39 Fla. 145 | Fla. | 1897
We held in Lyon and Hendricks’ Executors vs. Register, 36 Fla. 273, 18 South. Rep. 689, that the rights and interests of necessary and indispensable parties can not be adjudicated when they aró not properly before the court, and that where a co-tenant defendant dies pending a suit for partition it is necessary that the heir or devisee of such co-tenant be made a party defendant before proceeding with the partition, and that the executor of such deceased co-tenant is not a proper party to represent the heir or devisee where it is not shown by the will that such executor is invested with and authorized to represent the title. These principles are decisive of this appeal. If, upon the death of Mrs. Prentiss, the trust upon which Mr. Agnew held the estate terminated, and the title to the property devolved upon the legatees under Mrs. Prentiss’ will, they should have been made party defen d-ant, or there should have been a proper showing that the executor was by the will invested with and authorized to represent the title. If the trust continued after the death of Mrs. Prentiss there should have been a proper showing of this fact, with allegations of title and powers in the trustee sufficient to authorize him to represent the property sought to be partitioned, without the presence of his new ceshoi que trust as a party defendant. Rivas vs. Summers, 33 Fla. 539, 15 South. Rep. 319.
The decree appealed from is reversed, and the cause remanded for further proceedings consistent with this-opinion.