made by such person in good faith, a withdrawal of such opposition is. a valid consideration for a promise on the part of one interested in sustaining the will, to let him share in the estate, without the necessity of showing that the contestant had reasonable cause to believe that he had a fair chance of succeeding in the contest. It has been held, however, that reasonable grounds for controversy must exist, that a promise by a stranger is not a sufficient consideration to support a contract, and that if there is no doubt of the validity of the will a promise to forbear contesting it is not a valuable consideration. Equity has jurisdiction specifically to enforce an agreement in compromise of threatened proceedings to contest the validity of the will." When the controversy is settled in this way, the rights of the parties are determined not by the will as written, but as changed by the terms of the compromise. The fact that one has agreed to refrain from contesting a will does not estop him from seeking the legal interpretation of the instrument. Nor is he estopped from claiming an interest in the intestate property.8 No contestant of a will can compromise anything beyond his personal interest in the contest, and is entitled to no more than his distributive share in a sum received by way of general compromise." Parties Defendant; Notice 398. Necessary Parties Generally.-As a general rule in a proceeding which involves the validity of a will or the disposition of the estate devised or bequeathed, all the parties named in the will as legatees or devisees are necessary parties.10 In proceedings to contest a will it is important to join all parties in interest,11 and if they are not joined they may ignore and treat as a nullity a decree in equity setting aside the will.12 But the refusal of the trial court to delay the proceedings 25 N. E. 67, 7 L.R.A. 304; Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477, 17 L.R.A.(N.S.) 1036; Grochowski v. Grochowski, 77 Neb. 506, 109 N. W. 742, 15 Ann. Cas. 300, 13 L.R.A. (N.S.) 484 and note; Schoonmaker v. Gray, 208 N. Y. 209, 101 N. E. 886, Ann. Cas. 1914D 510. 3. Grochowski V. Grochowski, 77 Neb. 506, 109 N. W. 742, 15 Ann. Cas. 300, 13 L.R.A. (N.S.) 484 and note. Note: 15 Ann. Cas. 303. 4. Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477, 17 L.R.A. (N.S.) 1036. 5. Note: 15 Ann. Cas. 304. 330, 85 N. E. 477, 17 L.R.A. (N.S.) 1036. 7. Sherman v. Warren, 211 Mass. 288, 97 N. E. 892, Ann. Cas. 1913B 614 and note. 8. Note: Ann. Cas. 1914D 513. 9. In re Seip, 163 Pa. St. 423, 30 Atl. 226, 43 A. S. R. 803. 10. Note: Ann. Cas. 1913B 615. 11. McArthur v. Scott, 113 U. S. 340, 5 S. Ct. 652, 28 U. S. (L. ed.) 1015; Taylor v. Hilton, 23 Okla. 354, 100 Pac. 537, 18 Ann. Cas. 385. 12. McArthur v. Scott, 113 U. S. 340, 5 S. Ct. 652, 28 U. S. (L. ed.) 1015. Generally as to proper and 6. Blount v. Wheeler, 199 Mass. necessary parties in equity, parties by by issuing an alias citation for certain heirs at law who are proper but not necessary parties, will not be held to be error, especially where the contestant has not been successful in having the probate of the will revoked.13 It has been held that one of two heirs to an estate is not an indispensable party to a suit by the other to set aside a will executed by the decedent as having been procured by fraud.14 Where a bequest for the benefit of a church is made to a certain person and his successors, as overseers of the church, with power to dispose of the estate in furtherance of the object of the bequest, no trust being expressed, the church is not a necessary party to a bill to contest the will.1 15 399. Executors.-By the settled doctrine of the English ecclesiastical courts, in any proceeding to contest the probate or the rejection of a will or to compel probate in solemn form, the executor was a necessary party,16 and it is still customary to-day when a will is contested for the executors to appear and defend it.17 In fact executors are usually considered necessary parties in proceedings to contest 18 or construe a will,19 unless the executor has renounced and disclaimed any interest in the estate. 20 Ordinarily the executor may conduct the litigation involved in a will contest from the beginning to a final adjudication, in behalf of the will and those who claim under it.1 400. Notice to Persons Interested. It is frequently provided by statute that notice of the time and place for hearing an application for probating a will shall be given by personal service on all persons interested, or by publication under an order of the court, and when a formal contest of a will is commenced the contestant may in like manner be required to serve notice of the grounds of the contest on all residents interested in the estate. It has been held that a decree probating a will is void when the citation was not served on the widow or next of kin of the decedent. But a statute making it the duty of the probate judge, when the heirs of a deceased person, upon whose estate 19. Lumpkin v. Lumpkin, 108 Md. 470, 70 Atl. 238, 25 L.R.A. (N.S.) 1063. 20. Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620, 6 L.R.A. 167. 1. Lucas v. Lucas, 30 Ga. 191, 76 Am. Dec. 642. 2. Mosser v. Flake, 258 Ill. 233, 101 N. E. 540, Ann. Cas. 1914B 425; In re Sieker, 89 Neb. 216, 131 N. W. 204, 35 L.R.A. (N.S.) 1058 and note. 3. In re Horton, 217 N. Y. 363, 111 N. E. 1066, Ann. Cas. 1918A 611; Bell v. Davis, 43 Okla. 221, 142 Pac. 1011, Ann. Cas. 1917C 1075. 4. In re Sullivan, 40 Wash. 202, 82 Pac. 297, 111 A. S. R. 895. administration is sought, are residents of a foreign country, to notify the consul of such country of the pendency of and of the day set for hearing the application for letters of administration of the probate of a will, and prescribing the form of such notice, is considered as having been enacted for the sole benefit of foreign heirs, and they alone can take advantage of a failure to give the required notice, and they may waive such notice, at any time before the estate is closed.5 Caveators who appear and go to trial in a proceeding to probate a will, without seeking further time for the purpose of securing additional testimony or preparing for the hearing, cannot claim to have been prejudiced by a defect in a notice of publication. Nor can the probate of a will be collaterally attacked on the ground that after due notice was given of the time and place when the application for probate would be heard, it was not then heard, but was taken up and disposed of at a subsequent time without giving a new notice and without having adjourned the nearing to such subsequent date." Procedure, Pleading and Proof 401. Nature and Purpose of Proceeding to Contest.-There was a right to contest a will at the common law but no method was provided for a single contest. Where lands were devised and the heir or devisee brought a suit, the devisee claiming under the will was required to prove it as well as the capacity of the testator to make a devise, and there could be a contest every time a will was offered in evidence. In modern times, however, the courts refuse to take jurisdiction of a will contest by fractions. The will is considered indivisible so that the verdict of the jury or decree of the court either establishes it as a whole, or wholly sets it aside. Proceedings to contest a will are purely statutory, and the provisions of the controlling statute must be strictly complied with.10 The purpose of a proceeding to contest a will is to devest the legatees and devisees of rights in the estate of the testator, and vest the property in his heirs at law,11 or in the beneficiaries named in another will. Such a proceeding, however, is possessed of peculiar features.12 While probate proceedings are in rem and on the action being brought the parties thereto become of minor importance, the prime purpose of the proceeding being to determine whether 5. Rice v. Hosking, 105 Mich. 303, 63 N. W. 311, 55 A. S. R. 448. 6. Leach v. Burr, 188 U. S. 510, 23 S. Ct. 393, 47 U. S. (L. ed.) 567. 7. In re Davis, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 A. S. R. 105. St. 208, 5 Am. Rep. 645. 10. State v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B 526. 11. In re Shapter, 35 Colo. 578, 85 Pac. 688, 117 A. S. R. 216, 6 L.R.A. (N.S.) 575. 8. Ravenscroft v. Stull, 280 Ill. 406, 12. Braeuel v. Reuther, 270 Mo. 117 N. E. 602, Ann. Cas. 1918B 1130. 603, 193 S. W. 283, Ann. Cas. 1918B 9. Bradford v. Andrews, 20 Ohio 533, L.R.A.1918A 444. there is a will or not,13 the effect of statutes regulating contests of wills is frequently to give the proceedings the character of an action inter partes. 14 402. Time within Which Proceeding Must Be Brought.-The time within which a will may be contested is usually regulated by statute. Either a definite time may be established,15 or a fixed time with an extension for the benefit of those under disabilities.16 A saving clause in favor of persons absent from the state in a statute providing that suits to contest the probate of wills must be brought within three years, has been held to apply only to those who are subject to the jurisdiction of the state and have departed from that jurisdiction for temporary purposes, and not to citizens of other states or foreign countries: Where proceedings for the contest of a will are commenced within the statutory period of limitation, although only part of the persons interested are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.18 The right to contest a will may be lost even in the absence of a statute prescribing a time limit by such delay as amounts to laches.19 And in the absence of a statute the time within which a suit may be brought has been held to be controlled by a general statute as to actions, since a suit in a probate court to set aside a probate of a will is an action.20 403. Caveat.-In numerous jurisdictions the parties in interest may file a caveat against the probate of a will, or against its probate in a particular form. For example a legatee whose name has been cut 13. Braeuel v. Reuther, 270 Mo. 603, 193 S. W. 283, Ann. Cas. 1918B 533, L.R.A.1918A 444. 14. Mosser v. Flake, 258 Ill. 233, 101 N. E. 540, Ann. Cas. 1914B 425. 15. Braasch v. Worthington, 191 Ala. 210, 67 So. 1003, Ann. Cas. 1917C 903; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 A. S. R. 117; Storrs v. St. Luke's Hospital, 180 Ill. 368, 54 N. E. 185, 72 A. S. R. 211; Chicago Title, etc., Co. v. Brown, 183 Ill. 42, 55 N. E. 632, 47 L.R.A. 798;. Steinkuehler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L.R.A. (N.S.) 673; Stone v. Cook, 179 Mo. 534, 78 S. W. 801, 64 L.R.A. 287. Ohio St. 103, 39 N. E. 195, 49 A. S. 17. Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588, 10 L.R.A. 613. 18. Bradford v. Andrews, 20 Ohio St. 208, 5 Am. Rep. 645; Powell v. Koehler, 52 Ohio St. 103, 39 N. E. 195, 49 A. S. R. 705, 26 L.R.A. 480. 326, 32 So. 695, 92 A. S. R. 37. 20. Bent v. Thompson, 138 U. S. 114, 11 S. Ct. 238, 34 U. S. (L. ed.). 902. 16. State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Steinkuehler v. 1. Craighead v. Alexander, 38 App. Wempner, 169 Ind. 154, 81 N. E. 482, Cas. (D. C.) 229, Ann. Cas. 1913C 15 L.R.A. (N.S.) 673; Schlottman v. 847; Hartz v. Sobel, 136 Ga. 565, 71 Hoffman, 73 Miss. 188, 18 So. 893, 55 S. E. 995, Ann. Cas. 1912D 165, 38 A. S. R. 527; Powell v. Koehler, 52 L.R.A.(N.S.) 797. from the will may, when the will is propounded, enter a caveat to its being probated in its incomplete condition, and may plead and prove what were the words removed from the will, and pray that it be probated as originally executed. He is not compelled merely to file a caveat to the probating of the will as propounded, and then in a separate litigation propound the same will with the addition of the missing words and clauses. It seems that a caveat may be amended,3 and a demurrer to a caveat may be filed. A caveat may take the form. of verified objections to the probate of a will, and when objections are filed as soon as the paper is propounded, the will should not be probated until disposition of the objections has been made. After issues have been framed covering all the grounds relied on in a caveat to a will, and sent to a court of law for trial, the caveator should not be permitted to dismiss them for the purpose of filing a new caveat, without the consent of the caveatee. Sometimes a petition to revoke the probate of a will is likewise termed a caveat. A caveat or statement of opposition to the probate of a will may be filed at any time prior to the hearing of proof of the will. By grace of statutory permission a caveat may also be filed after the probate of a will and within such time as may be named in the statute.10 404. Revocation of Probate.-A probate court has power, upon petition, notice and hearing, to vacate or annul a prior decree probating a will clearly shown to have been without foundation in law or in fact and in derogation of legal right. Thus the probate of a will may be annulled on the ground that the will was not signed by the testator nor by any person for him or at his request, nor subscribed by him in the presence of the required number of credible witnesses.11 The probate of a will may also be revoked as a step incidental to the granting of probate to a later will revoking it.12 The power need not be expressly conferred by statute, but may be implied from the general 2. Hartz v. Sobel, 136 Ga. 565, 71 S. E. 995, Ann. Cas. 1912D 165, 38 L.R.A. (N.S.) 797. 3. Dibble v. Currier, 142 Ga. 855, 83 S. E. 949, Ann. Cas. 1916C 1. 4. Dibble v. Currier, 142 Ga. 855, 83 S. E. 949, Ann. Cas. 1916C 1; Henderson v. Jackson, 138 Ia. 326, 111 N. W. 821, 26 L.R.A. (N.S.) 479. 5. Steinkuehler v. Wempner, 169 Ind. 154, 81 N. E. 482, 15 L.R.A. (N.S.) 673. 6. Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327. 7. Bennett v. Bennett, 106 Md. 122, 66 Atl. 706, 19 L.R.A. (N.S.) 121 and note. 8. Craighead v. Alexander, 38 App. Cas. (D. C.) 229, Ann. Cas. 1913C 847. 9. Raleigh v. First Judicial District Ct., 24 Mont. 306, 61 Pac. 991, 81 A. S. R. 431. 38 10. Craighead v. Alexander, App. Cas. (D. C.) 229, Ann. Cas. 1913C 847; Bowen v. Bowenstein, 39 App. Cas.. (D. C.) 585, Ann. Cas. 1913E 1179. 11. Merrill Trust Co. v. Hartford, 104 Me. 566, 72 Atl. 745, 129 A. S. R. 415. 12. Conzet v. Hibben, 272 Ill. 508, 112 N. E. 305, Ann. Cas. 1918A 1197; Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49. |