Busse v. Schaeffer

Bishop, J. 2. New trial: review on apWe do not hesitate to review an order granting a new trial, where, as in this case, the record makes disclosure of the situation as fully in all re- . spects as, it was presented to the trial court. Turley v. Griffin, 106 Iowa, 161. . 1. Wills: action to set -aside bate-Waiving the matter of form in which the same was presented to the trial court, the only question in the case is this, Was there a vital defect of parties defendant in the sense that a new trial was made necessary on account thereof ? We think this question must be answered in the negative. The statute provides that “ the court may determine any controversy het-ween parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy between the parties before the court can not be made without the presence of [322] other parties, it must order them to- be brought in.” Code, section 3466. Now, clearly enough, the grandson, Carl Busse, Jr., was a proper party to the action. So far there is room for neither definition or argument. Giving to the grandson the character of a proper party, the plaintiff might well have named him as a defendant. He was not bound to do so, however, and of his failure the defendants could not be heard to complain. If, in their view, the presence of the grandson as a proper party was desirable for any reason, it was for them to bring him in. Now, for the purposes of the case, the statute sufficiently defines who- is a necessary party, and, having the reading thereof before us, we may confinp our further inquiry to- the question in the- case, restated, as it arises, upon consideration of the statute. It will be observed that no question is made in the record respecting the original will or the first codicil. As to the second^ codicil, the sole parties appearing to have any interest are the plaintiff, his brother and sisters, named'as defendants, and Carl B-'usse, Jr., son of plaintiff. As it seems to us, a moment’s consideration of the provisions- of the codicil is sufficient to malee it apparent that in respect of the several interests of the parties, antagonistically considered, the plaintiff, as now appearing, is arrayed against his brother and sisters, now defendants, on the one hand, and against his son, Carl Busse, Jr., on the other hand. As between Carl Busse Jr., and the devisees made defendants, there is neither antagonism or community of interest. Nor is there antagonism a's between the interests of Carl Busse, Jr., and those of the executor representing the estate generally. The sum_ of $1,000, the subject-matter of the devise, inasmuch as it is sought to be carved out of the share given to Carl Busse, Sr., by the provisions- of the original will, must go either to him under the will or to his son under the codicil. It is not a matter of legal moment to any other person which one of the two shall receive it. What, then, is the situation? The defendants ought [323] not to be heard in complaint, because their interests could be in no wise affected by the supposed defect of parties. As to them, the sole question was whether the codicil making a devise to them had vitality as a testamentary -instrument. The executor ought not to be heard in complaint, because the interests of the estate generally were in no- wise involved in the controversy. It was for. him only to pay the prescribed amounts ‘to the one if the codicil was overthrown, and to the others, as designated, if the codicil was sustained. Moreover, the effort to overthrow the codicil, on the one hand, was in no way aided by the absence of Carl Busse, Jr., nor, on the other hand, did his absence in any way interfere with or impede the effort made to sustain the-instrument. The failure on the part of plaintiff to make his son a party defendant, therefore, amounted to no more than a declaration of willingness on his part that payment of $1,000, to be taken out of his share, might be made to his son by the executor, and this in accordance with the provision of the codicil. And it seems clear, on principle and authority, that such should be held to be the legal effect dictated by the situation. According to plainest rules of procedure, plaintiff could have but one action to set aside the codicil, and there could be but one final judgment involving the subject-matter of the issue as presented by him. And it is the doctrine of all the eases that a property right cannot be affected by a judgment to which the holder of the right has not in some way been made a party of record. Moore v. Held, 73 Iowa, 538. As to Carl Busse, Jr., therefore, it would -seem the duty of the executor of the estate, in making distribution thereof, to pay over to him, or for his benefit the sum of $1,000, to be taken from the amount otherwise devised to his father, and as provided for in said second codicil; the balance of -the estate to be distributed according to the provisions of the original will and the first codicil thereto. The question which the case presents is a novel one, [324] in view of tbe peculiar facts. Tbe cases of Palmer v. Blair, 25 Iowa, 230, and Johnson v. Gaylord, 41 Iowa, 362, cited and relied upon by counsel for appellees, are not analogous either as to the fact situation, or tbe question involved. Nor, in the limited search possible for us to make, have we discovered any case of value as an authority in point. On the whole, however, we are satisfied with the conclusion that judgment should have been entered on the- verdict. Accordingly the order appealed from is reversed, and the cause remanded for further proceedings according to law.— Reversed.