Mackey v. Mackey , 71 N.J. Eq. 686 ( 1906 )

Garrison, Y. C.

(after stating facts).

It seems too plain to require discussion that if John H. Mackey did leave a will, executed in compliance with the law, and did constitute therein a trustee with full power of sale, and such-trustee now holds the title to the land formerly owned by John H. Mackey, as in said plea set up, such trustee is a necessary party to this suit.

The complainants, however, insist that the plea does not show that the will has been admitted to probate, and therefore they claim that the plea is not a complete defence to the bill, and should not be sustained. Their contention is that the probate of a will is the judicial determination of its character and validity as such, and that until it has been duly admitted to probate it is wholly ineffectual as an instrument of title. And this undoubtedly is the general rule. 23 Am. & Eng. Encycl. L. {2d ed.) 111. But it is also true that an unprobated will is capable of conveying an interest in property devised, and that if a conveyance he made under a power in the will before probate, subsequent probate will validate the conveyance. 23 Am. & Eng. Encycl. L. {2d ed.) US; 1 Jarm. Wills {6th ed.) *662. The latter authority going to the extent of saying: "Executors derive their title under the will, and not by virtue of the probate, which is merely the proof of their title.”

A plea is a proper method to take advantage of a want of parties. 1 Dan. Oh. PI. & Pr. {6lh Am. ed.) *287. And at p. 638 he says:

“If it can be shown to the court that, with the parties already before it, the suit has been so framed as to be insufficient to answer the purpose of complete justice, a plea suggesting the facts necessary to make such a case would prevail.”

This plea certainly does suggest facts showing that all of the necessary parties are not before the court in this suit.

By setting down the case for hearing on bill and plea, the complainant on this hearing is bound by all of the facts pleaded. It is pleaded as a fact that there is a will duly executed, and therefore capable of being admitted to probate; that this will vests title in a named trustee, and that such named trustee now holds title under the will, and that such trustee is not a party to this suit.

I am of opinion that, under these circumstances, the plea is good, aud must be sustained.