Ditz' Estate, In re

• Decision Date: 14 January 1964
• Docket Number: No. 51161,51161
• Citation: 255 Iowa 1272,125 N.W.2d 814
• Parties: In the Matter of the ESTATE of Joe DITZ, Deceased. William BUSCH et al., Plaintiffs-Appellants, v. Rose BAUTE et al., Defendants-Appellees, and Dennis Feddersen et al., Additional Defendants-Appellees.
• Court: Iowa Supreme Court

Page 814

125 N.W.2d 814

255 Iowa 1272

In the Matter of the ESTATE of Joe DITZ, Deceased.

William BUSCH et al., Plaintiffs-Appellants, v. Rose BAUTE et al., Defendants-Appellees, and Dennis Feddersen et al., Additional Defendants-Appellees.

No. 51161.

Supreme Court of Iowa.

Jan. 14, 1964.

Wm. B. Norton, Lowden, Rees, Remley & Heiserman, Anamosa, and Van Matre & Van Matre, Mexico, Mo., for plaintiffs-appellants.

Casterline & Hamiel, Tipton, for Phyllis Bray, plaintiff-appellant.

Otto L. Schluter, Cedar Rapids, Trustee, pro se.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for Otto L. Schluter, trustee, Fred Feddersen, co-executor and trustee, Norman Bergmann, co-executor, Linda Resewehr, Willie Willert, Augusta Portwig, St. John's Evangelical & Reformed Church, Clarence, Iowa, American Legion Post, Clarence, Iowa, and the Library Association of Clarence, Iowa, for defendants-appellees.

James T. Remley, Anamosa, for Guardian ad litem for Harold Resewehr, defendant-appellee.

Elliott, Shuttleworth & Ingersoll, Cedar Rapids, for St. Luke's Methodist Hospital, defendant-appellee.

Max R. Werling, Tipton, and Newport & Wine, Davenport, for Fred Feddersen as co-executor, trustee and as an individual.

LARSON, Justice.

Plaintiffs, heirs-at-law of Joe Ditz, deceased, filed their petition in two divisions attacking the probate of his will and one codicil. Division I alleged decedent was of unsound mind and lacked testamentary capacity. Division II alleged paragraph 13 of the will was invalid for various reasons. The second division was dismissed on defendants' motion and no issue is raised thereon. When the first division was later dismissed, plaintiffs stood on the ruling and appealed.

We summarize the facts.

Joe Ditz died May 29, 1961. His will was admitted to probate June 15, 1961. In conformity with the provisions of subparagraph 3 of Section 614.1, Code 1958, I.C.A., the executors gave notice of the probate of the will, the last service being on July 26, 1961.

June 30, 1962, Elmer Resewehr, Erwin Resewehr, Leo Resewehr, and Phyllis Bray, appellants herein, joined with five other interested parties in an action to set aside the probate of the will. Together they constituted a part of decedent's heirs, the remainder being named as defendants. All beneficiaries under the will, except Fred Feddersen, Dennis Feddersen, Marcia Feddersen, Mary Feddersen, Susan Federsen, Dorothy Sennett, and Norman Bergmann, trustee, were named defendants.

October 26, 1962, pursuant to court order, the plaintiffs filed an amendment to their petition of June 30th naming as additional defendants those listed above, and on November 20, 1962, certain defendants originally served before July 26, 1962, filed their motion to dismiss on the ground that the action is barred by the statute of limitations and, since plaintiffs participated in a prior declaratory action to construe Item 13 of decedent's will, they are now estopped from bringing this action.

October 9, 1961, all plaintiffs in this action except Phyllis Bray had filed a petition for declaratory judgment contending Item 13 of decedent's will and the trust therein provided were invalid. When the trial court held adverse to those contentions, they appealed and we affirmed on November 13, 1962. In the Matter of the Estate of Joe Ditz, Deceased, Iowa, 117 N.W.2d 825.

December 5, 1962, plaintiffs filed a motion to strike defendants' motion to dismiss on the ground that the ruling of July 21, 1962, was res adjudicata.

February 4, 1963, the trial court sustained defendants' motion to dismiss plaintiffs' amended petition, and the remaining four plaintiffs appeal.

Errors relied upon for reversal are: (1) The trial court erroneously ruled the action to set aside the will was not timely brought. (2) The court erred in holding, by reason of the prior declaratory judgment action, that the plaintiffs including Phyllis Bray, not a plaintiff in that action, are estopped to bring the instant action, by ruling that the prosecution to final judgment in a declaratory judgment action precludes plaintiffs from maintaining this action, as it would constitute a splitting of their cause of action; that the prior judgment in the declaratory action was res adjudicata of the issues in the instant action; that by prosecuting the declaratory judgment action plaintiffs elected their remedy; and that the court erred in overruling plaintiffs' motion to strike defendants' motion to dismiss plaintiffs' petition as amended, in that said motion constituted a second motion no dismiss in violation of Rule 111, R.C.P., 58 I.C.A.; and that certain alleged defenses based upon the declaratory judgment action must be pleaded in order that plaintiffs could deny or avoid them.

I. At the outset we are faced with the troublesome question of whether the original proceeding to set aside the probate of the Joe Ditz will was timely brought. It is not denied that plaintiff's petition was filed within the year allowed to commence such a proceeding. It appears that defendants herein and all other interested persons were duly served with notice thereof within the required year, except for seven beneficiaries under the will who were subsequently brought in by order of the court in the manner provided by Rule 34, R.C.P. Thus, the nub of this controversy is whether the failure to serve these seven persons prior July 26, 1962, a year after the notices were given interested persons, as provided in subsection 3 of Code Section 614.1 was a jurisdictional defect requiring a dismissal.

Appellants' position has been well summarized in this statement found in Volume 1 of Henry's Probate Law and Practice (6th Edition), § 4, p. 229, at 231: 'Such action being purely a statutory proceeding, the requirements of the statute in this respect must be complied with. But where an action has been properly begun within the time limited, and an amended complaint making new parties is filed after the time limited has expired, the action must be deemed commenced against all the parties thereto from the time when the suit was originally instituted. The interest of the parties is held joint and inseparable, and as such proceeding is substantially one in rem, the court cannot take jurisdiction of the subject matter by fractions. So where a petition to contest a will is filed within the statutory period of limitation, although a part only of the persons interested are made parties thereto, the right of action is saved as to all who may ultimately be made parties to such action, notwithstanding the fact that some of them are not brought into the case until after the period of limitation has expired. Therefore, in such case, if the right of action is saved to one it is necessarily saved to all.'

Before adopting this statement we must examine our statutes to see if there are any specific provisions requiring that all interested or necessary parties be served with notice of the suit to set aside the probate of a will within the year limitation provided in our Code. Code Chapter 614, I.C.A. relates to the statute of limitations.

Section 633.38, Code 1962, I.C.A., provides: 'Wills, foreign or domestic, shall not be carried into effect until admitted to probate as hereinbefore provided, and such probate shall be conclusive as to the due execution thereof, until set aside by an original or appellate proceeding.'

Section 614.1, Code 1962, I.C.A., referred to by the code editor under Section 633.38, provides: 'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared. * * * 3. * * * those brought to set aside a will, within two years from the time the same is filed in the clerk's office for probate and notice thereof is given; provided that after a will is probated the executor may cause personal service of an original notice to be made on any person interested, which shall contain the name of decedent * * *; said notice shall be served in the same manner as original notices and no action shall be instituted by any person so served after one year from date of service.' (Emphasis supplied.)

We find no specific code provisions as to how an action shall be instituted by a person so served. There are no requirements as to who must be served nor when, granting the person filing the petition to set aside does so within the limitation in Section 614.1. To commence an original proceeding to set aside, we may assume the person filing the petition must serve at least one other interested party within the limitation period, but must he serve them all within the limitation period to sustain the court's jurisdiction of the persons and the subject matter? If he serves one other interested party before the limitation period expires, may others be added later as provided in Rule 25, R.C.P.? Are the Rules of Civil Procedure of aid in obtaining complete required relief?

The trial court came to the conclusion all interested parties must be served within the limitation period, although its first reaction was that the seven parties not served within the year were indispensable and ordered them brought in under Rules 25 and 34 R.C.P Rule 25(c), Rules of Civil Procedure, provides: 'If an indispensable party is not before the court, it shall order him brought in. When persons are not before the court who, although not indispensable, ought to be parties if complete relief is to be accorded between those already parties, and when necessary jurisdiction can be obtained by service of original notice in any manner provided by these rules or by statute, the court shall order their names added as parties and original notice served upon them. If such jurisdiction cannot be had except by their consent or voluntary appearance, the court may proceed with the hearing and determination of the cause, but the judgment rendered therein shall not affect their rights or liabilities.'

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