
    Myers, Exrx., v. Hogue et al.
    
      (Decided December 29, 1932.)
    
      Messrs. Seihel, Hill & Seihel, for plaintiff in error.
    
      Messrs. Bowers & Bowers, for defendants in error.
   Sherick, J.

This proceeding in error is instituted by Nannie F. Myers, the executrix of the will of Clara Hogue, whereby she seeks reversal of a judgment entered on the verdict setting aside the will of the testatrix.

The matter is before this court on the motion of the heirs at law, John R. Hogue and others, the defendants in error, to dismiss the petition in error for the reason that Nannie F. Myers is the sole legatee under the purported will of the testatrix, and she is not made a party to this action, and upon the further motion of the heirs at law for a diminution of the record to show that Nannie F. Myers and Nannie F. Myers, executrix, are one and the same person, and that she attended throughout the trial as a litigant in defense of the will, thereby voluntarily entering her appearance in the action. These motions are countered by that of the executrix to strike the same from the files. The merits of the controversy were contemporaneously presented. The petition in error recites sixteen grounds of error. The matters presented, however, may all be disposed of upon consideration of the principal error assigned.

The facts gained from the pleading and the evidence essential for a determination of this action are that Nannie F. Myers, the sole legatee under the will, was not made a party defendant in her individual capacity either in this proceeding or in the trial court, that two minor heirs at law, made parties defendant with the executrix by the petition, did not have a guardian ad litem appointed for .them to defend the suit, and that no answer was filed therein for them as provided by statute.

An examination of the voluminous record before us shows that Nannie F. Myers, as executrix, participated throughout this trial in her official capacity. She sat at the trial table with counsel. She did not offer herself as a witness. We do not find at any place in this record that she individually submitted her person to the jurisdiction of the trial court. An inspection of the transcript discloses no summons issued to her individually, or any waiver thereof, but we do find, therein, under date of April 4, 1932, two rulings of the court, which have been journalized. The first is without doubt journalized by the clerk from the bench docket of the trial court. It reads as follows:

“Motion of deft., Nannie F. Myers, Executrix, to vacate the ruling on the motion for new trial and also to vacate judgment on verdict' overruled for reason that record shows that Nannie F. Myers was present' in person during trial before jury with counsel and thereby entered appearance as heir and legatee and that minor heirs defts. were properly served with summons and they are more than fourteen years of age and are not prejudiced by verdict and judg. Deft. Nannie F. Myers executrix excepts.”

The second entry recites the same action by the court upon the same motion. It is silent on the matter of Nannie F. Myers entering her appearance as an heir or legatee. This entry is approved by all counsel and by the court.

It is the claim of the executrix that she, in her individual capacity, as the sole beneficiary under the will, was a necessary and indispensable party to the action in the trial court, and, not having been made a party, and not having been summoned, and not having entered her appearance therein, the action was in fact never commenced, and the trial court was without jurisdiction to proceed to try the issue or to render any judgment therein adverse to her as executrix or as an individual.

On the other hand, it is the claim of the defendants in error that Nannie F. Myers, being the executrix and the sole legatee under the will, was one and the same person, and, in defending as such executrix, she but defended for herself as an individual, and entered her appearance- therein, and is therefore individually bound by the judgment entered. In other words, by her silence and conduct, and her present position, she has trifled with the court and its administration of justice and cannot be heard to assert the claim she would now make after- the year has expired in which a will contest might be commenced by the plaintiffs below. This claim is further enlarged by the claim made in support of their first motion, which is in fact that Nannie F. Myers, not having been made a party to this proceeding in error in her individual capacity, this court is without jurisdiction and power to reverse the judgment complained of, by reason of the fact that Nannie F. Myers is a necessary and indispensable party to the proceeding in this court.

We would first dispose of the second contention of the defendants in error. What we shall say in respect thereto is in part relevant to their first claim. If the first claim of the defendants in error, that the executrix and the individual are one and the same person, and the making of the individual a party and causing her to he summoned in the trial court was a vain and superfluous act, then by a parity of reasoning the doing of those acts in this court should and would be equally ostentatious. In this respect the claims contended for are in direct variance. Both cannot be true, unless aided by the provisions of Section 11256, General Code.

Our attention is directed to Snider’s Exrs. v. Young, 72 Ohio St., 494, 74 N. E., 822, and Young v. Meyers, Jr., Exr., 124 Ohio St., 448, 179 N. E., 358, with the remark that the petition in error shows upon its face that Nannie F. Myers, individually, was a party in interest, and is not made a party, and that these authorities clearly hold that Section 11256, General Code, is mandatory in its provision that “parties who are united in interest must be joined, as plaintiffs or defendants,” in all stages of a litigation, including proceedings in error. This is sound. An examination of these two cases, however, reveals that the parties spoken of, who were not made parties in the error proceedings, had been parties to the action in the trial court. That is not the situation here shown to exist, unless the sole beneficiary voluntarily entered her appearance in the trial court.

We are of opinion that the statute advanced cannot be so enlarged and construed. It is provided that a suit to contest a will is triable to a jury and not to a court. If Nannie F. Myers was not a party in the trial court, she cannot be brought into this, a reviewing court, in the first instance, and be denied her right to a jury trial and to meet her accusers face to face. We therefore hold that Section 11256, General Code, cannot be invoked where the one not made a party on review was not a party to the litigation in the trial court.

It is held in McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548, that an executor named in a will is not united in interest with the heirs and devisees. His interest may pertain only to his remuneration as executor, to an administration and settlement of the estate, and self-protection for himself and his bondsmen. True, he may be a beneficiary as well, but his interests are not the same, nor can they be said to be united.

Considering now the first claim of the defendants in error, and the converse thereof maintained by the executrix, we quote from Section 12080, General Code, “all the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.” The provisions of this section are likewise mandatory. Nannie Myers as the sole beneficiary was not only a necessary, but an indispensable, party to the contest in the trial court.

Nor did she voluntarily enter her appearance by defending as executrix. She certainly did not do so by any act or word on her part, unless she shall be held to have so acted as now to forbid her to be heard otherwise, or unless the theory is adopted that an executrix who is the sole beneficiary is one and the same person.

We do not consider this theory to be.sound. An executor, as previously pointed out, has interests in an estate not possessed by a beneficiary. When summoned into court in a will contest, it is these interests he would protect. Such interests are not the interests which a legatee or devisee is interested in protecting. It is conceded that the same end is to be obtained, that is, to uphold the will; but this fact does not 'consolidate the separate entities, or bestow on them collectively their various interests to be protected. Again an executor may be deserving of the court’s protection in an act previously done under order of court in the administration of his trust.

The fact that the executrix remained silent until after the year for contest expired cannot be urged against her. It is not the duty of an executor, or the proponents of a will, to lend aid and comfort to those that would contest and set it aside. One should not excuse his own neglect, and then be heard to make the charge of waiver by another thereof when that other, has done in one capacity what the law contemplated and enjoined upon him to be done in that capacity. The heirs at law well know the terms of Section 12080, General Code, and that an executor has a duty to perform, and interests to protect, unlike those of a legatee or devisee.

It is further held in the McCord case, supra, that an action to contest a will is not commenced as to the devisees under the will by the issuance of a summons for the executor, though duly served upon him; and we are unable to see, in the absence of summons and waiver, where the present action had in fact been commenced.

Considering the journal entries previously mentioned we have this to say: That the ruling journalized from the court’s minutes was only put on the journal as a ministerial act by the clerk. The journal from which the court speaks is that which he approved. It disposes of the motions ruled upon and noted in his minutes. It must be assumed that he reconsidered his unwarranted assumption, stated in his minutes, which the record does not warrant or justify —the legal conclusion momentarily entertained.

It is hardly worth while to consider the claim of the executrix, for the judgment should be reversed for the additional reason that the two minor heirs at law had not answered by a duly appointed guardian ad litem. Had they done so, they would have denied that which was to their advantage. Of this the executrix may not complain. The error in this omission, if any, was for the minor defendants to advance. In this instance they hardly could- complain, as such omission did not prejudice their rights, which were served by the judgment setting aside the will, for they would take under the law and not under the will.

The motions for the defendants in error are not well taken and are stricken from the files, and, for the reasons indicated, the judgment is reversed.

Judgment reversed.

G-arver, P. J., and Lemert, J., concur.  