Clark v. Yates ( 1829 )

Judge Robertson

delivered the opinion of the Court.

The defendants in error filed their hill in chancery, as heirs of William Clark deceased, agaist the plaintiffs in error, also, heirs of said Clark, to set aside a will, purporting to be the last testament of their ancestor, and which had been admitted to record in the county court of Adair.

Pascal D. Craddock, who was qualified as the executorofthe will, was prayed tobe made a defendant; but process was never served on him, and he did not enter his appearance.

The court decreed in favor of the defendants in error, and declared the will invalid, for want of a disposing mind by the testator.

The decree was premature and irregular. The executor was a necessary party. He was not made a party, and consequently the decree, for this cause is erroneous.

Crittenden, for plaintiff; Monroe, for defendant.

Wherefore the decree is reversed, and the cause remanded, with instructions for such further proceedings; as may be necessary to prepare the case for final and valid decree, and as the executor has appeared in this court, it will be unnecessary to serve him with process.