Weinberg v. Weinberg

• Decision Date: 14 March 1946
• Docket Number: 15815.
• Citation: 37 S.E.2d 507,208 S.C. 157
• Parties: WEINBERG v. WEINBERG.
• Court: South Carolina Supreme Court

37 S.E.2d 507

208 S.C. 157

WEINBERG v. WEINBERG.

No. 15815.

Supreme Court of South Carolina

March 14, 1946

John G. Dinkins, of Manning, for appellant.

DuRant DuRant & Plowden, of Manning, for respondent.

J. HENRY JOHNSON, Acting Associate Justice.

From the year 1921 until his death on October 6, 1944, Julien Weinberg, the elder, and J. A. Weinberg, his brother appellant, were tenants in common, in equal portions, of a parcel of real estate in the town of Manning. By his last will and testament, dated December 22, 1928, Julien Weinberg the elder, having no children at that time, devised his undivided one-half interest in such lot unto his wife, Irma M. Weinberg, the respondent. Some three or four years later a son, Julien Weinberg, the younger, a youth of the age of thirteen years when this action was instituted, was born unto the testator and his wife, Irma. So far as the record discloses, no other testamentary disposition of his property by codicil or new will, was ever attempted by the elder Weinberg after the birth of his child and, shortly following the death of the former, the aforementioned testament was admitted to probate in common form in Clarendon county on October 13, 1944. No effort to have the same proved in due form of law has been made, and it is agreed by the litigants that the son, Julien Weinberg, the younger, born, as indicated, after the making of the will but approximately twelve years before the death of the testator, and who takes nothing under his father's will, has until March, 1954, under the statutory law of this jurisdiction, within which he might require the proving of the same in due form of law, should he so desire.

In August, 1945, within one year of testator's death, his widow, sole beneficiary under the will, commenced this action for partition, the complaint alleging that she and appellant are the owners of the real property hereinbefore referred to, that it is not susceptible of partition in kind, and that they own no other land in this State in common. The appellant here, defendant below, answering, alleged that he 'and the estate of Julien Weinberg, the elder, are the owners of said premises as tenants in common in equal portions; that Julien Weinberg, the elder, left as his heirs at law the plaintiff, Irma M. Weinberg, who is his widow, and a son, Julien Weinberg, the younger, who is an infant of the age of thirteen years; and said infant resides with his mother, the plaintiff herein'; and, in substance, that the 'purported' will of Julien Weinberg, the elder, was admitted to probate in common form in October, 1944, under which plaintiff was devised the entire undivided interest of the testator in the real estate in question; that the alleged will was made in December, 1928; that the younger Weinberg, son of the testator, has until March, 1954, in which to contest the will of his father; and, if such contest be successful, the child would become entitled to a one-third interest in the premises constituting the subject of this action; that plaintiff, by seeking partition and sale of 'her alleged and purported one-half interest' therein without making her and testator's child a party to the action, is making possible a multiplicity of suits, and creating a cloud upon the title she seeks to have made under decree of the court, thereby producing a 'Chilling' of the bidding at the sale, and causing the passing of a questionable title to any purchaser other than herself; that he is desirous of a partition at the earliest possible date, but only under such proceedings and in such manner as will result in a complete determination and settlement of all questions affecting the title to the lot in question; and that the child, Julien Weinberg, the younger, is a proper, necessary and indispensable party to such determination and settlement.

Contemporaneously with the service of his answer, the appellant moved before the resident (and then presiding) judge of the circuit for an order making the infant son a party-defendant to the action. Following argument upon the motion before Judge Stoll, the same was refused upon the ground that the question raised thereby was far-fetched, speculative, abstract and moot.

The exceptions challenge the correctness of the ruling below upon the grounds: (1) That the child is a proper and necessary party to the litigation, and that appellant is entitled, under Secs. 404, 8826 and 8932 of the Code of 1942, to have him made a party thereto; (2) that Judge Stoll construed Sec. 404 strictly, whereas appellant was entitled, under the circumstances, to a liberal construction thereof; and (3) that certain affidavits, asserting the sound mental capacity of testator at all times, should not have been received in evidence and considered by the trial judge.

Perhaps it should be observed that two of the affidavits were made by two of the witnesses to the will, neither of whom, however, had any independent recollection of having officiated in that respect. The third was by a reputable attorney of the town of Manning, who had known testator for thirty years, and who saw him almost daily.

Section 404 of the Code provides: 'Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein, and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such actions.'

The applicable portion of Sec. 8826 reads: 'No severance or partition shall be prejudicial or hurtful to any person or persons, their heirs or successors, other than such as are parties unto the said partition, their executors and assigns.' So much of Sec. 8932 as is pertinent is as follows: 'Probate in common form shall be good, unless some person or persons interested to invalidate the said paper as a will shall give notice to the judge of probate, within one year next after such probate (or, if any party interested therein be subject to the disability of infancy, then, within one year next after such disability removed), that he, she or they do require it to be proved in due form of law.'

Appellant might also have relied upon Sec. 409 of the Code, which is mandatory as to the bringing in of other parties 'when a complete determination of the controversy cannot be had without the presence of other parties,' whereas Sec. 404, by its terms, is permissive. With reference to what is now Sec. 404, this court has held that: 'This section, instead of being mandatory, is permissive. Persons interested in the controversy, or necessary to a complete determination of the action may be made defendant.' Marion County Lbr. Corp. v. Whipple et al., 118 S.C. 90, 110 S.E. 70, citing and quoting from Murray Drug Co. v. Harris, 77 S.C. 410, 57 S.E. 1109.

'The following language, quoted in [Mechanics'] Bank v. Seton, 1 Pet. 299, 305 , is appropriate here: 'The general rule as to parties is that when a bill for relief is brought all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete and final decree between all the parties interested. But this is a rule established for the convenient administration of justice, and is subject to many exceptions, and is more or less a matter of discretion in the court.' The power being discretionary, the only logical person in whom it could be placed is the circuit judge. He having dismissed the motion, therefore, this Court, in the absence of abuse of discretion, will not interfere.' Marion County Lbr. Corp. v. Whipple et al., supra, quoting from Murray Drug Co. v. Harris, supra. Of course, the unhappily framed expression, 'abuse of discretion' means a ruling made upon grounds and for reasons clearly untenable. Norris v. Clinkscales, 47 S.C. 488, 25 S.E. 797.

And the provision in Sec. 8932, authorizing one subject to the disability of infancy (but interested to invalidate the will) to require proof thereof in due form of law at any time within one year next after the removal of such disability, is also permissive and intended for the protection of the rights of the infant. It is permissive in that there is nothing to prevent an infant from requiring proof of the paper in due form during his minority. And certain it is that any person interested to invalidate a will may, by notice to the judge of probate, require all infants who would have been entitled to share in the distribution of a testator's estate, if he had died intestate, to be brought into court in a proceeding for proof of the will in due form of law.

The court can readily understand why the appellant would prefer to have the son of the testator, born after the making of the will and receiving nothing thereunder, made a party to the pending litigation, but we have not been convinced that his appearance as a party would have any effect on the title derived from the court's sale for partition. There is nothing in the record before us to indicate that he 'has or claims an interest in the controversy adverse to the plaintiff'; that he is 'a necessary party to a complete determination or settlement of the questions involved therein'; that he is either landlord or tenant of real estate, the possession of which is sought to be recovered; or that he is a 'person claiming title or a right of...