
    The Reformed Presbyterian Church et al. v. James P. Nelson et al.
    1. Where the plaintiff gives notice of appeal, and part of the defendants enter into an undertaking on his behalf to perfect the appeal, the undertaking, though defective, does not entitle the other defendants to the unconditional dismissal of the appeal. "Under the statute such a dismissal is only authorized after the failure of the plaintiff to give an undertaking in accordance with the order of the court.
    2. In a ’suit to contest the validity of a will, the legatees and devisees are indispensable parties; and the omission to make a legatee a party to such suit is error, for which the decree setting aside the will will be reversed.
    Error to the District Court of Muskingum county.
    The original petition was filed in the Court of Common. Pleas of Muskingum county, by William S. Nelson and •John Nelson, two of the heirs of Susannah Forsyth, deceased, to contest her last will and testament. The legatees, ■devisees, and executors named in the will were made defendants in the petition, as were also the other heirs of the testatrix, to wit: James Nelson, Sarah Nelson, and Mary Ann Nelson.
    
      The will, among other bequests, gave to David Eorsvth the silver watch of the testatrix. After satisfying these bequests the residue of her property was given to the Reformed Presbyterian and Covenanter Church; and H. P. McClurken and Marshall Hardesty were appointed executors.
    There was no service of process upon the defendants David Forsyth, James Nelson, or Mary Ann Nelson; nor was their appearance in way effected. A verdict and decree were rendered sustaining the will. The plaintiffs gave notice of their intention to appeal, and the court fixed the penalty of the bond for such appeal at $500. To perfect the appeal a bond was executed and filed, of which the following is a copy:
    APPEAL BOND.
    Kuow all men by these presents : That we, William Forsyth and Thomas Mintier, of the county of Muskingum, in the State of Ohio, are held aud firmly bound unto B. P. McClurken and William M. Hardesty, executors of Susan-nah Forsyth, deceased, and others, in the penal sum of five hundred dollars, lawful money of the United States, to the payment of which sum, 'well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents; sealed with our seals, signed and dated at Zanesville, this 15th day of December, A. d. 1874. The condition of the above obligation is such, that whereas, at the November term, A. d. 1874, of the court of common pleas, within and for the said county of Muskingum, in a certain civil action in the said court of •common pleas, then pending, wherein William S. Nelson and others were plaintiffs, and H. P. McClurken and others were defendants, a certain judgment was, by the said court of common pleas, rendered in favor of said defendants and against the said plaintiffs, finding the paper writing mentioned in the petition in said action was the valid last will of the said Susannah Forsyth, deceased, and for the costs of suit; and, whereas, the said plaintiffs, at the said term of the said court of common pleas, gave due notice of their intention to appeal from the said judgment and finding to the district court, within and for the said county of Muskingum, and are now desirous of perfecting such appeal ; now know ye, that if the said plaintiffs shall abide and perform the order aud judgment which may be made or rendered by the said district court against them, in this behalf, and shall also pay all moneys, costs, and damages which may be required of or awarded against them by the said district court, in this behalf, then the above obligation shall be void; otherwise, in full force and virtue.
    William Forsyth. [seal.]
    Thomas H. Mintier. [seal.]
    Accepted and approved by me this 15th day of December, a. d. 1874. Fred. Geiser,
    
      Clerk of the said Court of Common Pleas.
    
    In the district court, McClurken and Hardesty, as executors filed their motion to dismiss the appeal “ for the reason that the undertaking for the appeal is not sufficient under the statute in such case made and provided.”
    On the hearing of the motion, the court found that William Forsyth and Thomas H. Mintier, who executed the appeal bond, were defendants in the case, and overruled the motion, to which ruling the executors excepted.
    The trial in the district court resulted in a verdict and decree setting aside the will, and a judgment was rendered in favor of the plaintiffs against the defendants for costs.
    It is now assigned, among other errors :
    1. That the court erred in overruling the motion to dismiss the appeal.
    2. In trying the action before David Forsyth, one of the’ legatees named in the will was served with summons, or' his appearance otherwise effected.
    
      Evans & Beard, for plaintiffs in error :
    The appeal should have been dismissed. Job v. Harlan, 13 Ohio St. 486.
    The legatees were necessary parties. 21 Ohio St. 131 ;, section 36 of the Code of 1853.
    
      
      W. H. Ball & John O'Neill, for defendants in error.
   "White, J.

There was no error, in onr opinion, in the-overruling of the motion of the executors to dismiss the appeal.

The statute provides that, the party desirous of appealing his cause, shall give an undertaking with one or more-sureties, to be approved by the clerk of the court, or anyjudge thereof, in the penalty and with the conditions therein-provided. S. & C. 1163. The undertaking is to be made “payable to the adverse party, or otherwise, as may be-directed by the court, where the conflicting interests of the parties require it.” Ibid. 1165.

In the present case, two of the defendants, William Forsyth and Thomas Mintier, executed the undertaking, or appeal bond, on behalf of the plaintiffs. The plaintiffs-were the appellants, and as Forsyth and Mintier could not execute an undertaking, or a bond, to themselves, the instrument could only be operative in favor of the other-defendants. Such an instrument, though not in conformity to the statute, was sufficient to give the appellate court jurisdiction, and to bring the case within the provisions of the act of April 8, 1856, supplementary to the act regulating appeals. S. & C. 1169.

That act is as follows : “ That, in all cases where an appeal has been, or shall be, taken from the court of common pleas to the district court, and the surety in the undertaking for appeal shall have removed from the state, or for any cause whatever shall be insufficient, or if such undertaking- shall be insufficient in form or amount, it shall be lawful for the district court, on motion, to order a change- or renewal of such undertaking, or said court may order a new undertaking to be given, with security, to be approved by said court, or the clerk thereof; and if the said order of said court shall be complied with and obeyed, said appeal shall not be dismissed, . . . but if said order of said court shall not be complied with and obeyed, said ap~ peal, on motion for that purpose, shall be dismissed, and the judgment, or decree, in the court below shall be revived.”

This being a remedial statute, should be liberally construed. Thus construed, the defect in the undertaking did not lay the foundation for the absolute dismissal of the canse. But, under the statute, such dismissal was only authorized after the failure of the appellants to give an undertaking in accordance with the order of the court.

There was error in trying the issue and in rendering the decree, without the appearance of David Forsyth, one of the legatees, having been effected in the action.

The code, in respect to parties, has adopted, substantially, the rules before existing in courts of equity.

Section 40 provides, that: “ The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy •can not be had without the presence of other parties, the ■court must order them to be brought in.” S. & 0. 958.

The proposition that, where no objection is made by demurrer or answer on account of the defect of parties, the objection is to be deemed as waived, applies only in cases where it is competent for the party pleading to waive the objection. ,But where the presence of an absent party is essential to the determination of the controversy, the parties can not waive the objection. The court, in such case, must order the party to be brought in. Moreover, in a suit to contest the validity of a will no answer is required. The statute directs what the issue is to be, whether there is an .answer or not.

It is the duty of the plaintiff instituting a suit to settle a controversy, to see that the necessary parties are brought before the court.

We are not without adjudications directly on the question now before us.

McMacken v. McMacken, 18 Ala. 576, was a proceeding in error to reverse a decree setting aside a will. A person named as a legatee in the will was not made a party to the .suit, in which the will was set aside. It was held, by the •court, that to a bill to set aside a will all the legatees are indispensable parties, and that the omission of one, who is .an indispensable party to the bill, is a defect, for which the decree will be reversed on error, although the objection is taken for the first time in the reviewing court. To the same effect is Vancleave v. Beam, 2 Dana, 155, and Rogers v. Thomas, 1 B. Mon. 390.

In the case last named one of the questions stated was, whether there was available error in trying the issue as to the validity of .the will when all necessary parties were not before the court. In answering this question, on page -398, the court say : “ Two slaves, emancipated by the contested document, were not made parties. They were necessary parties, whose rights can not be concluded by the verdict and decree between other parties. One of the chief ■objects of such a procedure by bill, was to settle, finally and -conclusively, all litigation as to a contested will; and it is the chancellor’s duty in such a case to require all persons interested as heirs or devisees to be made parties before he permits a final trial or renders a final decree. Endless litigation and confusion might result from permitting a decree to stand, which can not conclude all persons directly interested in establishing or invaliding the will.”

In Shields v. Barrow, 17 How. 139, Curtis, J., in speaking of the different classes of parties in equity, describes the third class as follows : “ Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree can not be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent th equity and good conscience.”

In Holt v. Lamb, 17 Ohio St. 375, the effect of the decree .setting aside the will was drawn in question in a collateral suit. And it was there held that the parties to the suit in which the decree was rendered were bound by the decree, that it was not void as to them ; but that as to all other persons in interest the decree was void. No question arose in that case as to the decree being reversible on error. But as it was held to be void as to some of the persons in interest and binding as to others, in respect to the same property, it would seem to be necessarily erroneous as to the parties to the suit.

In Singleton v. Singleton, 8 B. Monroe, 340, a different view was taken of the effect of a decree setting aside a will. And it was held in that case that the verdict of the jury upon a bill filed, contesting a will, must be binding on all interested in the will, or it is not binding upon any. But this case recognizes the authority of Rogers v. Thomas, supra, in which it was held that the absence of a necessary party to the proceeding setting aside of the will, was ground for the reversal of the decree on error. See page 356 of the opinion.

Judgment reversed and cause remanded.

Johnson, J.,

dissenting : — The judgment of the court below setting aside the will, is reversed by this court, on the application of the executors and others, who were served and made full defense, on the ground that one Forsythe, a legatee, who was a defendant, was not served or otherwise before the court below. No objection was made by any one, on this account, in the common pleas, or after appeal in the district court, before final trial and judgment.

The executors as such, defended for all claiming under the will, and so far as this court is advised, represented Forsythe as legatee. He does not complain and is not even a party before us. Without taking space to state the reason therefor I am of the opinion that under the wills act, and under the civil code, the plaintiffs in error, having made no objection at the proper time, can not ask a reversal of this judgment because Forsythe, a legatee only, was not before the court below.  