Prebster v. Henderson

• Decision Date: 27 June 1916
• Docket Number: 22,784
• Citation: 113 N.E. 241,186 Ind. 21
• Parties: Prebster et al. v. Henderson et al
• Court: Indiana Supreme Court

113 N.E. 241

186 Ind. 21

Prebster et al. v. Henderson et al

No. 22,784

Supreme Court of Indiana

June 27, 1916

Rehearing Denied January 5, 1917, Reported at: 186 Ind. 21 at 28.

From Boone Circuit Court; Meade Vestal, Special Judge.

Action by Anderson Prebster and others against Ward Henderson and others. From a judgment for defendants, the plaintiffs appeal.

Reversed.

Bachelder & Bachelder, William J. Wood and Thad S. Adams, for appellants.

A. J Shelby, George C. Harvey, Drenan R. Harvey, Samuel Ashby and George R. Harvey, for appellees.

OPINION

Lairy, J.

The record in this case shows that on February 18 1913, which was the thirty-eighth judicial day of the January term of the Hendricks Circuit Court, a paper purporting to be the will of Eliza Henderson was offered for probate in that court. By this will all of her property charged with the payment of certain legacies was given to Ward Henderson, who was nominated executor. As a part of the same order-book entry, under the same date, it is shown that appellants appeared and filed objections to the probate of such will on the grounds that said will was unduly executed, that at the time of its execution the testator was a person of unsound mind, and that she was unduly influenced in its execution. The objections show that Eliza Henderson left appellants Anderson Prebster and Everson Prebster, her brothers, and a sister, Emma Tout, as her sole heirs. The objections thus filed were not verified and did not state that the same were not filed for vexation or delay as required by § 3153 Burns 1914, § 2595 R. S. 1881. Upon the filing of these objections further proceedings were continued.

The objectors caused personal notice to be given to the beneficiaries under the will who were residents of Indiana and gave notice by publication to the beneficiaries who were nonresidents of the state. Notice by publication was also given to Emma Tout, who was not a beneficiary under the will, but an heir of the testatrix who did not join in the objections filed. She did not appear or file any pleading in the cause. The proceeding was transferred to the Boone Circuit Court where a trial was had resulting in a judgment establishing the validity of the will and admitting it to probate.

In the assignment of errors on appeal Anderson Prebster and Everson Prebster, contestors below, appear as appellants, and all of the beneficiaries named in the will and the executor nominated therein are named as appellees. Emma Tout was also named as an appellee. Appellees assert that the appeal has not been so perfected as to give this court jurisdiction for the reason that Emma Tout should have been named as an appellant. This is a vacation appeal and it is well settled that, in such appeals, the party appealing must make all his coparties to the judgment coappellants and give them proper notice of such appeal. Lake Shore Sand Co. v. Lake Shore, etc., R. Co. (1908), 171 Ind. 457, 86 N.E. 754; Gregory v. Smith (1894), 139 Ind. 48, 38 N.E. 395.

In this case, however, Emma Tout was not a coparty with appellants to the judgment below. She was not a party to such judgment at all and was in no way bound by it. She filed no objection to the probate of the will and she was not a necessary party under the terms of § 3154 Burns 1914, Acts 1911 p. 325, which requires that the executor and all other persons beneficially interested in the will shall be made defendants. Section 3157 Burns 1914, § 2599 R. S. 1881, provides that the final determination of such cause against the plaintiff shall not debar any other person from contesting such will within said three years. The affirmance or reversal of this judgment cannot affect the rights of Emma Tout and therefore she was not a necessary party on appeal. As all of the parties against whom the judgment was rendered in the trial court are made appellants and all of those beneficially interested in the will are named as appellees, the objection under consideration is without merit.

Notice of the appeal by publication was given to nonresident appellees in which the name of Harley Tout was spelled Harley Trout. The same mistake appears in the spelling of the names of two other appellees. This does not have the effect of invalidating the notice as the names are so similar in sound as to be regarded as idem sonans. Schofield v. Jennings (1879), 68 Ind. 232; City of New Albany v. Stirr (1904), 34 Ind.App. 615, 72 N.E. 275.

In the trial court the minority of two of the beneficiaries under the will was suggested and a guardian ad litem was appointed and filed answers. Appellees assert that such guardian ad litem should have been named as an appellee and served with notice of the appeal. The guardian ad litem was not a party, but was appointed by the court to protect the interest of the infant parties defendant. The judgment was not rendered against him but against the parties represented by him. They were named as appellees on appeal and notice given to them. This was sufficient.

Numerous other objections are urged to the proceedings for perfecting this appeal, all of which have been fully considered. Without extending the opinion to discuss each separately, the court is of the opinion that none of the objections urged is fatal to the appeal, and that the record is sufficient in form to enable it to pass upon the vital questions involved.

Upon the trial of the case before a jury, the proponents, having the burden of the issue, introduced evidence to show that the will was duly executed and, at...