Opinion
No. 18,458.
Filed November 4, 1953. Motion to Reinstate appeal denied December 4, 1953.
APPEAL — Parties — Executrix Appealing — No Interest. — Where appellant as executrix, attempted to appeal from judgment construing a will provision of a testator other than her decedent and complaint below did not name heirs, devisees or legatees of her decedent and three children of her decedent were beneficiaries under will, held that executrix, as such, had no right to maintain appeal.
From the Perry Circuit Court, Urdix B. Ewing, Judge.
Appellant, Susie Snider Taylor, as executrix of estate of Clarence Snider, attempted appeal from judgment construing will of Katy Snider.
Appeal dismissed. By the court in banc.
Frank N. Fish, of Evansville, for appellant.
Waldschmidt Waldschmidt, of Cannelton, for appellees.
Appellant has attempted to appeal from a judgment construing the following provision of the will of Katy Snider:
"ITEM II. — I give, devise and bequeath all the rest and residue of my estate then remaining, including my real estate, personal and mixed property of every kind and description of which I shall die seised and possessed, or over which I shall exercise testamentary control at the time of my decease, to my husband, Clarence Snider, to have and to hold forever in fee simple title; provided, that should my said husband precede me in death, or should any of my said property remain at the time of the death of my said husband, then such residuary estate shall go to the Trustees of the First Baptist Church, of Tell City, Indiana, in fee simple title and to have and to hold forever."
In her complaint in the trial court appellant did not name the heirs, devisees or legatees of her decedent. At the trial it was stipulated that three children of her decedent were the beneficiaries under his will. They were never made parties to this action and are in no way bound by the judgment herein. Appellant prosecutes this appeal only as executrix of the estate of her decedent. An examination of the record herein discloses the executrix of Clarence Snider's estate had no interest as such in this estate and no right to maintain this appeal. Stoner, Administratrix v. Gloystein (1923), 193 Ind. 614, 140 N.E. 435; Hetzell v. Morrison et al. (1945), 115 Ind. App. 512, 60 N.E.2d 150; Richcreek v. Richcreek et al. (1946), 116 Ind. App. 422, 64 N.E.2d 308; Flanagan, Wiltrout Hamilton, Indiana Trial and Appellate Practice, Vol. 2, § 2123, Comment 2, p. 7.
Appeal dismissed.
NOTE. — Reported in 115 N.E.2d 124.