dissenting.
I respectfully dissent.
It is undisputed that Pierson failed to comply with IC '29-1-7-17 which requires that “[t]he executor and all other persons beneficially interested in the will shall be made parties to the action.” It is similarly undisputed, however, that Pierson served a copy of the will contest and petition for probate of lost or destroyed will upon the executor Citizens First State Bank, together with summons. A copy of both the will contest and summons also were served upon counsel for the personal representative. This service was accomplished within the statutorily-allowed five month period. Thus, within the allowed period, the executor had notice of the institution of the action to contest the will.
The majority distinguishes this action from In Re the Estate of Frank R. Smith, 239 Ind. 518, 159 N.E.2d 128 (1959), in which our supreme court allowed an amended will contest to be filed after the statutory time period to add an omitted defendant because in Smith the contesting party had properly named at least one defendant in the complaint. I believe that serving a copy of the will contest and summons upon the executor within the statutorily-allowed time served the same purpose. For such reason, I respectfully dissent.