Hoskins v. Holmes County Community Hospital

• Decision Date: 07 April 1924
• Docket Number: 23812
• Citation: 99 So. 570,135 Miss. 89
• Court: Mississippi Supreme Court
• Parties: HOSKINS v. HOLMES COUNTY COMMUNITY HOSPITAL et al. [*]

99 So. 570

135 Miss. 89

HOSKINS v. HOLMES COUNTY COMMUNITY HOSPITAL et al. ^[*]

No. 23812

Supreme Court of Mississippi

April 7, 1924

Division B

APPEAL from chancery court of Holmes county, HON. T. P. GUYTON Chancellor.

Caveat by the Holmes County Community Hospital and others against Mollie W. Hoskins, opposing probate of will of Signora Allen deceased. From the judgment rendered, said Mollie W. Hoskins appeals. Reversed and remanded.

Judgment reversed and cause remanded.

R. H. & J. H. Thompson and Fulton Thompson, for appellant.

It is shown by all authorities that in a suit contesting a will all parties having an interest under the contested will should be made and are necessary parties, unless they be so numerous as to render it impracticable to make all of them parties, and in that case some representatives of each class of the interested parties must be brought before the court. In this case the parties to whom specific legacies were given by the alleged unprobated previous will, upon which contestants base their asserted right, were not parties to the suit, nor could they have been made parties by the contestee, Miss Hoskins. If two or more wills can be contested in the same suit, it will necessarily follow in many instances that necessary parties to some of the contests will not be before the court and cannot be brought into the case by one or the other of the litigants. This warrants the conclusion, we submit, that when a contestant of a will bases his right to make the contest upon an alleged previous will, he will not be allowed to proceed until he shall have had the previous will duly probated and judicially decreed to be the last will and testament of the testator.

In this case the heirs of the testatrix are not made parties to this suit. The administration of a decedent's estate is in its nature a proceeding in rem and non-residents can be made parties by publication; this is especially true where, as in this case, real estate is involved. The reason of the rule stated is this: The courts should never be required to entertain two or more suits contesting the same will.

If two or more contests of the same will were allowed, one of them might result in overthrowing the will and the other in establishing it; contradictory and absurd results. Our statute, Code 1906, section 1998, requires all interested persons to be parties to one contest. The contestants in the case at bar have unwarrantedly assumed that the unprobated will upon which they base their right to consent proves itself and is not subject to contest and cannot be controverted. It was not permissible for the contestee to make Miss Allen's heirs parties to the suit. Some questions are so fundamental in every case that the courts themselves are under duty to notice them, even when the litigants fail to call attention to them; and in cases contesting wills the matter of proper parties is fundamental and the trial courts should of their own motion, see that all necessary parties are before the court; this is true, as we submit, of appellate courts, as well as of courts of original jurisdiction.

The effect of the final decree of the chancery court if unreversed.

If the decree of the chancery court shall be affirmed it will be, as between the parties before the court, we fear, res adjudicata of the validity of the unprobated will under which contestants claim their asserted right in this case. If this be true, peculiar results will follow. In any proceeding to probate will number "One," under which contestants claim, in the court of the District of Columbia, the courts of this state will be held to have injected themselves into the case there pending, if one be now pending, and to have decided the question there at issue, and that too without any effort having been made to probate said will (number "One") in this state and without having acquired jurisdiction of the persons of necessary parties to a contest of that will. Orderly judicial procedure evades such results.

Boothe & Pepper and Teat & Odom, for appellees.

I. In Thompson on Wills, par. 518, it is stated as a general rule of law that: "The right to contest a will exists in behalf of the heirs at law, a surviving spouse, legatees and devisees, beneficiaries under a trust, claimants under a prior will and claimants under a subsequent will." To the same effect see Remsen on Preparation and Contest of Wills, page 373; 28 R. C. L. par. 390, under Wills; 40 Cyc. 1241, 1243; Kostelecky v. Scherhart, et al., 68 N.W. 591; In Re Langley's Estate, 73 P. 824; Egbert v. Egbert, 217 S.W. 365; Crowell et al. v. Davis, 123 N.E. 611; In Re Wynn's Estate (Mich.), 159 N.W. 492; Ruth v. Krone (Cal.), 103 P. 960.

II. It is contended on this appeal for the first time that the proper parties to this suit were not in court. This is urged as a reason why this case should be reversed. It seems to me that a complete answer to this proposition is that it was as much incumbent upon the appellant to bring the necessary parties in court as it was upon the contestants. That the statute required such necessary parties to be brought into court does not place the duty alone upon the contestants, and since neither of the parties herein raised this point in the lower court, it is now too late to complain. Besides the appellant has not shown wherein she would be prejudiced on account of the failure to bring in other parties for the reason that the will under which she claims has been held null and void.

Noel & Neilson and Ruff & Thompson, for appellant in reply.

Contestants, appellees here, failed to make all persons interested in the will contest, parties, including Mrs. Olivia Bertron, devisee in the two wills executed by Miss Allen in September, 1922, and the heirs of Miss Allen, and the other parties claiming with them under the will of October 12, 1922. Code of 1906, section 1823. Only the plaintiff in an action, or complainant, can make parties defendant. Defendants can neither by cross-bill, nor otherwise, bring additional parties into any suit. Weis v. Aaron, 75 Miss. 138; Ladner v. Ogden, 31 Miss. 332.

Argued orally by R. H. Thompson and E. F. Noel, for appellant, and A. M. Pepper and H. T. Odom, for appellees.

OPINION

ETHRIDGE, J.

On the 9th day of December, 1922, Miss Signora Allen departed this life at Lexington, Holmes county, Miss. On the 11th day of December, 1922, the appellant, Miss Mollie W. Hoskins, filed a petition in the chancery court of Holmes county, alleging that Signora Allen, late of Holmes county, Miss., departed this life leaving a last will and testament, duly signed, published, and attested, which she, in pursuance of the statute, herewith presents for probate. She alleged further that Signora Allen had her fixed place of residence in Lexington, Holmes county, Miss., and that her said will is subscribed by E. W. Pickens and J. M. Roach as witnesses to the signature and publication thereof; that the testatrix in said last will and testament nominated the petitioner as the executrix of said will without bond; and that said executrix was seized of real estate and that petitioner believes that said testatrix at the time of her death was the owner of personal property consisting of securities, money, and jewelry in the safety deposit vaults in the District National Bank of Washington, D. C., of the value of about five thousand dollars of which the testatrix had been unable to obtain or see for about one year prior to her death, although she had been diligent in her efforts to obtain possession of same since August, 1922. It is further alleged that the petitioner was desirous of meeting and fulfilling the wishes of the testatrix, and desiring that said property may be collected and preserved and that said will may be executed according to the requests of said testatrix, and according to the intent and purpose of said will, and that she is willing to undertake the office and trust confided in her and that she is in no way disqualified under the law from serving as executrix, presented with her petition the said alleged will which is in the following words:

"I, Signora Allen, of Lexington, Mississippi, hereby make and declare this to be my last will and testament, and hereby revoke any will I may have heretofore made. I give and bequeath my whole estate both personal and real as follows:

"1. I give and bequeath the whole of my estate real and personal to Miss M. W. Hoskins who has been my best friend and who is looking after me during my illness; and I constitute her my executor without bond and waive her making any settlements or returns to court.

"Witness my signature this the 7th day of November, 1922.

"SIGNORA ALLEN.

"We certify that the foregoing will was published, declared and signed by Miss Signora Allen in our presence, and that we, at the request of said Miss Signora Allen and in her presence and in the presence of each other signed our names as subscribing witnesses thereto.

"J. MONROE ROACH.

"E. W. PICKENS."

J. Monroe Roach made the following affidavit as subscribing witness:

"In the matter of a certain instrument of writing purporting to be the last will and testament of Signora Allen, deceased:

"Be it remembered that in vacation of the chancery court of Holmes county, Mississippi, before the undersigned authority an officer authorized to administer oaths, in and for said county and state, on the 11th day of December, 1922 personally appeared J. M. Roach, one of the subscribing witnesses to a certain instrument of writing purporting to be the last will and testament of Signora Allen, deceased, late of Holmes county, Mississippi, who being by me duly sworn, states upon his oath that the said Signora Allen signed, published and declared said instrument of...