
    Mangan et al., Appellants, v. Hopkins et al., Appellees.
    (No. 34730
    Decided December 19, 1956.)
    
      Messrs. Hornbech, Bitter & Victory, Mr. Edwin. Knachel and Mr. Donald E. Ryan, for appellants.
    
      Messrs. McDonald, HopTcins, Hood & Hardy, for appellees.
   Per Curiam.

The rule is now well established by virtue of the decisions of this court in Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, and Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, that, under the provisions of Section 2741.02, Revised Code (former Section 12080, General Code), and Section 2741.09, Revised Code (former Section 12087, General Code), it is mandatory and jurisdictional that the executor or administrator be made a party in an action to contest a will, and that in such an action the court is without jurisdiction unless the executor or administrator is made a party, and a summons, duly followed by service, is issued within six months after the will has been admitted to probate.

It is argued in the instant case that because W. Dean Hopkins was neither an heir nor a devisee it could reasonably be inferred that he was a party as administrator with the will annexed, and that service on him was so made. In the Bynner case, supra, a defendant was both legatee and executor and was served only as an individual. This court affirmed the dismissal of that action for failure to serve such defendant in his representative capacity.

In an action to contest a will, the fact that the executor or administrator is named as a party and was so served must clearly appear from the record of the case, and the fact that the person serving as executor or administrator may or may not be a party in another capacity does not eliminate the requirement that he be served in his fiduciary capacity.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Weygandt, C. J., Matthias, Bell and Taft, JJ., concur.

Haut, ZimmeRmah and Stewart, JJ., dissent.

Taft, J.,

concurring. When Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, and Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, were presented to this court for consideration in 1950, one side argued in effect, as have appellants in the instant case, that, so far as the executor or administrator is concerned in a will contest action, such executor or administrator is not two legal entities but only one legal entity and is merely an individual acting- in a representative capacity. The other side argued in effect that such executor or administrator is a separate legal entity from the individual holding such office. That this court adopted the latter concept is clear from what is stated “by the court” in its opinion in Bynner v. Jones, supra (154 Ohio St., 184). The reasons advanced in that opinion indicate that in such a suit the executor is a separate legal entity from the individual who happens to be such executor. Thus, where A is executor of an estate, A as an individual is a separate legal entity from A as such executor. If, therefore, only A as an individual is made a party and is summoned, the separate legal entity that is A as executor is not thereby either made a party or summoned, even though the body of the petition names A as executor (it did in Bynner v. Jones).

When Bynner v. Jones, supra (154 Ohio St., 184), was decided by this court, the writer of this opinion believed that the argument made by appellants in the instant case was sounder (cf. Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St., 641, 22 N. E. [2d], 195,123 A. L. R., 761, and see 42 American Jurisprudence 18, Section 18) and would lead to less technical barriers in the path toward justice (see Gravier v. Gluth, Exr., 163 Ohio St., 232, 126 N. E. [2d], 332) than the concept adopted by this court as the basis for its decision in that case. However, since the other six members of this court disagreed with that argument and since the concept which they favored did not appear to be clearly unreasonable, the writer of this opinion, for the sake of unanimity, concurred in the Bynner v. Jones opinion and decision. I believe that the desirability of having some stability in the law as announced by this court militates against overruling the unanimous decision of this court in Bynner v. Jones, supra (154 Ohio St., 184), and the reasons unanimously advanced in the opinion “by the court” for that decision.

In the instant case, Hopkins as an individual was made a party and served with process within the statutory period specified for bringing a will contest proceeding. However, he as an individual is a separate legal entity from Hopkins as administrator; and Hopkins as administrator was not thereby either made a party or summoned. Thus, unless this court abandons the reasoning which it advanced in support of its decision in Bynner v. Jones, supra (154 Ohio St., 184), and adopts the arguments of the appellants, which it rejected when that decision was rendered, it does not seem to me that it can with any logic do other than affirm the decision of the Court of Appeals in the instant case.

Stewaht, J.,

dissenting. It seems to me that the present case is distinguishable from the cases of Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, and Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687. In each of those cases the executor occupied a dual capacity. He was both an heir and legatee as well as executor.

The third paragraph of the syllabus in the Peters case reads as follows:

“Under the provisions of 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 an action to contest a will. ’ ’

Paragraph four of the syllabus reads as follows:

“Under those provisions it is mandatory and jurisdictional that the executor be made a party to such action. ’ ’

This court held in each of those cases that the petition to contest the will was fatally defective for the reason that the executor was sued only in his individual capacity, and that under the statute he must be sued both as an heir and as an executor.

However, in the present case the administrator was not an heir, devisee or legatee, his only capacity in reference to the will was as administrator, and in the body of the petition, although not in the caption, he is named as such.

When he was served individually he could only have been a party as an administrator. Therefore, it seems logical that he was sued as such, and under such circumstances an amendment to the caption should have been allowed.

I am of opinion that the Peters and Bynner eases went to the extreme limit in the application of the statute, and that the application should not be extended beyond that limit. To extend it in the present case seems to me to be an unjustifiable technicality resulting in an unnecessary barrier in the path toward justice.

Hart and Zimmerman, JJ., concur in the foregoing dissenting opinion.  