Eddie v. Greene Parke's Ex'r

• Decision Date: 31 March 1862
• Citation: 31 Mo. 513
• Parties: JAMES EDDIE AND WIFE, Plaintiffs in Error, v. GREENE PARKE'S EXECUTOR, Defendant in Error.
• Court: Missouri Supreme Court

31 Mo. 513

JAMES EDDIE AND WIFE, Plaintiffs in Error,

v.GREENE PARKE'S EXECUTOR, Defendant in Error.

Supreme Court of Missouri.

March Term, 1862.

1. In a suit, under the statute of Wills, to set aside or establish a will, all parties interested in the estate of the deceased must be made parties either as plaintiffs or defendants.

2. Where the heirs-at-law brought suit to set aside the probate of a will without making the devisees parties, held, that a demurrer by the executor for defect of parties was well taken.

Error to St. Louis Circuit Court.

The facts of the case are stated in the opinion of the court.

Ed. Bates, for plaintiffs in error.

I. The proceeding to set aside a will formally probated is not an action brought by one party against another, nor is it instituted under the present Practice Act.

II. If the devisees are necessary parties because they take an interest under the will, then in case of a suit to probate a will all the heirs-at-law must be made parties defendant, because the will would affect their inheritance. But the law is not so and never was. (R. C. 1855, Wills, §§ 14, 16, 30.)

III. This proceeding of the circuit court is but the exercise of its superintending control over the probate court, which may be, but need not necessarily be, by appeal, but may be in any one of a variety of legal ways. (Dickey v. Malechi, 6 Mo. 182; Graham v. O'Fallon, Exec'r of Mullanphy, 4 Mo. 338; Harvey & wife v. Chouteau, Exec'r of Destrehan, 14 Mo. 587; Armstrong v. Farrar, 8 Mo. 627; Story Eq. Pl. p. 145, § 150.)

A. J. P. Garesché, for defendant in error.

I. All parties interested in the subject matter of the suit

must be joined. (R. C. p. 1218, Practice, art. 2, § 3, 4, 5; art. 11, § 27, p. 1276; Rush v. Rush, 19 Mo. 441; Farrell's Adm'r v. Brennan, 25 Mo. 93; Taylor v. Wilburn, 20 Mo. 306; Tibbats v. Berry, 10 B. Mon. 473.)

II. If the adverse parties be not brought in, the judgment would be void. (Ross v. Strong, 7 Mo. 465.)

BAY, Judge, delivered the opinion of the court.

James Eddie and Elizabeth his wife filed in the circuit court of St. Louis county, at the February term, 1858, a petition to contest the validity of the will of Greene Parke, who died in October, 1857.

The petition avers that said Parke left no widow, and no descendants except the said Elizabeth and her two infant children; that by said will he gave to said Elizabeth a legacy of fifty dollars, and gave the residue of his estate, consisting of personal and real property, of the value of from three to six thousand dollars, to his grand-children, the children of said Elizabeth. The petitioners seek to set aside the will upon the ground that, at the time of the making thereof, the testator was not of sound and disposing mind. The petition was brought under the statute relating to wills, which provides “that if any person entrusted in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the circuit court of the county contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not; which shall be tried by a jury, or, if neither party require a jury, by the court.”

It is also provided that the verdict of the jury, or the finding and judgment of the court, shall be final, saving to the court the right of granting a new trial, as in other cases, and to either party an appeal in matters of law to the supreme court.

It appears from the record that neither the executor or devisees under the will were made parties in the petition; but the executor entered his appearance, and was made a party defendant. The defendant then demurred to the petition upon the ground that the devisees under the will were not made parties to the suit. The court below sustained the demurrer, and this is assigned as error.

Although this...