*1 tected, and a litem should have been ad appointed guardian second, here. As to relator the rule that relies mental of an accused at the time of the crime is condition to an is to determine of which foreign inquiry purpose v. the' accused to be on trial. (Glenn capacity placed Ill.2d This rule does not 335; People, 342.) support mental relator’s contention all evidence of his con prior dition was of a inadmissible. have held proof prior adjudication of raises a the con insanity presumption Samman, dition continues. Ill. (People 549, 554; Nierstheimer, ex rel. Wiseman People areWe therefore of the that evidence of the relator’s opinion mental condition was admissible prior proceeding create a rebuttable that the condition existed presumption of the hearing. stated,
For the reasons the order of the circuit court is Randolph County cause remanded with directions to relator a grant trial consistent jury with the views in this expressed opinion. remanded,
Reversed and with directions. (No. 39110. Nupnau al., et vs. Herman H. Appellants,
Arthur Hink,
Exr., al., et Appellees. Opinion filed, Sept. Rehearing denied Nov. 1965. JJ., dissenting. Solfisburg,
Underwood *2 of of Chicago, (John Hudson, Father, Marshall counsel,) appellants. .of Britton, Dorschel Hardin &
Schief Waite S. Hunt Harmon, Chicago, Robert (Robert J. counsel,) appellees. Klingbiel the opinion delivered Mr. Chief
the court: deceased, Minna Rathje, This suit to contest the will of 17, superior was on January 1962, brought a will. certain beneficiaries under prior Cook County, by was filed within The complaint to include failed but the probate, period following whether all heirs as defendant. question parties months, for of the nine ceased upon expiration within that to failure name necessary parties time. had that after nine months expired
The record shows to was admitted defend from the date the will probate Plaintiffs to for lack of jurisdiction. ants moved dismiss to the omitted to amend so as include filed a countermotion and dismissed The court denied motion heirs. plaintiffs’ court, which af the suit. Plaintiffs to appealed Hink, Ill. firmed the order of dismissal. (Nupnau 2d thereafter them leave to 81.) granted appeal to this court. of the Probate Act insofar rele Section as provides, vant, that nine months after “Within the admission to pro a or will bate of domestic court of foreign probate State, of this a county any interested file any may person in which the the circuit court of the will county to contest the will.” was admitted to probate validity Section Rev. Stat. (Ill. 1961, 3, requires chap. par. 90.) or with the “The executor under the will administrator heirs, will annexed and all and devisees of the legatees, testator Rev. shall be made to suit.” Stat. parties (Ill. here was presented chap. par. question Collision, answered in substance decided at a time when the statute prescribed one-year for will A bill been period contests. had filed within the one- heirs, year which made the devisees and legatees It parties defendant. failed to make the executors such until more than one the will year after elapsed was admitted contention that probate. there rejecting bill, was no jurisdiction to entertain the the court pointed out that the executors were although de fendant failure to include them did not mean that no *3 suit was to the contest will. It was brought observed that “While the statute the contest a will authorizing is not chancery a limitation law but is a properly statute jurisdiction, than conferring goes merely con ft ferring and jurisdiction the time within which prescribes the conferred jurisdiction must be If invoked. the jurisdic tion conferred is invoked the bill the by filing within entertained, limited bill must be and the failure to make a a defendant to the bill necessary party within a when year other are necessary made defendants is not a failure to invoke the jurisdiction within a year.” Ill. at (249
A similar was question presented Fleshner v. Cope land, executor, Ill.2d 72, where the who was not named in the or caption introductory paragraph complaint, was to be added sought amendment after by the statutory had An order expired. mo denying tion and dismissing was complaint reversed this by In court. that the omission was not fatal holding and plaintiffs invoked the adequately “A said that trial the nine-month we court within period, stated, we no reason cause of action and see compelling was to to amend.” deny plaintiffs right Winkelhake, 2d 124, Krunfus cer a contest failed as defendants join in will to plaintiffs will, after nine tain under the and beneficiaries contingent the defendants moved months had since probate expired that necessary parties a on the summary judgment ground by The circuit denied a motion had not been court joined. amend, lack of and the suit was dismissed for to plaintiffs that the The jurisdiction. holding to to amend their should be allowed in the omitted necessary parties. bring a result in the case think similar should follow to The kind of is not secure bar. of this object proceeding but a individual defendants judgment against personal will, it is to make to set aside and while simply an this is not interest therein having persons to the of jurisdiction. condition attaching By precedent statute jurisdic- and words of the itself express unqualified is “filed” within tion is when a invoked “complaint” to of section 91, relating requirement period. add distinct does not purport is separate parties, taken nine must be within says to the which steps months. Nisbet, of the Federal court Strachan v. decision rely, 202 F.2d which defendants cir.
(7th 1953) case, the Fleshner where was distinguished jurisdic out that “it turned on issues of Federal we pointed * * It is to dis unnecessary tion not here applicable bar. The cited it in the case at Ohio decisions tinguish again *4 Gluth, Ohio Gravier v. St. namely, 163 defendants — 126 v. First National Bank N.E.2d and Fletcher 232, 332 621—are also Zanesville, Ohio St. N.E.2d 147 167 with a statute since were concerned differ they inapplicable, in the case at bar. The Ohio stat- from that ing language
289 codicil shall “An contest a will or ute that action to requires time, a further sec- within the and be brought” designated commenced, that an action tion Code is of the Ohio provides defendant, served on of the summons as to each the date such him. It is evident decisions construing provisions statute, Illinois, do where the not control requires “file a within the the contestant merely complaint” time. designated court conclude the trial erred dismissing
suit erred in and that court dis- affirming appellate missal. so as to should be to amend permitted include necessary parties. judgment court and the order of the circuit are each and the cause to the circuit remanded Cook accordance with the County proceedings views herein. expressed
Reversed and remanded. Mr. dissenting: Underwood, have my judgment, both majority misinterpreted case law and the legislative mandate set forth preceding in sections decision, of the Probate Act. Today’s 90 91 which extends within which the va- indefinitely determined, of a must lidity will be conflicts with directly the legislatively determined settle- policy favoring speedy ment of decedent’s affairs made sections apparent by 90 Collison, relied 225, heavily upon in the majority was decided before section was opinion, enacted. I believe the case be no longer persuasive, Act, of Wills which that decision was made no predicated, provision concerning parties. Section enumerates to be specifically parties required joined in suits That nature. this distinction should be determinative has been in S trac han previously announced Nisbet, (7th cir.), F.2d which character-
290- “The Act not in and stated Probate ized as point, heirs, etc., made that all be of section 91, requiz'es In a that sec- to the suit to contest will where suit. with, lacked has not the District Court tion been complied the the Time to entertain jurisdiction again complaint. Illinois of Court of has the power passed Supreme It has held the courts will contests. uniformly juris- in the the statute must be exercised diction under granted It me clear and manner therein seems to mode prescribed.” Illinois law settled v. Nisbet as regarded Strachan subse- of as joinder statutorily required prohibiting the the of but period, quent expiration “on is- this as majority disregards holding turning opinion here.” sues of Federal not jurisdiction applicable de find justification today’s majority I not Ill.2d but do cision Fleshner Copeland, 13 There read that case as the result reached here. authority executor, inadvertence, was not named through apparent of the but was as such in the clauses complaint prefatory named defendant in although defectively “adequately, as filed.” Ill.2d [body complaint originally (13 of] there said : “Under the 74) p. (p. facts case, invoked the we conclude plaintiffs properly the trial within the nine-month Act cited. the Probate above prescribed by in was not in the or the executor named caption While he was as defend troductory named paragraph, specifically To ant in the of the complaint.” body (Emphasis supplied.) that-, me, the clear of Fleshner is absent the naming import of the com body of the- executor the motion to amend the of the caption plaint, him nine- to add as a defendant after the and summons I would have been denied. believe elapsed month period intimated that the of neces clearly joinder the court thus was of a within required jurisdictional sary parties nature. Ohio decisions reaching
While the majority distinguish an of an dif- result on “evident” grounds opposite ference, I no of substance between the distinction perceive * * * Ohio that “an be action shall brought” requisite and our that the contestant “file a com- language requiring plaint”.
For the and for reasons those foregoing appearing well-considered court herein opinion (53 I 81), 2d believe failure to join necessary *6 within the demands dismissal required of the trial and complaint. judgments courts be affirmed. should Solfisburg
Mr. in this dissent. joins (No. 39136. Freides, Appellant,
Simon vs. Sani-Mode Manufactur-
ing Co. et Appellees. al., Opinion Sept. Rehearing Nov. denied filed 1965.