MR. JUSTICE BRYANT
delivered the opinion of the court:
This is an appeal from a decree of the Circuit Court of Cook County entered on March 12, 1962 sustaining the motion of defendants to dismiss a will contest suit on the ground that necessary parties had been omitted as parties defendants.
The plaintiffs, Malinda Krunfus and Eleanor Schroeder, daughters of the decedent, Herman Winkelhake, brought this suit one day short of nine months after the date of admission to probate of the will of their father, to set aside the will on the ground of undue influence. On February 13,1962 tbe defendants, Alvina Winkelbake, Louis Winkelbake and Herman Winkelbake, Jr., filed a motion for summary judgment on the grounds that necessary parties had not been joined. These omitted parties were the ten living children of Herman Winkelhake, Jr., Louis Winkelhake, Malinda Krunfus and Eleanor Schroeder, and also possible unborn beneficiaries. All these' omitted parties were contingent heirs whose legacies or devises depended upon the death of their respective parents prior to the death of their grandmother.
The plaintiffs suggested to the court that the interests of all of the omitted parties were protected by the doctrine of virtual representation, and that therefore they need not be joined as defendants. They also asked to amend their complaint to add the omitted parties as parties defendants. The lower court denied the motion of plaintiffs to amend their complaint and dismissed the suit for lack of jurisdiction over the parties.
Section 91 of the Probate Act (Ill Rev Stats c 3, § 91) states: “The executor under the will or administrator with the will annexed and all heirs, legatees, and devisees of the testator shall be made parties to the suit.” 6 James, Illinois Probate Law and Practice, § 1603, p 581, states: “The executor or administrator with the will annexed and all heirs, legatees, and devisees of the testator are necessary parties.” (Emphasis supplied.)
No provision comparable to Section 91 appeared in Section 7 of the old Wills Act or in any other prior legislation defining the parties who must be joined in a will contest suit. The doctrine of virtual representation of living parties is a general equitable principle which clearly applied under the old Wills Act (Longworth v. Duff, 297 Ill 479, 484, 130 NE 690; Mortimore v. Bashore, 317 Ill 535, 540, 148 NE 317; Weberpals v. Jenny, 300 Ill 145, 155, 133 NE 62). The question of adequate representation was left to the discretion of the court and the court often joined omitted parties upon its own motion.
In 3 James, Illinois Probate Law and Practice, § 90.5, p 119, the author states with reference to Section 90 of the Probate Act (Ill Rev Stats c 3, § 90):
“When a bill is filed to contest a will the jurisdiction invoked is not the general equity powers of the court, but the special statutory jurisdiction, and so far as the scope or extent of the jurisdiction extends this is to be determined by the same rules that would apply if the jurisdiction was conferred upon some tribunal created to exercise this special jurisdiction and no other.”
See, O’Brien v. Bonfield, 220 Ill 219, 222, 77 NE 167; Masin v. Bassford, 381 Ill 569, 46 NE2d 366; and McQueen v. Connor, 385 Ill 455, 53 NE2d 435, for statements of similar import. We believe that the above principles apply also to questions of jurisdiction of the parties. The general equity doctrine of virtual representation has been superseded by the clear, simple mandatory formulation of Section 91 by which an attorney may quickly and easily know who is a necessary party in a will contest suit. Where the doctrine of virtual representation was most useful — in cases involving unborn heirs, unknown parties, minors and the insane — the legislature has substituted the requirement of guardians ad litem (see Section 6 of the Chancery Act and Section 232 of the Probate Act).
Section 91 was inserted in the Probate Act to avoid the anomalous results which the widespread use of judicial discretion sometimes attests. It is true that it does codify the old law (3 James, Illinois Probate Law and Practice, § 91, p 137), however, it does not preserve the anomalies. It would certainly be a destruction of the purpose of that section to allow the continuance of the doctrine of virtual representation to parties who appear as legatees or devisees on the face of the will. In this case the omitted parties, although contingent legatees or devisees, were designated as “child or children” in paragraphs five and seven of the will. They are required as necessary parties by Section 91; they may not be represented unless by statutory means.
Plaintiffs next contend that even though the omitted parties be necessary parties it was the duty of the court to admit them upon its own motion or in the alternative to allow plaintiffs to amend their complaint to join the omitted parties as defendants. Section 90 of the Probate Act sets out the jurisdictional requirements for will contests:
“Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. .'. .” (Ill Rev Stats c 3, § 90.)
Section 5 of the Probate Act provides :
“The provisions of the Civil Practice Act and all existing and future amendments and modifications thereof, and the rules now or hereafter adopted pursuant to that Act, shall apply to all proceedings hereunder, except as otherwise provided in this Act. . . .” (Ill Rev Stats c 3, § 5.)
Section 26 of the Civil Practice Act provides:
“No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties. . . .” (Ill Rev Stats c 110, §26.)
Section 46(1) of the Civil Practice Act provides:
“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant changing the cause of action or defense or adding new causes of action or defenses, and in any matter either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.” (Ill Rev Stats cllO, §46(1).)
A proceeding to contest a will has always been regarded as an in rem proceeding in which no judgment could be rendered until all interested parties were before the court. (Stephens v. Collison, 249 Ill 225, 94 NE 664; McMechan v. Yenter, 301 Ill 508, 134 NE 39; McCreery v. Bartholf, 305 Ill 325, 137 NE 242; Bradford v. Andrews, 20 Ohio St 208; 8 ALR2d 135.) Por this reason the general rule that amendments to a petition do not relate back to the date of the filing of the original petition where the statute had run against the new parties did not apply (8 ALR2d 112, 115, 135).
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MR. JUSTICE BRYANT
delivered the opinion of the court:
This is an appeal from a decree of the Circuit Court of Cook County entered on March 12, 1962 sustaining the motion of defendants to dismiss a will contest suit on the ground that necessary parties had been omitted as parties defendants.
The plaintiffs, Malinda Krunfus and Eleanor Schroeder, daughters of the decedent, Herman Winkelhake, brought this suit one day short of nine months after the date of admission to probate of the will of their father, to set aside the will on the ground of undue influence. On February 13,1962 tbe defendants, Alvina Winkelbake, Louis Winkelbake and Herman Winkelbake, Jr., filed a motion for summary judgment on the grounds that necessary parties had not been joined. These omitted parties were the ten living children of Herman Winkelhake, Jr., Louis Winkelhake, Malinda Krunfus and Eleanor Schroeder, and also possible unborn beneficiaries. All these' omitted parties were contingent heirs whose legacies or devises depended upon the death of their respective parents prior to the death of their grandmother.
The plaintiffs suggested to the court that the interests of all of the omitted parties were protected by the doctrine of virtual representation, and that therefore they need not be joined as defendants. They also asked to amend their complaint to add the omitted parties as parties defendants. The lower court denied the motion of plaintiffs to amend their complaint and dismissed the suit for lack of jurisdiction over the parties.
Section 91 of the Probate Act (Ill Rev Stats c 3, § 91) states: “The executor under the will or administrator with the will annexed and all heirs, legatees, and devisees of the testator shall be made parties to the suit.” 6 James, Illinois Probate Law and Practice, § 1603, p 581, states: “The executor or administrator with the will annexed and all heirs, legatees, and devisees of the testator are necessary parties.” (Emphasis supplied.)
No provision comparable to Section 91 appeared in Section 7 of the old Wills Act or in any other prior legislation defining the parties who must be joined in a will contest suit. The doctrine of virtual representation of living parties is a general equitable principle which clearly applied under the old Wills Act (Longworth v. Duff, 297 Ill 479, 484, 130 NE 690; Mortimore v. Bashore, 317 Ill 535, 540, 148 NE 317; Weberpals v. Jenny, 300 Ill 145, 155, 133 NE 62). The question of adequate representation was left to the discretion of the court and the court often joined omitted parties upon its own motion.
In 3 James, Illinois Probate Law and Practice, § 90.5, p 119, the author states with reference to Section 90 of the Probate Act (Ill Rev Stats c 3, § 90):
“When a bill is filed to contest a will the jurisdiction invoked is not the general equity powers of the court, but the special statutory jurisdiction, and so far as the scope or extent of the jurisdiction extends this is to be determined by the same rules that would apply if the jurisdiction was conferred upon some tribunal created to exercise this special jurisdiction and no other.”
See, O’Brien v. Bonfield, 220 Ill 219, 222, 77 NE 167; Masin v. Bassford, 381 Ill 569, 46 NE2d 366; and McQueen v. Connor, 385 Ill 455, 53 NE2d 435, for statements of similar import. We believe that the above principles apply also to questions of jurisdiction of the parties. The general equity doctrine of virtual representation has been superseded by the clear, simple mandatory formulation of Section 91 by which an attorney may quickly and easily know who is a necessary party in a will contest suit. Where the doctrine of virtual representation was most useful — in cases involving unborn heirs, unknown parties, minors and the insane — the legislature has substituted the requirement of guardians ad litem (see Section 6 of the Chancery Act and Section 232 of the Probate Act).
Section 91 was inserted in the Probate Act to avoid the anomalous results which the widespread use of judicial discretion sometimes attests. It is true that it does codify the old law (3 James, Illinois Probate Law and Practice, § 91, p 137), however, it does not preserve the anomalies. It would certainly be a destruction of the purpose of that section to allow the continuance of the doctrine of virtual representation to parties who appear as legatees or devisees on the face of the will. In this case the omitted parties, although contingent legatees or devisees, were designated as “child or children” in paragraphs five and seven of the will. They are required as necessary parties by Section 91; they may not be represented unless by statutory means.
Plaintiffs next contend that even though the omitted parties be necessary parties it was the duty of the court to admit them upon its own motion or in the alternative to allow plaintiffs to amend their complaint to join the omitted parties as defendants. Section 90 of the Probate Act sets out the jurisdictional requirements for will contests:
“Within nine months after the admission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will. .'. .” (Ill Rev Stats c 3, § 90.)
Section 5 of the Probate Act provides :
“The provisions of the Civil Practice Act and all existing and future amendments and modifications thereof, and the rules now or hereafter adopted pursuant to that Act, shall apply to all proceedings hereunder, except as otherwise provided in this Act. . . .” (Ill Rev Stats c 3, § 5.)
Section 26 of the Civil Practice Act provides:
“No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties. . . .” (Ill Rev Stats c 110, §26.)
Section 46(1) of the Civil Practice Act provides:
“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant changing the cause of action or defense or adding new causes of action or defenses, and in any matter either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.” (Ill Rev Stats cllO, §46(1).)
A proceeding to contest a will has always been regarded as an in rem proceeding in which no judgment could be rendered until all interested parties were before the court. (Stephens v. Collison, 249 Ill 225, 94 NE 664; McMechan v. Yenter, 301 Ill 508, 134 NE 39; McCreery v. Bartholf, 305 Ill 325, 137 NE 242; Bradford v. Andrews, 20 Ohio St 208; 8 ALR2d 135.) Por this reason the general rule that amendments to a petition do not relate back to the date of the filing of the original petition where the statute had run against the new parties did not apply (8 ALR2d 112, 115, 135). In fact, the courts, upon their own motion, admitted omitted parties where necessary. (McCreery v. Bartholf, 305 Ill 325, 137 NE 242; McMechan v. Yenter, 301 Ill 508, 134 NE 39.)
Regardless of whether we consider a will contest suit a proceeding in rem or not, it is clear that no effective judgment can be rendered in the absence of necessary parties. Although the courts under the old Probate Acts joined parties on their own motion we believe that the joinder of defendants in this case should be determined by Section 46(1) of the Civil Practice Act. Section 46(1) is a carefully written provision which was enacted to avoid the old “relation back” distinctions and to provide liberal means whereby parties who met its requirements would secure their day in court.
The defendants have urged, in reliance upon Strachan v. Nisbet, 202 F2d 216, that since Section 90 of the Probate Act is a statute conferring jurisdiction and not a statute of limitation (Sinnet v. Bowman, 151 Ill 146, 37 NE 885; O’Brien v. Bonfield, 220 Ill 219, 77 NE 167), there can be no addition of parties, either of plaintiffs or of defendants, after the nine-month jurisdictional period has passed. The special jurisdiction of the court in a will contest case under Section 90 establishes an absolute time period during which a suit must be filed and lifts the proceeding out of the general rules of equity and subjects it to those special statutory provisions enacted to govern it. These special statutory provisions include the provisions of the Civil Practice Act as well as the provisions of the Probate Act. The Supreme Court in Fleshner v. Copeland, 13 Ill2d 72, 77, 147 NE2d 329 in rejecting the reasoning of the Strachan case, recognized that Section 46 of the Civil Practice Act, which on its face purports to govern all “relation back” situations, applied to this situation and “to hold .otherwise would frustrate the act’s liberal purpose and cause a substantial miscarriage of justice.”
To hold that Section 90 of the Probate Act does not permit the addition of necessary parties defendant after the original nine-month jurisdictional period had passed would cause a direct conflict with the provisions of Section 46 and the mandate of Section 26 of the Civil Practice Act which by Section 5 of the Probate Act are made expressly applicable to this situation.
Tbe defendants have further urged that if the Civil Practice Act applies the plaintiffs must meet the provisions of Section 46(4). They point out that, although the suit was filed within the nine-month jurisdictional period required by Section 90 of the Probate Act; provisions 46(4)(c) and (d) have not been met because service of process was not made upon any defendant until after the nine-month period had run. Rather than belabor the point, it is evident from the joint committee comments (SHA, c 110, § 46, p 610) that Section 46(4) was enacted to cure the rule of Fitzpatrick v. Pitcairn, 371 Ill 203, 20 NE2d 280 in which case an action against a proper party defendant had been held barred by limitations even though that defendant through its agent had been served with summons. Section 46(1) is very general on its face and applies to this situation where no limitation has run against the necessary defendants rather than 46(4) which was enacted to apply to situations where the statute had run against omitted defendants.
When a suit to contest a will is filed by an appropriate party within the nine-month absolute jurisdictional limit required by Section 90, whether or not all necessary parties defendant have formally been brought into the suit before the nine-month period has run, that absolute jurisdictional period is met. There is no question here nor may our remarks here be taken to apply to any case involving the tolling of a statute of limitations as to necessary or proper parties who were not parties when the statute conferring jurisdiction or limiting the cause of action had expired as to those parties. When a suit to contest a will is filed by the appropriate parties within the proper time — at that time — the interests of all parties defendant taking under the will become jeopardized and no necessary party defendant taking under the will may thereafter rely upon the nine-month limitation. We suggest that this was the rule prior to the passage of our present Probate and Civil Practice Acts. We hold that omitted necessary parties defendant should be admitted by amendment rather than by motion of the court as was formerly done because there does not appear to be statutory authority for the latter procedure under the present Civil Practice Act. The citing of this case should be limited to cases involving will contests.
For the reasons mentioned above we believe that the decree should be reversed and that plaintiffs should be allowed to amend their complaint to bring in the omitted necessary parties so that the case may proceed upon the merits. The decree is reversed and the cause is remanded with directions for further proceedings.
Decree reversed and cause remanded with directions.
FRIEND, J., concurs.