Neal v. Robertson

Cockrill, C. J. According to the allegations of the appellee’s petition for the distribution of the estate of her deceased husband, John B. Robertson, his infant daughter Ethel is the only party interested adversely to her claim of right. Ethel was not, however, made a party to the petition, nor was notice given to her of the application for distribution. But the statute provides that no order of distribution shall be made, until notice has been given, to the other parties entitled to distributive shares. Mansf. Dig., sec. 151. It is manifest that the controversy could not be determined in the widow’s favor without material prejudice to the rights of Ethel. She was therefore a necessary party. As that fact was disclosed by the pleadings in the cause, the court should have ordered her to be brought in, before proceeding to adjudicate her rights. Mansf. Dig., sec. 4945. It is futile to enter upon a discussion of - what the relative rights of the widow and heir are when the heir is not a party. As to her any order made would be coram non judice, and the judgment would settle nothing. The judgment must be vacated, and the cause will be remanded to the circuit court, with instructions to remand it to the probate court, where it originated, for further proceedings. It is so ordered.