specially concurring:
The defendants well say that the principal question raised by this appeal is the effect, in a will contest suit, of failure to join all necessary parties designated in Sec 91 of the Probate Act (whether as plaintiffs or as defendants) within the nine-month jurisdictional period prescribed by Sec 90. The jurisdiction of the court in will contests is invoked by filing a complaint within the statutory period. The plaintiffs in the instant case satisfied the jurisdictional requirement by instituting their will contest within the nine-month contest period. In Stephens v. Collison, 249 Ill 225, 94 NE 664, it was decided that if the jurisdiction is invoked by filing the complaint within the prescribed time the failure to make a necessary party a defendant within this time is not a failure to invoke the jurisdiction within the prescribed time. See also Fleshner v. Copeland, 13 Ill2d 72, 147 NE2d 72 (1958).
Defendants say that Sec 91 of the Probate Act must be read in conjunction with Sec 90 as requiring necessary parties to be joined within nine months after admission of the will to probate as a condition precedent to jurisdiction attaching. In their argument the defendants rely heavily on Strachan v. Nisbet, 202 F2d 216 (1953) an opinion by the 7th Circuit interpreting ánd applying Illinois law in a diversity case. Defendants say that the Probate Act of 1939 departed from the antecedent will contest legislation by (a) diminishing the jurisdictional period for contest from one year to nine months; (b) eliminating the provision in Sec 7 of the Wills Act saving the right of contest to infants and persons non compos mentis for a period of one year after the removal of théir disability and (c) introducing as a condition to invoking the will contest jurisdiction of the court a mandatory requirement that the executor under the will or administrator with the will annexed and all heirs, legatees and devisees be made parties to the suit.
The Strachan case decided that after the expiration of the will contest period no person can be added as a co-plaintiff in a will contest case and is not applicable to the factual situation of the case at bar. The court said that the right to contest the will was lost to the 19 heirs at law not made parties or not joined as parties during the nine-month period mentioned in the statute. Sec 91 of the Probate Act codifies the case law as it previously existed. In Vol 3 of Illinois Probate Law and Practice, p 136, note 54, Professor James states: “When the complaint is filed within apt time, an amendment may be made after the time has elapsed for filing the proceeding, and omitted parties may be added as defendants.” In my opinion the 1939 revision of the Probate Act does not affect the virility of the rule as to admission of additional defendants as announced in Stephens v. Collison.
Plaintiff’s complaint seeks to set aside a will and not to secure a personal judgment against an individual or individuals. The requirement that an interested party file the complaint within nine months is not a statute of limitations but one conferring jurisdiction. Sinnet v. Bowman, 151 Ill 146, 37 NE 885; Lewark v. Dodd, 288 Ill 80, 82, 123 NE 260. After jurisdiction has attached the naming of additional parties defendant is a matter within the sound discretion of the court. The complaint does not pretend to allege a “cause of action against a person” contemplated by Par 4 of Sec 46 of the Civil Practice Act and this paragraph is not applicable to a complaint to set aside a will. The court had the discretionary right to make additional necessary parties defendant under Par 1 of Sec 46. In McCreery v. Bartholf, 305 Ill 325, 137 NE 242, the court said that it was necessary to make parties all persons who had any substantial, legal or beneficial interest in the will and who would be materially affected by a decree entered in a suit to contest the will. In McCreery, the court said that the appellant was a necessary party and that “if the original complainant had failed to name him as a defendant, it would have been the duty of the court, as soon as it learned of the situation to make him a party.” I agree that the opinion and separate concurring opinion should not be cited in support of proposed amendments allowing the addition of defendants against whom the statute of limitations has run in common law and other causes of action.