Draher v. Walters

• Decision Date: 26 June 1935
• Docket Number: 25099.
• Parties: DRAHER v. WALTERS et al.
• Court: Ohio Supreme Court

196 N.E. 884

130 Ohio St. 92

DRAHER v. WALTERS et al.

No. 25099.

Supreme Court of Ohio.

June 26, 1935

Error to Court of Appeals, Stark County.

Suit for contest of will by Florence Draher against Walters and others, wherein defendants moved for dismissal of plaintiff's petition. Judgment dismissing the petition was affirmed by the Court of Appeals, and case was presented to the Supreme Court on allowance of motion to certify.-[Editorial Statement.]

Judgment reversed.

Plaintiff in error, Florence Draher, instituted suit in the court of common pleas of Stark county, on April 26, 1933, to contest the validity of the last will and testament of her father William Archibald, deceased, which was admitted to probate on January 21, 1933. Plaintiff in error named as defendants in said action all the legatees, devisees, and the executor of said last will and testament. A precipe was attached to said petition requesting service upon all parties defendant. The clerk issued summons for only one of the defendants, Josey Palm, a legatee-devisee under said will, who was served on May 5, 1933, and return thereof was made on May 8, 1933. For some unknown reason, the clerk failed to issue summons for the executor and for the remaining defendants. Said failure was discovered by plaintiff on October 25, 1933, and she immediately thereupon filed a precipe for alias service of summons upon such other defendants, pursuant to which summons issued, and all remaining defendants were duly served with process on October 26, 1933. Approximately five months thereafter, on March 20, 1934, defendants were given leave to file a motion instanter, which motion, the record shows, was not filed instanter, but was filed on March 30, 1934.

Defendants moved for the dismissal of plaintiff's petition on the ground that service was made on only one of the defendants within the time set by statute for the commencement of an action to contest a will. The motion was sustained and the petition was dismissed. Error was prosecuted to the Court of Appeals, where the judgment of the court of common pleas was affirmed. The matter is now before this court on the allowance of a motion to certify.

Syllabus by the Court .

Service of summons upon one of the legatee-devisee defendants, in an action to contest the validity of a will is to be deemed commencement of the action as to each of the defendants of that class and also the executor. Actual service of summons can thereafter be made upon the remainder of the defendants of that class.

STEPHENSON, MATTHIAS, and ZIMMERMAN, JJ., dissenting.

Charles S. Weintraub, of Canton, for plaintiff in error.

Milton C. Moore, of Alliance, and Aungst, Snyder & Walsh, of Canton, for defendants in error.

DAY Judge.

Defendants in error concede that all necessary parties were named in the petition as provided by section 12080, General Code. They contend, however, that defendant Josey Palm, devisee-legatee under the will, is not united in interest with all her codefendants, and that consequently service of summons upon her does not constitute commencement of the action against her is not united in interest with all her codefendants,

Now what constitutes commencement of an action to contest a will within the meaning of section 11230, General Code?

Section 10504-32, General Code, provides: ‘ If within six months after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding, saving, however, to persons under any legal disability, the like period after such disability is removed, but the rights so saved shall not be effective as against a bona fide purchaser for value, a fiduciary who has acted in good faith, or a person delivering or transferring property under authority of a will to a duly appointed fiduciary or to any other person.’

Section 11230, General Code, provides: ‘ An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on codefendant who is a joint contractor, or otherwise united in interest with him. * * *’

In construing section 11230, General Code, every reasonable presumption will be indulged and every doubt will be resolved in favor of affording, rather than denying, a plaintiff his day in court. The key words in that statute are ‘ united in interest.’ Wherever possible, these will be construed liberally in order that the right to sue may be maintained rather than denied.

Accordingly, we hold that, in an action to contest the validity of a will, the legatee-devisee defendants are so united in interest as to render service of summons upon any one of them within the time set by statute sufficient to constitute commencement of the action against all of them, thereby giving the court jurisdiction over the entire estate, for, when the court obtains jurisdiction over an estate, it does so in its entirety and not in fractions. Bradford v. Andrews, 20 Ohio St. 208, 5 Am.Rep. 645. In such case the court acquires jurisdiction not only over the rem but also over all those who have, or claim to have, an interest therein, and the right of action is saved as to all who are ultimately served, including the executor, notwithstanding the fact that the rest of such defendants are served after the expiration of the period of limitation.

‘ Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.’ Bradford v. Andrews, supra, first paragraph of the syllabus.

‘ If any person interested appears, and in good faith files his petition for a contest, the statute entitles him to a trial, and the verdict of a jury, touching the validity of the will; and that verdict will be binding upon all parties who may be before the court as such, at the time of its rendition. The interest of the parties is joint and inseparable. Substantially this is a proceeding in rem, and the court cannot take jurisdiction of the subject-matter by fractions. The will is indivisible, and the verdict of the jury either establishes it as a whole, or wholly sets it aside. To save the right of action therefore to one is necessarily to save it to all. The case belongs to that class of actions where the law is compelled either to hold the rights of all parties in interest to be saved, or all to be barred. And it seems now to be quite well settled law, that the preference will in such cases be given to the right of action, and not to the right of limitation. The right to sue is a favored right, and is guaranteed by constitutional provision, while the right of limitation generally meets with more or less disfavor.’ Bradford v. Andrews, supra.

Service of summons upon one of the legatee-devisee defendants is to be deemed commencement of the action as to each of the defendants of that class, and also the executor. Actual service can thereafter be made upon the remainder of the defendants.

This principle is not contrary to that laid down in the case of McCord v. McCord, 104 Ohio St. 274, 135...