186 Ind. 38 | Ind. | 1917
On September 19, 1914, Jennie Voyles and Stella Short filed in the office of the clerk of the Washington Circuit Court what purported to be the last will and testament of Amanda J. Hinds and asked that the same be admitted to probate. This was at a time when the circuit court was in vacation. On the same date appellee filed written objections (to the'probate of the will, which objections were to the effect that said pretended will was unduly executed, was obtained by undue influence, and that said Amanda J. Hinds was, at the time of the attempted execution of the will, of unsound mind. The will disclosed a large number of beneficiaries, and named one Logan Clark as executor.
It appears from the record that, at the October term of the Washington Circuit Court, this proceeding was brought into the circuit court by being placed on the docket of the court and entitled “Jennie Voyles, Stella Short, et al. v. Probate of Will, No. 7016 Estate of Amanda J. Hinds, Dec’d.” On November 14, 1914, under the foreging title we find the entry: “Said cause is set /for trial January, 25, 1915”; and again under the same title we find the entry: “Set for trial March 22, 1915.” No formal complaint was filed to resist the probate of the will. No person or persons were made defendants to any petition objecting to the probate of the will. No notices of any kind were served upon any of the parties named in the will as beneficiaries, nor upon the party named as executor therein.
On March 22, 1915, the case was called for trial and a jury was summoned to hear the cause. It was then suggested to the court that five of the parties named as beneficiaries under the will were minors and nonresidents of the state, whereupon the court appointed one James G. Berkey, one of the appellants herein, as guardian ad litem for said minors. This guardian ad
Appellants contend that the court had no power to hear and determine the validity of the will, nor to enter judgment denying probate, without a formal complaint making all parties interested in the will, including the executor named therein, parties to the action with proper notices thereof given at least fourteen days before the day of trial and, as to all nonresidents, notice thereof by publication for three weeks,- thirty days before the day of trial.
Appellee contends that no formal complaint is necessary, and that the objections filed in the clerk’s office to the probate of the will is all the complaint required; and that no notice to any of the beneficiaries is necessary, but that all parties are bound to take notice that such
In Faylor v. Fehler (1913), 181 Ind. 441, 451, 104 N. E. 22, this court after citing several opinions of this court said: “The construction deducible from these cases seems to be, (1) that the preliminary objections which will arrest probate until the next term of court, must at or before that time be followed by a formal complaint in resistance of probate; (2) that such formal complaint must name as defendants the executor, and all persons beneficially interested, who do not join as plaintiffs or contestants, and that citation must issue for the defendants unless they voluntarily appear, and this appears to us to be the orderly and correct practice.”
In Fillinger v. Conley, 163 Ind. 584, 72 N. E. 597, this court, on page 587, said: “The proceeding before the clerk is necessarily ex parte. On the other hand, it is clear that the proceeding before the court was intended to be of an adversary character, and that the party who unsuccessfully resisted the probate should be estopped by the judgment from contesting the will. Duckworth v. Hibbs (1871), 38 Ind. 78. To this end
For the reasons herein assigned, the judgment must be reversed, which is accordingly ordered with instructions to the court below to grant a new trial and vacate the judgment entered.
Note. — Reported in 114 N. E. 865. Wills: probate of, persons entitled to notice, Ann. Cas. 1914 B 427; general principles relating to probate, 130 Am. St. 187. See under (2) 31 Cyc 96; (4) 22 Cyc 653.