Hayes v. Peak

OPINION By MONTGOMERY, J. It was conceded in open court by counsel for plaintiff in error that the executor is a necessary party in the contest of a will, and in fact this is so provided by §12080 GC. Attention is directed to this section of the Code and also to §11230 GC, and to the cases of McCord v McCord, 104 Oh St, 274; Myers, Executor v Hogue, 45 Oh Ap, 331, (15 Abs 174); and Sours v Schuler, 36 Ohio Law Rep., p. 544, (12 Abs 108), all of which authorities were commented upon by counsel, but which taken together we deem conclusive of the present controversy. It is true that the instant case presents the direct opposite of the situation presented in the case of Myers v Hogue, but the fact remains that one appearing in a representative capacity is a different person from that same individual appearing on his own behalf, and the rule as laid down is absolute and does not distinguish between the parties if they be necessary, nor are the decisions based upon the relative importance to a determination of the issues of the several parties interested therein. It follows that the judgment of the Court of Common Pleas will be, and the same is, affirmed. HORNBECK, PJ, and SHERICK, J, concur.