5. WILLS (§ 360*) — PROBATE - OBJECTIONS VERIFICATION.

The failure to verify objections to the probate of a will will be regarded as waived when the question is not raised in the trial court. [Ed. Note.-For other cases, see Wills, Cent. Dig. 825; Dec. Dig. § 360.*]

6. WILLS (§ 277*)—ProbaTE-VERIFICATION. Where objections to the probate of a will are not verified, they may be stricken on motion. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 632-635; Dec. Dig. § 277.*]

7. WILLS ( 310*)-PROBATE-ADMISSION OF WILL TO PROBATE.

An heir filed objections to the probate of a will, which he followed by a formal complaint in resistance to probate, but did not make a legatee under the will a party thereto. The legatee filed a petition for the probate of the will, and on motion, the heir's objections to probate on such petition were stricken. Held, that, the objections having been stricken, the case must be treated as if none had ever been filed, and hence the legatee, by filing a petition for probate, in effect made himself a party to the original action in resistance of probate, and consequently the will could not be admitted to probate as an incident to the striking out of the objections.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 735-737; Dec. Dig. § 310.*]

8. WILLS ( 360*) - PROBATE-MOTION FOR NEW TRIAL-NECESSITY.

Where a legatee's application for the probate of a will was sustained, an heir who then had pending an action in resistance to the probate need not move for a new trial as in ordinary actions, but may directly move to set aside the order of admission to probate as improvidently granted.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 825; Dec. Dig. § 360.*]

self included, her sole heirs at law, naming them; that on July 10, 1902, in vacation, one of said heirs filed in the office of the clerk of the Wells circuit court his written objections to the probate of the last will of said Catherine Faylor; that afterward on the same day one David Studebaker (named in the will as executor) presented the will for probate to said clerk, and owing to such objections, probate was denied, and the cause

was continued until the next or September term of said court; that on September 4, 1902, the objector appellant, and the other alleged heirs, filed in the Wells circuit court a complaint verified by one of them, in resistance of probate of said will, on the ground that the testator was of unsound mind at the time of its pretended execution, and that it was unduly executed, being cause 7,720 in that court, and that such action is still pending in that court, and that appellant did not know until his attorneys were called to the courtroom February 19, 1913, that Roy Fehler was mentioned in said pretended will as a beneficiary, and asked leave to file his objections and complaint against probate. This petition was filed February 19, 1913, on which day, but previously, appellee Roy Fehler, a legatee and devisee under the will, filed in the Wells circuit court a motion alleging that the will of the decedent was offered for probate in that court, July 10, 1902, and moved the court in his own behalf that the will be admitted to probate. Appellant, over appellee's objections,

Appeal from Circuit Court, Wells County; had leave generally to file his objections, and Myers, Judge.

thereupon filed written objections and complaint, in substance, that on July 6, 1902, Catherine Faylor died testate in Wells coun

Application by Roy Fehler and others for the probate of a will, to which Thomas Faylor filed objections. From a judgment strik-ty, the owner of real and personal property ing the objections and admitting the will to probate, the objector appeals. Reversed and remanded.

Mock & Mock, of Bluffton, for appellant. Leonard, Rose & Zollars, of Fort Wayne, for

appellees.

of the value of $20,000, leaving as her only heirs at law the objector, appellant, and certain other designated persons; that the pretended will and testament of said Catherine Faylor, deceased, dated January 29, 1900, has been presented to the clerk of this court for probate. The plaintiff objects to the proMYERS, J. Appellee Roy Fehler, a lega- bate of said will on the following grounds: tee and devisee under the will of Catherine That, First, said Catherine Faylor at the Faylor, deceased, filed an application for the time of the attempted execution of said preprobate of the will of the decedent, to the tended will, was of unsound mind; second, probate of which appellant, having obtained that said pretended will was not duly exeleave over appellee's objections, filed objec- cuted. That on the 4th day of September, tions, which on motion were stricken out, ex- 1902, there was filed in this court a comception reserved, and the evidence heard, plaint against one David D. Studebaker, to and the will admitted to probate. The other resist probating said pretended will, in which appellees are the executor and legatees and all of said above-named heirs were plaintiffs, devisees under the will, and personal or legal and said David D. Studebaker was defend. representatives of the legatees and devisees, ant, and setting forth the same facts relative and those who but for the will would be to said will as specified in his petition. That heirs, of which appellant was one. In ap- said cause has never been finally settled, bur pellant's application for leave to file objec- has been continued by agreement, pending tions to the probate of the will, in addition litigation between said parties, which litigato the facts set out in the objections proper, tion was known of by said Roy Fehler. That he alleges that on July 8, 1902, Catherine this complaint is not filed for delay or vexaFaylor died, leaving numerous persons, him- tion, but that in three different cases tried For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

by different courts, the evidence has been | thereupon refused to probate said will, and that said Catherine Faylor was of unsound on the 1st day of the September term, 1902, mind at the time of the execution of said of the Wells circuit court, a complaint was will. George Mock, for and on behalf of the filed by said Peter Faylor, et al., including plaintiff herein, swears that he is one of the this plaintiff, and petitioner, and summons attorneys for said Thomas Faylor; that it issued thereon, and a full appearance entered is impossible to get an affidavit to said plain- | against said David Studebaker, and for him, tiff in time to comply with the order thereof. and file the same in the time given, and that he makes this affidavit for and on his behalf, and that the subject-matters set forth herein are true in substance and in fact, as he verily believes; that this morning was the first that the attorneys or said Thomas Faylor knew that said Roy Fehler had any interest set over to him by the terms of said pretended will. This instrument is sworn to by George Mock, Esq. On motion of appellee Roy Fehler, these objections were stricken out, on the grounds: First, that they were not filed within the time allowed by law; and second, that they were filed by one George Mock, and not by Thomas Faylor, to which ruling an exception was reserved. The record shows leave generally to appellant, Thomas Faylor, to file objections to the probate of the will, and it does not show that any time was asked or refused in which to properly prepare and file such objections, but, immediately following the granting of the leave, the objections were filed as herein shown, and on their being stricken out no further time was asked or refused, and the matter was at once submitted to the court for hearing, on motion of Roy Fehler, a jury being waived, and the evidence heard, and the will ordered probated. on the hearing of the motion to admit to probate is brought into the record by a bill of exceptions, consisting of the evidence of one of the witnesses to the will that it was

The evidence taken

in said cause. That said motion has been pending ever since in the said Wells circuit court, and said objections and complaint still pending, and never withdrawn by any person, and that said cause was set down for trial at this term of court for trial, at the regular setting of cases on said trial calendar, and that the continuance of said cause has been by agreement from term to term since the filing of the same. That said Roy Fehler never asked to be made a party to said cause, never had any appearance noted therein, and was never represented by any person in any of said litigation. That on the 19th day of February, 1913, and before said will was probated, said Thomas Faylor petitioned to file objections to the probate thereof, which was granted, and he did file his complaint and objections to the probate thereof, to which said Roy Fehler filed a motion to strike out said complaint and objection, which motion was sustained by the court, and exception to such ruling and decision was taken by Thomas Faylor. Second. That at the time of the execution of said pretended will, and for a number of years prior thereto, said Catherine Faylor was a person of unsound mind, as alleged in the objections of Peter Faylor and filing of the complaint by the heirs of Catherine Faylor. Third. That in the case of Thomas Faylor et al., being the heirs of said Catherine Faylor, deceased, against David D. Studebaker, which was tried four different times, the great weight duly signed by the testatrix and the sub- of the evidence, and the findings of the courts scribing witnesses, and that she was more Faylor was of unsound mind, and that said trying said causes, was that said Catherine than 21 years of age and of sound mind at decision was sustained by the Appellate the time of its execution, and the entry Courts of this state. Fourth. That at the July 10, 1902, in vacation, showing the pres- time said Roy Fehler filed his petition in entation of the will for probate by David D. this court to have said will probated, he Studebaker (executor named in the will), and knew, or by the examination of the records that, objections to probate having been filed, of this court could have known, that objecthe matter is continued until the next term tions had been filed against the probating of of court, and this was all the evidence given said will, and that the trial of said objecin the cause. tions had not been had, or such questions as February 21, 1913, appellant filed his writ- were raised therein had not been determinten motion to set aside the order of admis-ed and adjudicated. Fifth. That the ruling, sion to probate on the grounds: First. That on the 8th day of July, 1902, Catherine Faylor died in Wells county, Ind., and that on the 10th day of July, 1902, Peter Faylor, for and on behalf of the heirs of said decedent, filed in the office of the clerk of Wells county his sworn objections to the probating of any will in said estate as shown by Order Book Probate Record 15, p. 171, of this court. That on the 10th day of July, 1902, and after said objections were so filed, David D. Studebaker presented said will for probate

decision, and judgment of the court in probating said will of Catherine Faylor while said objections remained unadjudicated was wrong, and contrary to the law. Notice of this motion was ordered and given by appellee Roy Fehler for February 24th and on that date the motion was overruled, and appellee excepted, and this appeal followed.

[1] It should be noted that both appellant, Thomas Faylor, and appellee Roy Fehler are kinsmen of the testatrix, the difference in spelling names doubtless arising from the

by this record that the will was offered for | ter in the Estate of Catherine Faylor, Deprobate July 19, 1902, and that appellant's ceased." objections were not filed until February 19, 1913. It also appears that to the former proceedings to resist probate, still pending when appellant's objections were filed, appellee Roy Fehler, a legatee and devisee under the will, did not join as a plaintiff, was not made a defendant, and was never served with process in the cause. It is, however, contended by appellant that the court erred in striking out his objections to probate, the ground of his contention being that a motion to strike out cannot perform the office of a demurrer, for the reason that it takes away the right of amendment, and in this case took away his right to introduce evidence, or object to the evidence on the hearing. Ordinarily the rule is as appellant insists, but that cannot be true in a case where, so far as the objections are concerned, they were sufficient in form and substance, if on their face they show that they are filed too late, or were not properly verified. They needed no amend ment to present all that appellant could present on the question. There was no insufficiency of facts to authorize the objections if they were in time, or properly verified.

[3] Three questions therefore arise: First. In case of objection to probate under section 3153, Burns 1908, and the matter being deferred to the next term, must a complaint be filed making the executor and the persons beneficially interested parties under section 3154? Second. Was the effect of appellee Roy Fehler filing a motion to probate and to strike out the objections filed by appellant an appearance to, and his becoming a party to the original proceeding? Third. Does a failure in a complaint to resist probate, to make party one beneficially interested, until the three years from the offer to probate has run bar him from having probate? It is urged that the court took judicial notice of its own records, and knew of the pending of the original complaint. If it did so, it also took notice that Roy Fehler was not a formal party. If it be the law that no no one need be named as a party in the primary objections before probate, then it was not necessary to name him, or any one else, as a beneficiary. But what is to become of the provisions of section 3154 as to who shall be defendants? True, before probate, a [2] It is next urged that it was error to party may not know who are beneficiaries, strike out the objections, where a cause of or who the executor under a will, whereas action has been begun before probate, citing after probate the will itself will disclose the Ahearn v. Burk, 99 N. E. 1004, to the point beneficiaries, and the necessary parties, but that notice is not required of the filing of there is as much reason that one be made a such objections. It is urged that he should party and have his day in court in one case have had a reasonable time to resist the as in the other. If the beneficiaries were not probate under section 3153. It is answered known, the objections may still be filed, withthat he asked no time, but filed his objec- out making formal parties, which will arrest tions at once. It is next urged that where probate until further information can be oba beneficiary under a will moves a court to tained, and the process of the court is availprobate it, and application is made by an able to obtain it, upon which a complaint heir to file objections, and they are filed be- can be based, making all parties in interest fore probate, and a beneficiary files a mo- defendants to the proceeding, and that is the tion to strike out the objections, it is an ap- effect of the decision in Ahearn v. Burk, The material inquiry, therefore, is, pearance to such complaint, and to the pend- supra. ing proceedings, originally filed within time. Did the failure to make Roy Fehler a party to the proceeding to resist probate, and serve The point made is that, no notice being required of the original objections, all bene- him with notice, remove as to him the bar ficiaries were by force of the statute parties, of the three-year statute, or can the proand hence no notice was necessary as to Royceeding be split up so that an action to resist Fehler, and that by appearing and filing probate, in which only part of those benhis motion to strike out the objection he eficially interested are made parties, prebecame a party voluntarily to the then pend- sent the bar of the statute as to them? Secing proceedings of the other heirs. It is to tion 3154 is mandatory that all persons be observed that the motion by Roy Fehler beneficially interested shall be made parties to admit the will to probate was entitled "In defendant. The proceedings to resist or set re Will of Catherine Fehler, Deceased." In aside probate of a will has been held so far his motion he recites that the will was of- a unit and indivisible that an admission of fered for probate in the Wells circuit court a beneficiary against his interest cannot be July 10, 1902, as shown by Order Book Pro- received, because of its effect upon his coIn beneficiaries. Roller v. King (1897) 150 Ind. baté Record 15, p. 172, of that court. the petition by appellee for leave to file ob- 159, 166, 49 N. E. 948, and cases cited. In the case of Floyd v. Floyd (1883) 90 Ind. jections it is entitled "In the Matter of the Estate of Catherine Faylor, Deceased," and 130, it was held, where in an action to conin neither motion by appellant or appellee test a will part of the beneficiaries were not Roy Fehler was a number given in the court. made parties within three years from the The entry in the original objections filed time the will was offered for probate, that July 10, 1902, is under the caption, "Mat- the three-year condition did not apply, con

trary to the general rule that an action is deemed commenced from the time the amendment is made. The opinion is grounded on an Ohio case and the statute (section 3154) requiring all persons interested beneficially to be made parties to such proceeding as an indivisible action, and in such case the proceeding is deemed commenced from the time the original contest was instituted, for the reason that no judgment can be rendered until all persons beneficially interested are be fore the court; the proceeding being one in

rem.

In McGeath v. Starr (1901) 157 Ind. 320, 61 N. E. 664, it was held that section 3156 must be complied with, whether the proceeding is to resist probate or contest the will, and that a citation must issue for all the beneficially interested persons, that the filing of a complaint is not notice, and that an action is only commenced in proceedings of this character when a complaint is filed and process (citation) issued, and for that reason the executor and other persons who had not been cited, or had not appeared, were entitled to have the will probated, notwithstanding the filing of the complaint, and that proving the will could not be arrested in that manner. In Ahearn v. Burk, supra, it was held that the objections permissible under section 3153 will arrest probate until the next term of the court. The construction deducible from these cases seems to be: First, 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; second, 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.

[4-7] The remaining question is whether verification by appellant's attorney was jurisdictional, or whether any additional formal objection was necessary. As to the question whether verification by appellant was necessary, it has been held that failure to verify the complaint does not oust the court of jurisdiction. Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494; Sutherland v. Hankins, 56 Ind. 343.

And, unless the question is properly raised in the court below, it is to be regarded as waived. Here it was raised, and the court was doubtless correct in its ruling in striking out the objection, but that did not authorize probate of the will, and, in view of our conclusions, was immaterial. This is a special proceeding, but in general and special proceedings the powers of attorneys to act for their clients are the subject of statutory regulation. Burns 1908, § 1003. The statute is specific here that the instrument of resistance shall be "verified by his affidavit," and, we think, upon reason should be followed. However, back of it all in this proceeding lies the fact that there was, at the time, pending in the same court, and it was disclosed, an action in resistance of the probate of the will, in which appellant was a plaintiff. The reason for the rule in Floyd v. Floyd further appears when we contemplate the situation here, with the will probated in this proceeding as an entirety, while if the former proceeding is successful, it will not be probated in whole or in part, presenting a condition which is not to be recognized. It could not be legally probated or defeated except as an entirety, unless some element of estoppel could intervene, as to which we express no opinion. It was, and could be but one case, and not two or more cases. It was in respect to the same will, and in fact and in law in the same proceeding. There was at least but a defect of parties in the primaThe distinction between the Floyd and Mc-ry cause, and that defect may be waived. Geath Cases lies in the fact that in the for- Thomas v. Wood, 61 Ind. 132. mer an action was commenced within the time, while in the McGeath Case an action had not been commenced by any person, against any one. The cases are not in conflict. Here the proceeding in resistance of probate was pending when appellee filed his motion for probate, pursuant to objections originally offered and followed by a formal complaint in resistance. The offer for probate, followed by a complaint in resistance, involved the entire subject-matter of the res, and the rights of all persons in interest, though they could not be concluded until they were before the court, and the court could not act until they were before the court. The action could not be split up, so that when resistance to probate was formally made, it necessarily involved the interest of all persons affected, and as the will must stand or fall as an entirety, the reason of the rule and the rule itself in Floyd v. Floyd is ad

By his application for probate, appellee Roy Fehler virtually in effect became a proponent of the will, as against pending proceeding in resistance of probate. The effect was that there was a formal action in resistance of probate then pending which affected all persons in interest; the court's attention was specifically directed to it, and the order of admission to probate was improvidently made. It doubtless grew out of a misapprehension of the rule in the McGeath Case. After appellant's objections were stricken out, the proceeding was ex parte, unless it could be said that by filing his application for probate appellee Roy Fehler became a party to the original proceeding, but it is manifest that it was on the ground that he was not a party that the court proceeded, and that the proceeding was treated as purely ex parte. It, therefore, stood as if appellant had not appeared at all beforehand, but,

made a showing of his interest and asked | 4. DRAINS (§ 40*) — RESTRAINING CONSTRUCthat it be set aside as improvidently made, which he did. and in that motion fully disclosed the pendency of the main adversary proceeding, and all the facts disclosed in his petition for leave to file objections, and in the objections themselves.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

*Rehearing denied.