Murphy v. Housman

NOURSE, P. J. All the named plaintiffs appeal from a judgment striking from the files and dismissing amended contest of will and petition for order revoking probate of will, and three of the named plaintiffs appeal from a judgment denying their motion for an order permitting them to file an amended contest of the will, and a petition for an order revoking probate. Both appeals are presented on a single bill of exceptions.

Alma E. Black died testate on July 23, 1939. Nathan S. Housman, chief legatee and executor, offered her last will for probate on August 4,1939. Katherine Black and Frances Goepfert, surviving sisters of decedent’s husband, filed a contest before probate, but a compromise was effected with Housman whereby he renounced his right to serve as executor, and assigned his interest as a legatee. Katherine Black was appointed as administratrix when the will was admitted to probate on February 7, 1940. A purported contest of the will and a petition for an order revoking probate was filed by the plaintiffs on July 26, 1940. An amendment to tin's purported contest was filed by them on August 19, 1940. The order striking these two documents from the files is the subject of the first appeal. The second appeal relates to an order denying the application of three only of the named plaintiffs for leave to file a second amended contest and petition for the revocation of ^he probate of the will. This application, made November 19, 1940, was denied March 21, 1941.

The appellants concede that the first pleading by which they sought to contest the will was faulty, but they contend that the question went only to the running of the statute [798]of limitations. If this were true it would end the controversy. But the pleading was more than faulty. It did not state any cause of action either as a contest of the will, or as a petition to revoke probate. The question in these proceedings is one going directly to the jurisdiction of the probate court to entertain a purported contest of a will which does not comply with statutory restrictions.

We will first consider the document as one to contest the will. It alleged that the. only living relatives of the decedent were the plaintiffs who were described as three first cousins of the deceased, six first cousins once removed, and four others whose relationship could not be determined. Following the allegations relating to heirship the petition pleads an assignment to Housman executed by decedent about one month before her death, an agreement by Housman to give some unnamed persons some of this stock, and that Housman had kept the decedent under his domination for a period of ten years through the use of narcotics. It then pleaded that the court was without jurisdiction to admit the will to probate because “no proof was made or offered that said decedent did or did not leave her surviving heirs at law, and no proof was made or offered that notice of the time and place of the hearing of the petition for the probate of said will was given to the heirs of the testator.”