186 Ind. 21 | Ind. | 1916
Lead Opinion
The record in this case shows that on Feb
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.
sary 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.
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.
On account of the errors pointed out, the judgment is reversed, with directions to the trial court to grant appellants’ motion for a new.trial, and to permit the filing of appellants’ amended objections.
Rehearing
On petition for rehearing appellees assert that this court erred in its original opinion in holding that the name “Trout,” as appearing in the notice of appeal given by publication, is idem sonans with the name “Tout,” which was the real name of three of the appellees. It is claimed that the mistake in the spelling of the names of the appellees is of such a nature as to render the notice by publication of no effect; and that as no notice of the appeal was given as to the appellees whose names were thus mispelled, this. court has no jurisdiction of the appeal; and that the appeal should have been dismissed for that reason.
Note. — Reported in 113 N. E. 241, 114 N. E. 691. Application of doctrine of idem sonans, 100 Am. St. 330; 29 Cyc 272.