Citizens Bank & Trust Co. v. Dustowe

Connor, J. This is a civil action, to have the will of Charles McDonald construed. The validity of the will is not in issue. It has been duly probated and recorded. It has not been vacated on appeal, nor declared void by a competent tribunal. No caveat has been entered to its probate. The executor named therein has duly qualified and is now engaged in the performance of the duties of the office. The record and probate is therefore conclusive as to the validity of the will. C. S., 4145 and 4161. Appellants, Eobert E. McDonald, Jr., and T. Lawrence McDonald, sons of Eobert McDonald, a deceased brother of Charles McDonald, and heirs at law of the testator, are expressly excluded from any interest in or to the estate of Charles McDonald by the provisions of the will. The entire estate, real and personal, is devised and bequeathed, and there is no residuary clause in the will. By no possible construction of the will, as same appears in the record, could they have any interest, present or future, vested or contingent, under the will or as heirs at law in or to the estate of Charles McDonald. They, therefore, have no interest in the subject-matter of the action, the construction of the will, in order to determine the rights, interests and estates of the devisees and legatees named therein, with respect to the property devised and bequeathed to them. Appellants have no rights or interests to be protected or to be prejudiced by any order, decree or judgment that may be made or rendered in the action. They are neither necessary nor proper parties to the action. C. S., 446. In McKethan v. Ray, 71 N. C., 165, which was an action to construe a will, this Court reversed the judgment below and remanded the action to the end that the heirs at law and residuary legatees might be made *780 parties, the reason given being- that “in certain aspects of the matter involved in the construction of the will the heirs at law and residuary-devisees have an interest and of course would not be concluded by a judgment in this case as now constituted.” In no aspect of the matter involved in the instant case have these appellants any interest in this action.. They were inadvertently made parties plaintiff, and upon this fact appearing to the court the action was properly dismissed as to them. This, however, was the only relief to which they were entitled. They have no interests which are or can be affected, adversely or otherwise, by the judgment heretofore rendered by Judge Webb in the action, and therefore there was no error in refusing to set aside and vacate said judgment and to dismiss the action. “When there is merely a sur-plusage of parties, it is not ground for dismissal, as it cannot prejudice the cause of action, and at most the unnecessary party could be dismissed, on his own motion, with his costs.” Ingram v. Corbit, 177 N. C., 321. It was proper for the court to admit and consider evidence from which it could be ascertained whether or not appellants had any interests in the subject-matter of the action which were or could be prejudiced by the judgment of Judge Webb. They were asking not only that their names be stricken from the summons as parties to the action, but also that the judgment be set aside and the action dismissed. The insistence of appellants that there was error in admitting the record as evidence upon the hearing of their motion is based upon a misconception of the purpose for which this evidence was offered and considered. The court was not concerned with the merits of the controversy between the 'real parties in interest, but solely in determining whether or not the judgment affected any rights of plaintiffs, and upon it appearing that the judgment did not affect any such rights the court properly refused to set aside or vacate such judgment and to dismiss the action, except as to them. The parties whose rights are determined by said judgment have neither excepted to nor appealed therefrom. They are content with the judgment. Appellant, Mrs. Martha Gr. M. Nelson, has an interest in the subject-matter of the action, and is therefore a proper and necessary party. Summons has been duly served upon her, and she is now a duly constituted defendant. The action, therefore, was not dismissed as to her. She did not agree to the statement of facts presented to the court, nor did she consent to the signing of the judgment after the expiration of the term and out of the district. The judgment and Statement of agreed facts were therefore properly set aside and vacated as to her. The judgment has no validity as to her. She may be heard now, before any order, decree or judgment affecting her rights is made or rendered. *781 She has no interest, however, in said judgment in so far as it affects the rights of other parties to the action. Upon the facts as they now appear, her legacy of $2,000 is not prejudiced by the judgment. It does not appear that she has any rights under the will, or otherwise, in the estate of Charles, McDonald, except as • to this legacy. She is not concluded, however, by the judgment, and may proceed in the action as she may be advised. Wh are not inadvertent to the brief filed herein by attorneys for Ed. McDonald and O. D. McDonald, plaintiffs, in which they say that they do not resist the motion of appellants “to have the entire judgment and agreed statement of facts vacated and set aside.” Having agreed to the statement of facts, and having filed no exception to the judgment, they are barred by its terms. They would, doubtless, like to have another day in court, feeling assured that they could fare no worse, and might fare better, upon another hearing. "We see nothing in the record, to justify this assurance. The assignments of error are not sustained. There is No error.