Carole L. Fischer v. Emily Rettger, 83-LW-0273

• Decision Date: 06 October 1983
• Docket Number: 83-LW-0273,46086
• Parties: CAROLE L. FISCHER, Plaintiff-Appellee v. EMILY RETTGER, ET AL., Defendants-Appellants
• Court: Ohio Court of Appeals

CAROLE L. FISCHER, Plaintiff-Appellee v. EMILY RETTGER, ET AL., Defendants-Appellants

No. 46086.

83-LW-0273 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 6, 1983

Civil appeal from Common Pleas Court Case No. 993,750.

For Plaintiff-Appellee: Joseph P. Tulley, Esq., 38052 Euclid Avenue, Willoughby, Ohio 44094.

For Defendants-Appellants: Sherman S. Hollander, Esq., 1620 Standard Building, Cleveland, Ohio 44113, Glenn E Billington, Esq., 1126 Terminal Tower, Cleveland, Ohio 44113.

JOURNAL ENTRY and OPINION

STILLMAN J.

Defendants appeal from a trial court judgment declaring that plaintiff was the true owner of an undivided one-fourth interest in two parcels of property subject to a charge in favor of defendants for $11,066.02 and ordering that a trust be impressed upon the title to those parcels. Defendants claim that the trial court erred in its judgment since (1) plaintiff signed a waiver of notice of probate and failed to timely contest her mother's will, (2) plaintiff failed to present a claim to the executrix of her mother's will (3) the calculation of funds to be offset against plaintiff's award is incorrect, (4) defendants had transferred one of the subject parcels to a third party who should have been made a party to this action. We agree only that the court's calculations are incorrect so we affirm the trial court's judgment subject to certain mathematical recalculations.

Plaintiff is the only child of one Isabelle Rettger. Shortly before her death, Mrs. Rettger signed a will. According to that will, Mrs. Rettger's entire estate passed to her second husband, Frederick Rettger, to the exclusion of plaintiff. Frederick Rettger died in 1978, and by his will, his estate (including that which he inherited from his wife) passed to defendants.

Plaintiff filed a complaint in the trial court alleging that her mother's will was fraudulent and should not have been admitted to probate since it was not executed according to law. Defendant's motion to dismiss the complaint was granted. On plaintiff's appeal, this court reversed that ruling and remanded the case to the trial court. After a trial on the merits, the trial court declared that plaintiff had an undivided one-fourth interest in two parcels of property formerly owned by her mother subject to a charge in favor of defendants for $11,066.02 and ordering that a trust be imposed upon the title to those parcels.

Defendant's first assignment of error alleges:

"THE COURT ERRED IN DETERMINING THAT A COMPETENT ADULT WHO IS AWARE OF THE DEATH AND ADMINISTRATION IN AN OHIO PROBATE COURT OF THE ESTATE OF HER MOTHER, AND WHO SIGNED A WAIVER OF NOTICE OF PROBATE OF THE WILL OF HER MOTHER, BUT WHO FAILED TO CONTEST THE WILL IN A TIMELY MANNER, WAS ENTITLED TO INHERIT FROM THE ESTATE OF HER MOTHER AS IF THE MOTHER HAD DIED INTESTATE."

Defendants contend here, as in their motion to dismiss plaintiff's complaint, that plaintiff was required by R.C. 2107.76 to contest her mother's will within four months after the will was admitted to probate and that her failure to do so precludes her from the relief granted by the trial court.

In Fischer v. Rettger (May 1, 1980), Cuyahoga App. No. 40958, unreported, this court stated at 5-6:

"A review of appellant's complaint filed below does not reveal a prayer, direct or otherwise, asking the lower court to set aside any prior order of the probate court which admitted Isabelle Rettger's will to probate. Fairly construed, appellant's complaint merely sought a declaration of her rights to and the imposition of a trust upon certain property which had passed to appellees, indirectly, from Isabelle Rettger. In no way did it seek to procure the aid of the court below in collaterally interfering with the administration of matters exclusively within the realm of probate court jurisdiction.

"Further, it has long been held in this state that suits which seek to enforce equitable rights in property, even when they have arisen as the result of fraud in the probate of a will, may be independently maintained despite the existence of and limitations within the will contest statute." (Citations omitted.)

Defendants' first contention is not well taken.

Defendants' second assignment of error claims:

"THE COURT ERRED IN DETERMINING THAT THE PLAINTIFF WAS ENTITLED TO CLAIM AN INTEREST BY REASON OF FRAUD IN LAND INHERITED BY A DECEDENT THROUGH AN ACTION IN COMMON PLEAS COURT AGAINST THE HEIRS OF THE DECEDENT WHEN THE PLAINTIFF WAS AWARE OF THE DEATH AND ADMINISTRATION OF THE ESTATE OF SAID DECEDENT AND FAILED TO PRESENT A CLAIM TO THE EXECUTRIX THEREIN."

Defendants argue that plaintiff did not timely file her claim with her mother's executrix pursuant to R.C. 2117.06 and 2117.07.®*¯ We disagree. First, defendants did not allege the untimeliness of plaintiff's complaint in their answer. Their failure to do so constitutes a waiver of that defense or objection pursuant to Civ. R. 12(H).

Footnote * Those sections provide in pertinent part:

R.C. 2117.06:

"All creditors having claims against an estate shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within three months after the date of the appointment of the executor or administrator."

R.C. 2117.07(C):

"A claim that is not presented within four months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees, and distributees, and no payment shall be made nor any action maintained on the claim, except as otherwise provided in sections 2117.37 to 2117.42 of the Revised Code, with reference to contingent claims."

Furthermore, plaintiff asserted a cause of action for fraud. R.C. 2305.09 provides that an action for fraud must be brought with four years after the cause of action accrues. A fraud action accrues when the fraud is discovered. Baldridge v. Toombs (1962), 118 Ohio App. 229; Seeds v. Seeds (1927), 116 Ohio St. 144. Plaintiff asser that she did not discover the fraud until after her stepfather's death in 1978. Therefore, her complaint, filed in 1979, was within the four-year statutory period.

Defendants' second assignment of error is overruled.

Defendants' third assignment of error alleges:

"THE COURT ERRED IN CHARGING AGAINST THE INTEREST IN REAL ESTATE INHERITED BY A SURVIVING SPOUSE HALF OF THE AMOUNTS WHICH SHOULD HAVE BEEN CREDITED TO THE SURVIVING SPOUSE IN THE ESTATE OF HIS DECEASED SPOUSE."

The trial court determined that the net charge against the subject...