
    
      Kincheloe v. Kincheloe.
    August, 1840,
    Lewisburg.
    (Absent pabkhb. J.)
    Appellate Practice — Bill to Set Aside Will — Parties. 
       —A decree dismissing a bill iiled to set aside a will, if correct on the merits as between the plaintiff and defendant, will be affirmed, though some of the heirs of the testator were not, and the plaintiff was not required to make them, parties to the suit: dissentiente TtroKBR, P.,who held, that in such case no decree could properly be made, except a decree dismissing the bill for the failure of the plaintiff to make the proper parties, after being ruled to do so.
    Same— Same— Devisavit Vel Non. — The question as to the admissibility and effect of the defendant's answer to a bill tiled to set aside a will, as evidence on the trial of the issue devisavit vel non, considered by üaiíell and Stanard. J.
    Deposition — Notice of Taking — Sufficiency.- A notice is given by plaintiff to defendant, for taking the deposition of several witnesses at a specified place in Missouri, on six successive days, between certain hours of each day: Help, considering the distance of the place appointed for taking the depositions and the uncertainty of the precise time at which the party would be enabled to have things in readiness for taking them, the notice is sufficiently definite.
    A writing purporting to be the will of Daniel Kincheioe the elder, of Wood county, was proved in the court of the said county at August term 1834, by the oaths of the subscribing witnesses, and was thereupon ordered to be recorded. It bore date the 4th of August 1826. The testator died the 14th of August 1834, having then very nearly completed his eighty-fourth year. At the date of his will, and at his death, there were living his three sons, Nestor, Elijah, and Daniel, an infant son of a deceased daughter, and three infant children of another daughter, likewise deceased. The will contained devises or bequests to each of the sons and grandchildren. The wife of the testator was also a devisee and legatee therein; but she died before him. Daniel Kincheioe, the son of the testator, was appointed the executor.
    In November 1834, a bill was filed in the circuit superior court of Wood county, by Nestor Kincheioe against Daniel Kinche-ioe, alleging that the said writing (which he exhibited) was not the will of the decedent; that even if no undue influence had been exerted over him, he was, at the date of the writing, incapable of making a will, by reason of the imbecility of his mind, arising from extreme old age; that in the enfeebled condition of his mind, the defendant, who was his youngest son and lived with him, was enabled to exert, and did exert, an undue influence over him, to induce him to make a will contrary to his wishes, and unduly favourable to the defendant; and that after the execution of the writing, a rigid surveillance was exerci.sed by the defendant, to prevent the testator from making any alteration in the dispositions therein contained. The bill called upon the defendant to answer all the foregoing allegations, fully, plainly and distinctly ; and also propounded various special interrogatories, of which the most material were (in substance) whether the defendant had not frequently heard his father, some years before the date of the writing, declare that he would make no will — that the law should be his will? Whether the defendant, before and about the date of the said writing, had not frequently said that his father was so infirm as to be incapable of business? and whether the defendant had ever said that his reason for not removing to a farm he had purchased, was the fear lest his father should alter his will? The prayer of the bill was, that the court would direct an issue to be made up and tried, whether the said writing be the will of the said decedent or not? and if it should be found not to be his will, that the same might be annulled by a decree of the court; and for general relief.
    
      The answer of Daniel Kincheioe the defendant was duly sworn to, and it denied, positively and explicitly, every material allegation contained in the bill, and responded to every material interrogatory in a manner unfavourable to the complainant. Respecting the charges of mental incapacity of the testator, and undue influence exerted over him by the defendant, the terms of the answer were as follows: “Respondent says that at the time of making and executing the said will, his father was in the full enjoyment of all his mental faculties, and as capable of so doing as at any period of his life; and he fully understood what he was doing. Respondent denies, in the most positive manner, his ever having exercised the least influence over the devisor in making the said will, and declares that all the charges or intimations to that effect contained in the complainant’s bill are utterly false.”
    In April 1835, it was ordered that an issue be made up, and a jury impannelled on the common law side of the court, to try whether the said writing be the will of Daniel Kincheioe deceased, or not. At April term 1836, a jury was accordingly impannelled, and the trial had; when the jury found that the said writing was the true last will and testament of the said decedent.
    Three bills of exceptions were filed by the plaintiff, to opinions of the court given against him upon the trial. Of these It is only necessary to notice the first and second.
    
      By the first bill of exceptions it appeared, that the plaintiff offered to read in evidence to the jury the depositions of Cyrus Saunders, Abraham Vandiver) George Parker and Elias Kiucheloe, taken and certified by two justices of the peace of Shelby county in the state of Missouri, under a commission issued by the clerk of the circuit court. The commission was dated the 18th of May 183S, and directed to any two justices -of Shelby county aforesaid, requesting them, “that on the 6th, *7th, 8th, 9th, 10th and 11th days of July next, at the house of W. B. Braughtons in the county of Shelby and state of Missouri, between the hours of seven o’clock a. m. and six o’clock p. m. of each day,’’ they should assemble themselves and examine the said witnesses.
    One of the depositions was dated the 10th, another the 11th, of July 1835. Neither the time of taking the two others, nor the place of taking any one of them, was stated or appeared, otherwise than by the certificate of the justices that each deposition was taken “pursuant to the annexed commission, and also the annexed notice.’’ And when the depositions were returned to the office of the circuit court under the seals of the justices, no notice was returned with them. It was- proved, however, that after the return of the depositions to the office, the counsel of the complaint filed therewith an original notice, from the complainant to the defendant, that the depositions of the said witnesses would be taken on the days, between the hours, and at the place, specified in the commission, and mentioned above; on which notice was an affidavit, dated the 18th of May 1835, of the service thereof on the defendant, by delivering him a true copy. And it was further proved that the said counsel enclosed and sent by mail, together with the commission under which the depositions were taken, a true copy of the original notice filed as aforesaid. There being no other evidence that the depositions were taken in pursuance of notice to the defendant, or at the time and place mentioned in the said original notice, and the defendant having, previously to the trial, to wit, on the 25th of August 1835, endorsed upon each deposition an exception, on the ground that no notice of the time and place of taking the same was given him, the court, on the motion of the said defendant, refused to permit the said depositions to be read: to which opinion the plaintiff excepted.
    *The depositions so excluded contained material evidence for the complainant. • Three of the deponents testified, that they were acquainted with the decedent in the'year 1826, and believed that at the date of the writing in question (the 4th of August 1826) he was not capable of making a will. The other deponent testified, that he was acquainted with the decedent from 1815 to 1831,- though not sufficiently acquainted to form “any correct opinion as to his capacity;” but from the observations he had been able to make during his acquaintance with him, he did not think him capable of doing any business of importance. This deponent, however, added, that he had no distinct recollection of having been in company with the decedent about the 4th of August 1826.
    By the second bill of exceptions it appeared, that the defendant offered to read to the jury, as evidence, the bill filed in the cause, together with the answer of the said defendant thereto, and asked the court to instruct the jury, that the defendant was entitled to the benefit of the answer, as evidence on his behalf upon the trial of the issue, in the same manner and to the same extent that an answer of a defendant would be evidence for him upon the hearing of a cause in a court of equity. The plaintiff objected to the reading of the said answer as evidence upon the trial of the issue, and to the giving of such instruction as to the effect of the answer when read; but the court overruled his objections, permitted the answer to be read, and gave the instruction prayed for: to which opinions the plaintiff excepted.
    The verdict, and all the proceedings had upon the trial of the issue, being certified to the court on its chancery side, the complainant moved the court to award a new trial of the said issue, upon the ground set out in the bills of exceptions aforesaid. This motion the court overruled. The cause then came on to be heard upon the bill and exhibit, the answer of the *defendant, and the verdict of the jury: “whereupon” (the record proceeds) “it.appearing to the court here, from the verdict aforesaid, that the will in the bilí and proceedings mentioned is the true last will arid testament of said Daniel Kincheloe deceased, but all parties in interest not being before the court, so as to authorize a decree affirming said will, it is therefore adjudged, ordered and decreed that the bill of the complainant be dismissed,” with costs to the defendant.
    From which decree the complainant appealed to this court.
    Fisher, for appellant.
    Johnson, for appellee.
    
      
      Appellate Practice — Bill to Set Aside Will — Want of Proper Parties — Waiver.—If the heirs of the intestate are not made parties, and there is no objection made in the lower court until after the issue of derisarit i'H non has been made np and tried, and the jury has returned a verdict against the will, which has been probated, those claiming under the will will not then be allowed to object to a decree in accordance with the verdict on the ground that the heirs had not been made parties. Dower v. Church, 21 W. Va. 23, citing, at pages 52 and 53, Kincheiloe v. Kincheloe, 11 Leigh 393.
    
   CABELE, J.

In the case of Swann v. Selden, this court decided that the decree dismissing the bill on the merits ought not to be reversed, merely on the ground that some of the persons concerned in interest had not been made parties. It is the business of the plaintiff to make all proper parties. If he fails to do so, it is too late for him, in the appellate court, to take advantage of his own omission, for the purpose of reversing a decree which is correct and proper in all other respects.

If therefore the decree were right on the merits, it would be too late now to object to the want of parties, whatever may have been the reason which operated on the mind of the chancellor in dismissing the bill. And if it be wrong on the merits, it ought to be reversed on that ground, and not on the ground of the want of parties.

In a suit in chancery, the object of which is to contest the validity of a will, on and issue devisavit vel non, under the act of assembly, I do not think that the answer of the defendant becomes, of necessity, evidence in the cause, on the question as to the validity of the will. Where no appeal is made to the conscience of *the defendant; where no discovery is sought from him as to facts within his particular knowledge, but he is called on to answer, merely as a step or part of the proceeding through which it is necessary to pass, for obtaining a trial before a jury; in such a case, it would be unjust to make the answer evidence as to the validity of the will. In such a case, the statements of the answer are entitled to no more weight than the allegations of the bill. In such a case, the position of a party as defendant entitles him to no advantage.

But in the case before us, an appeal is directly made to the conscience of the defendant, by various searching interrogatories, which he is called on to answer specially. Being thus called on and required to give evidence which might have operated against him, he ought, on the principle of chancery practice, to be entitled to its benefit when it operates in his favour.

I am of opinion, nevertheless, that the decree dismissing the bill is wrong on the merits. The verdict of the jury ought to be set aside, because it was rendered on a trial in w'hich material testimony offered by the plaintiff was excluded from the consideration of the jury. The objection to the excluded depositions, founded on the alleged insufficienc3r or illegality of the notice, is in my opinion not valid. When we consider the great distance of the place where the depositions were to betaken, the uncertainty of being able to arrive there at a particular day, and the difficulty and uncertainty of procuring the attendance of the commissioners and of numerous witnesses at the same time and place, it was quite reasonable to notify the adverse party that the depositions would be taken on six successive days, so as to justify the taking of them on any of the days, even the last.

On this ground, I am for reversing the decree, and remanding the cause for a new trial of the issue. And as the cause is necessarily to go back, I think the complainant '^'should be ruled to make all proper parties, and on his failure to do so, that the bill should be dismissed.

TUCKER, P.

In this case, I am of opinion that the decree of dismission of the plaintiff’s bill was erroneous. That dismission was not upon the merits, but for want of parties. This distinctly appears to my mind, from the terms of the decree. After reciting the return of a verdict in favour of the will, it proceeds — “but all parties in interest not being before the court, so as to authorize a decree affirming said will,” it is decreed that th,e bill be dismissed. Here there is a disclaimer of a decree on the merits, and a dismission because there are not parties to enable the court to render such decree.

Considered as a dismission for want of parties, it was erroneous; for the court should rather have ordered the proper parties to be made, and have given time to amend the bill; and the bill should only have been dismissed in case the plaintiff failed to make parties. Allen &c. v. Smith, 1 Leigh 231; Hill v. Kirwan, Jacob 163; 4 Cond. Eng. Ch. R. 76; Green v. Poole, 4 Bro. P. C. 122, (ed. Toml. vol. 5, p. 504;) Key v. Hord &c., 4 Munf. 485.

But if the dismission be considered as a decree on the merits, it was yet more erroneous. Eor no decree can be properly pronounced affirming the validity of a will (which is the effect of a dismission on the merits here) unless all persons concerned in interest are before the court. For the will cannot be good against some of the heirs, and void as to others: nor can a verdict and decree against one bind the others. The other heirs may therefore file their bills, and on the trial of an issue, it may be found against the will. If so, then the will would be void as to them, and good against Nestor Kincheloe, if this decree is to be taken *as affirming the will as to him. This cannot be. Where it appears that all persons interested are not before the court, the court should require the parties lo be made, and if not made in reasonable time, the bill should be dismissed; riot on the merits, but for defect of parties. The question of the validity of a will is integral, and cannot be disposed of piecemeal.

With these views, I cannot go into the other questions, which are not before us, as the dismission has been for want of parties only; but I am of opinion to reverse the decree of dismission, and send the cause back, that the proper parties may be made.

The decree of the court of appeals was as follows:

“The court is of opinion that the depositions offered by the appellant in evidence on the trial of the issue were improperly excluded from the jury. The court is further of opinion that though the omission to make all the heirs of the testator parties, if that were the only objection to the decree, would not authorize the reversal of it, at the instance and for the benefit of the party guilty of the omission, yet as the decree is to be reversed on a different ground, and the cause remanded, it is proper, when the case goes back to the circuit court, that that court should require the other heirs to be made parties; and as the introduction of the other parties may change the question presented by the appellant’s exception to the introduction and effect of the answer of the appellee, as evidence on the trial of the issue, that question need not be (as it is not) decided. Therefore” decree reversed with costs, and cause remanded to the circuit court, “with directions to require the appellant to make the other heirs parties, and on his failure to do so in a reasonable time, to dismiss his bill for want of parties; and in the event the parties are made, for such further proceedings as may be proper.”
*JrrnGH Stanard also delivered a separate opinion in the ioregoing case; but, as he informed the reporter, the manuscript was after-wards mislaid or lost. ITis opinion (according: to a summary furnished by him to the reporter) was, 1st. That the answer to a bill for an issue devisavit vel non cannot be used as evidence for the respondent, in respect to facts alleged in the bill, and thereby urged against the validity of the will, and denied by the answer, except where the facts are suggested to be, or from their nature must be. within the special knowledge of the respondent, and as to them an appeal is made to his conscience, and a discovery specifically called for from him. when therefore the hill suggests invalidity of the will for want of testamentary capacity of the decedent, hy reason of age, or defect of intellect, or other cause not produced hy the immediate agency, nor coming within the particular knowledge, of the respondent, the answer asserting the testamentary capacity, and denying the existence of the suggested defect or cause, is not evidence to the jury for the respondent, to prove such capacity. 2dly. He was also of opinion, that, making due allowance for the distance of the place at which the depositions were to be taken, the notice in this case was sufficiently definite, and that the court erred in the opinion hy which the said depositions were excluded from the jury. And he concurred in the decree that was rendered hy this court. — Note in Original Edition.  