. 1575; Tiedeman on Real Property, sec. 415; Fearne on Contingent Remainders, 373; Waddell v. Rattew, 5 Rawle, 234.) [7] They are not remainders expectant, the one to take effect after the other, but

are contemporary. (Luddington v. Kime, 1 Ld. Raymond, 203; 91 English Reports, King's Bench [Reprint], p. 1035.) The taking by the unborn remainderman is not a contingency dependent upon a contingency, but the same contingecy which may happen several ways. (Plunket v. Holmes, 83 English Reports, p. 17.)

[8] The conclusion that the interests in remainder of the defendant grandchildren were and are contingent instead of vested does not preclude the application to them of the principle of virtual representation, if the proceedings in which such representation was exercised were such as to otherwise justify it. The rule as to virtual representation is stated broadly by the Supreme Court of the United States in Miller v. Texas & Pacific R. R. Co., 132 U. S. 672, by recognizing the holding of Lord Redesdale in Giffard v. Hort, 1 Schoale & Lef., 386, as follows: "Where all the parties are brought before the court that can be brought before it, and the court acts on the property according to the rights that appear, without fraud, its decision must of necessity be final and conclusive. It has been repeatedly determined that if there be tenant for life, remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remaindermen are barred. Courts of equity have determined on grounds of high expediency that it is sufficient to bring before the court the first tenant in tail in being, and if there be no tenant in tail in being, the first person entitled to the inheritance, and if no such person, then the tenant for life." So, also, the New York court in Kent v. Church of St. Michael (N. Y.), 32 N. E. Rep. 704, uses the following language: "Where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate for all purposes of any litigation in reference thereto, and affecting the jurisdiction of the courts to deal with the same, represent the whole estate, and stand, not only for themselves, but also for the persons unborn. This is a rule of convenience, and almost of necessity. The rights of persons unborn are sufficiently cared for if, when the estate shall be sold under a regular and vaid judgment, its proceeds take its place and are secured in some way for such persons." The rule is declared in Story's Equity Pleadings, section 144, and its limitations considered in the sections following. See also: Finch v. Finch, 2 Ves. Sr. 491, 28 Eng. Rep., p. 316; Reynoldson v. Perkins, Amb. 564, 27 Eng. Rep.; p. 362; Cockburn v. Thompson, 16 Ves. Jr. 321, 33 Eng. Rep., p. 1007; Harrison v. Wallton (Va.), 30 S. E. Rep. 372; Hale v. Hale (Ill.), 33 N. E. Rep. 858, p. 867; McCampbell v. Mason (Ill.), 38 N. E. Rep., p. 675; Miller v. Foster (Tex.), 13 S. W. Rep., p. 531; Hermann v. Parsons (Ky.), 78 S. W. Rep. 125; Doremus v. Dunham (N. J.), 37 Atl. Rep. 62; Gavin v. Curtin (Ill.), 49 N. E. Rep. 523; Loring v. Hildreth (Mass.), 49 N. E. Rep. 652.

The rule and its reason are declared in Sweet v. Parker, 22 N. J. Ed. 455, as follows: "Many exceptions exist to the general rule that in equity all must be parties who have an interest in the object of the suit. The reason or principle of such excepttions is stated as follows in Calvert on Parties, Sec 2, p. 20:-'If

they are required to be parties merely as the owners and protectors of a certain interest, then the proceedings may take place with an equal prospect of justice if that interest receives an effective protection from others. It is the interest which the court is considering, and the owner merely as the guardian of that interest; if, then, some other persons are present, who, with reference to that interest, are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be so required, and the court may, without putting any right in jeopardy, take its usual course and make a complete decree.'' The rule is made applicable to representation of persons living, as well as those unborn, as in the case of an association whose members are numerous. (Cockburn v. Thompson, 16 Ves. Jr. 321, p. 326; 33 Full Reprint, Eng. Rep., p. 1007.) This principle is carried into our statutes by the provisions of section 388 of the Code of Civil Procedure, where the joint property of all may be bound by serving the summons upon one or more of a larger number of associates. Other statutory proceedings based thereon might be named. The doctrine is said by some of the cases to be applied only where the law regards the interest of the representative so identical with that of the person represented that motives of self-interest will induce the person acting as the representative to defend the property as his own. Other cases following the suggestion in Calvert on Parties urge in support of the rule the motives of affection where the representative of the unborn child is its parent; all, however, holding that all persons in being capable of appearing who are interested must be brought into court. The protection of a person whose property is brought into court by such representation is to be found in his right to attack the decree on the ground of fraud or collusion in its procurement. In the absence of such attack, the decree is final and conclusive as to the status of the property. (Baylor v. Dejarnette, 13 Grattan, 152; Faulkner v. Davis, 18 Grattan, 651, p. 690.) These two cases have been more recently approved in the case of Harrison v. Wallton (Va.), 30 S. E. Rep. 372. (See, also, Ruggles v. Tyson, 104 Wis. 500; Mayall v. Mayall [Minn.], 65 N. W. Rep. 942; Mathews v. Lightner, 88 N. W. Rep. 992; Gray v. Smith, 76 Fed. Rep. 525, 532; Arndt v. Griggs, 134 U. S. 321.)

The application of the principle as here contended for is not a common one, and no decision by a court of this state so applying it has been called to our attention. The convenient use, which it served in extricating involved real estate titles at common law and in common-law jurisdiction, does not appeal with equal force to conditions existing under the code, although it is true, as said by some of the cases, that it is in accord with the trend of modern law toward making real property as readily transferable as is consistent with fair dealing and protection against fraud. That it tends to furnish some certain and convenient method of determining all unsettled questions respecting such titles, and that the well being of every community requires the latter. (Arndt v. Griggs, 134 U. S., p. 321), is not alone sufficient to justify its indiscriminate adoption. So well have these matters been covered by statute