Turnham v. Turnham

42 Ky. 581 | Ky. Ct. App. | 1843

Chief Justice Ewing

delivered the opinion, of the Court.

Joel Turnham and his infant daughter filed their bill in Chancery, impeaching a document which had been admitted to record in the County Court as the will of John Turnham, deceased, and the judgment of the County Court affirmed in this Court, upon the charge of incompetency in the testator to make a will, and influence exercised over him by his wife. The heirs and devisees of the decedent were made defendants. In the progress of the case some of the defendants, were, on their petition, permitted by the Court to change sides and become co-complainants with the original complainants. An issue was made up, as required by the statute, and a verdict found against the will, and a decree accordingly rendered, setting it aside, after a motion for a new trial had been overruled — and the case has been brought to this Court for revision.

in a contest, in-lion1 of 'the'due it was not improper in the Court to permitsome of the Eeeifmlde decimnge sides and become com-the'odginalcon¿ piamants. . Thro’proceeding ry toUset°asideeá °etaU edrS°dfouUiebe brought before the Court.—

We can perceive no impropriety in the action of the Circuit Court in allowing some of the defendants to change sides in the controversy. They had. been made defendants without their consent, and there can be no ob-Section to their being allowed to change their attitude in J the cause, so as to be placed on the side or their interest.

But it is objected that the proper parties were not before the Court. It appears that John Turnham, Jr. the son 0f the decedent, had married and died without issue, after the death of his father, and that his widow had mar-r¡ec[ a Doctor Kotch, both of whom were living. The administrator or other representative of John Turnham, Jr. is not made a party, and. though his widow and her second husband are made defendants, it does not appear that process has been served on them, or that they have appeared to the suit. Mildred Turnham is also made defendant, as one of the heirs of John Turnham, Sr. deceased, and process has not been served on her, nor has she appeared to the suit.

Though this is in the nature of a proceeding in rem, and the decree is certainly a decree in rem,, the action of the Court being directly on the will and not on the parties, wBIch is, in the general, binding upon all persons, whether -^ey are Par^es or n°t> yet as interest of individuals, though incidentally, may be seriously affected by the decree> ft js certainly the safer practice, and that which is best calculated to afford protection to the rights of all concerned, and most consistent with the accustomed modes of proceeding in Chancery, (which is the tribunal provided by the statute for this proceeding,) to bring all persons interested before the Court; and for the ornis sion to do so, as to any persons whose interest is prejudiced by the decree, it is a good ground for reversal in this Court, whose province and duty it is to correct the errors in practice as well as principle, in the inferior tribunals; and so this Court determined in the case of Jos. Rogers’ will, (1 Ben. Monroe, 390.)

Crittenden for plaintiffs: Graves and Wilson fox defendants. —But this Court will not reverse, attheinstanee of one who is looser by a decree, that another may be made a party, who is evidently benefited by the decree, but who is not asking a reversal.

But it appears that the decree in this case, setting aside the will, is obviously for the benefit of all those who were not brought before the Court; they cannot, therefore, be said to be prejudiced by the decree : but Elsey, the widow, to whom all the property was left during her life, with the power to use and dispose of it at her discretion, was prejudiced, and she and her son, Josephus, were before the Court and made defence. Shall they be permit, ted to reverse the decree upon the ground that oth&rs were not before the Court, who have not been prejudiced, and who, had they been before the Court, would most likely, judging from their interest, have united their efforts with others in resisting the establishment of the will? We cannot feel at liberty, in a proceeding like this, to carry the rule of practice so far; to indulge in it would be to indulge in a technical practice, in no’wise calculated to secure the ends of justice. Consistent' with this view was the intimation of this Court in the case of Rogers’ will, supra.

Perceiving no objection to the verdict of the jury, rendered upon the evidence before them, though the will was sustained by this Court, upon a different state of preparation, the decree of the Circuit Court must be affirmed with costs.