Appeal from the Circuit Court of Cook County; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Decree reversed and
cause remanded with directions.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied and opinion modified November 22, 1963.
This is an appeal from a decree of the Circuit Court of Cook County entered on March 12, 1962 sustaining the motion of defendants to dismiss a will contest suit on the ground that necessary parties had been omitted as parties defendants.
The plaintiffs, Malinda Krunfus and Eleanor Schroeder, daughters of the decedent, Herman Winkelhake, brought this suit one day short of nine months after the date of admission to probate of the will of their father, to set aside the will on the ground of undue influence. On February 13, 1962 the defendants, Alvina Winkelhake, Louis Winkelhake and Herman Winkelhake, Jr., filed a motion for summary judgment on the grounds that necessary parties had not been joined. These omitted parties were the ten living children of Herman Winkelhake, Jr., Louis Winkelhake, Malinda Krunfus and Eleanor Schroeder, and also possible unborn beneficiaries. All these omitted parties were contingent heirs whose legacies or devises depended upon the death of their respective parents prior to the death of their grandmother.
The plaintiffs suggested to the court that the interests of all of the omitted parties were protected by the doctrine of virtual representation, and that therefore they need not be joined as defendants. They also asked to amend their complaint to add the omitted parties as parties defendants. The lower court denied the motion of plaintiffs to amend their complaint and dismissed the suit for lack of jurisdiction over the parties.
Section 91 of the Probate Act (Ill Rev Stats c 3, § 91) states: "The executor under the will or administrator with the will annexed and all heirs, legatees, and devisees of the testator shall be made parties to the suit." 6 James, Illinois Probate Law and Practice, § 1603, p 581, states: "The executor or administrator with the will annexed and all heirs, legatees, and devisees of the testator are necessary parties." (Emphasis supplied.)
No provision comparable to Section 91 appeared in Section 7 of the old Wills Act or in any other prior legislation defining the parties who must be joined in a will contest suit. The doctrine of virtual representation of living parties is a general equitable principle which clearly applied under the old Wills Act (Longworth v. Duff, 297 Ill. 479, 484, 130 N.E. 690; Mortimore v. Bashore, 317 Ill. 535, 540, 148 N.E. 317; Weberpals v. Jenny, 300 Ill. 145, 155, 133 N.E. 62). The question of adequate representation was left to the discretion of the court and the court often joined omitted parties upon its own motion.
In 3 James, Illinois Probate Law and Practice, § 90.5, p 119, the author states with reference to Section 90 of the Probate Act (Ill Rev Stats c 3, § 90):
"When a bill is filed to contest a will the jurisdiction invoked is not the general equity powers of the court, but the special statutory jurisdiction, and so far as the scope or extent of the jurisdiction extends this is to be determined by the same rules that would apply if the jurisdiction was conferred upon some tribunal created to exercise this special jurisdiction and no other."
See, O'Brien v. Bonfield, 220 Ill. 219, 222, 77 N.E. 167; Masin v. Bassford, 381 Ill. 569, 46 N.E.2d 366; and McQueen v. Connor, 385 Ill. 455, 53 N.E.2d 435, for statements of similar import. We believe that the above principles apply also to questions of jurisdiction of the parties. The general equity doctrine of virtual representation has been superseded by the clear, simple mandatory formulation of Section 91 by which an attorney may quickly and easily know who is a necessary party in a will contest suit. Where the doctrine of virtual representation was most useful in cases involving unborn heirs, unknown parties, minors and the insane the legislature has substituted the requirement of guardians ad litem (see Section 6 of the Chancery Act and Section 232 of the Probate Act).
Section 91 was inserted in the Probate Act to avoid the anomalous results which the widespread use of judicial discretion sometimes attests. It is true that it does codify the old law (3 James, Illinois Probate Law and Practice, § 91, p 137), however, it does not preserve the anomalies. It would certainly be a destruction of the purpose of that section to allow the continuance of the doctrine of virtual representation to parties who appear as legatees or devisees on the face of the will. In this case the omitted parties, although contingent legatees or devisees, were designated as "child or children" in paragraphs five and seven of the will. They are required as necessary parties by Section 91; they may not be represented unless by statutory means.
Plaintiffs next contend that even though the omitted parties be necessary parties it was the duty of the court to admit them upon its own motion or in the alternative to allow plaintiffs to amend their complaint to join the omitted parties as defendants. Section 90 of the Probate Act sets out the jurisdictional requirements for will contests:
"Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to ...