144 Mo. 198 | Mo. | 1898
This is a proceeding under the statute to contest the validity of the will of Elizabeth J. Wells late of Pike- county, which had been formally proved in the probate court. The will was executed on the twenty-ninth day of October, 1894, and the testatrix died in May following, at the age of fifty-six years. She was never married and died without issue, leaving neither father nor mother. The plaintiff William, and defendants James, Charles, Robert and George Wells, are her only surviving brothers, and Berkley Wells is the only child of her deceased brother John Wells. The will in contest is sought to be
, By the terms of the will testatrix gave Benj amin G. Patton, trustee, and his successor, two hundred and forty acres of land, situate in Pike county, worth $10 or $12 per acre, in trust for her brother Charles and his wife Mary, during their lives, and at their deaths, to their children absolutely, and the residue of her estate, including lands, money and personal property, to the children of her brothers William, James, Charles, Robert, George and John Wells, to be divided equally among them; the children of each of her surviving brothers to receive one share jointly, and her nephew Florence B. (called Berkley) Wells one full share; the executor being authorized to sell and convert the remaining portion of the estate into cash and divide the proceeds arising therefrom in the manner above stated. Benjamin G. Patton was also named as executor under the will.
The correctness of the judgment of the circuit court is challenged, first, on the grounds that at the time the judgment was rendered, defendant, Berkley Wells, was a minor and no guardian ad litem was
The judgment is also further assailed for the reason that it appears upon the face of the record that only a part of the beneficiaries under the will were made parties to the proceedings and as a consequence only a part of those were included in and bound by the judgment as entered. Plaintiff seeks now to avoid the force of this objection by saying that the defendants did not raise the question as to defect of parties by an answer or demurrer filed with the circuit court and for that reason, that objection has been waived and can not be made now for the first time on appeal. This is not strictly an action alone between the plaintiff and the defendants sued. It is in the nature of an action to probate the will in solemn form before the circuit court, when all parties in interest are required to be brought into court before its right to try the statutory issue is exercised, and if at any stage of the proceedings this want of necessary parties is made to appear, it may be taken advantage of.
It will not avail the plaintiff who has purposely failed to join the proper and necessary parties to the complete determination of this character of an action, to say that the defendants, whom he has chosen to name, did not raise the question as to defect of parties before the circuit court and for that reason that question is forever barred.