133 N.E.2d 189 | Ohio Ct. App. | 1954
This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County.
The trial court overruled a motion by plaintiff to make a party defendant and sustained the motion of defendant to dismiss a petition to contest a will.
No bill of exceptions is presented here, nor was any filed in the trial court.
This court is confined to the allegations of the petition, sworn to only on belief, to ascertain the facts presented to the trial court, upon such motions. Passing the question whether such source is sufficient to present the necessary facts required to consider this appeal, it appears from such allegations that Stella L. Staley, mentioned in the petition, was the guardian of her children, who were related to the testatrix, and was a legatee under the will of such testatrix, but was related to such testatrix only by marriage to Luke A. Staley, a nephew of the testatrix, who predeceased the testatrix. Such legatee was served in her official capacity only, as guardian of her children. As such legatee she was a necessary party to the will contest. Section
This court has held that such section has no application to actions other than those predicated upon the sections of the Code mentioned in Section
Judicial subordination requires this court to conform its conclusions to those decisions of the Supreme Court.
If, therefore, Stella L. Staley is "united in interest" with other colegatees to whom summons has been issued (Section
It appears, therefore, that there is a defect of parties required under Section
The judgment of the Court of Common Pleas is, therefore, affirmed.
Judgment affirmed.
MATTHEWS, P. J., and HILDEBRANT, J., concur. *245