Eugene R. Corron v. Evelyn M. Corron
| Decision Date | 26 January 1988 |
| Docket Number | 5-86-3,88-LW-0738 |
| Parties | Eugene R. CORRON, et al., Plaintiffs-Appellants, v. Evelyn M. CORRON, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court
Kolb Kolb & Kolb Richard Kolb, Toledo, Weasel & Brimley John Kostyo, Findlay, for plaintiffs-appellants.
William B. Balyeat, Lima, for defendants-appellees.
This is an appeal from an order by the Court of Common Pleas, Probate Division, Hancock County, in which the court dismissed the second and third claims for relief in appellants' amended complaint. The first claim for relief consisted of an action to contest the 1982 will of George Corron (George), which has been admitted to probate. The order of the court dismissing the second and third claims for relief found no just reason for delay as required in Civ. R. 54(B).
This case involves a dispute over the validity of George's will and the validity of certain inter vivos gifts made by George within four years of his date of death. George died August 3, 1984. He executed what purports to be his last will and testament on January 8, 1982. Prior to that date he had executed an earlier will dated May 14, 1980 followed by a codicil to this will dated November 16, 1981. During the period from May 14, 1980 until January 1982 George also made inter vivos gifts to his spouse, her son-in-law and her grandson.
Appellants are the natural children of George, born during a prior marriage. Appellants, together with the surviving spouse, are his only heirs at law.
Appellants filed a complaint in the Probate Court, Hancock County, to contest the January 1982 will which had been admitted to probate in that court. Later appellants obtained leave of court to file an amended complaint consisting of three claims for relief. The first claim contested the validity of the January 1982 will. The second claim contested the validity of the May 1980 will and the November 1981 codicil under the provisions of R.C. 2721.03, R.C. 2721.05 (Declaratory Judgments), R.C. 2101.04 (Jurisdiction of Probate Court) and Civ. R. 18 (Joinder of Claims).
The third claim contests the validity of the inter vivos gifts made in 1980 and thereafter. In all three cases the grounds for the claim of invalidity were lack of capacity, undue influence and fraud.
Upon motion by the defendants the court dismissed the second and third complaints for lack of jurisdiction and plaintiffs filed their notice of appeal.
Two errors are assigned in this appeal, the first of which is:
Appellants contend that the probate court has jurisdiction to determine the validity of a will which has not yet been admitted to probate under the provisions of R.C. 2721.03, construction or validity of instruments. Appellants argue that the language of the statute is not confined to wills admitted to probate. In addition appellants point out that the second paragraph of this section specifically authorizes the use of a declaratory judgment action to determine the validity of a will during the lifetime of the testator. Therefore, appellant argues, it is clear that the legislature was considering the challenge of wills when the statute was drafted.
It is undisputed in this case that the will dated May 14, 1980 has not been admitted to probate. Furthermore, it is undisputed that the will dated January 8, 1982 has been admitted to probate. In the second claim for relief, appellant seeks a judicial determination of the validity of the will dated May 14, 1980 under R.C. 2721.03 of the Declaratory Judgments Chapter.
A proceeding for a declaratory judgment must be based on an actual controversy. No proceeding lies under the declaratory judgment acts to obtain a judgment which is merely advisory, or which merely answers a moot or abstract question. 22 American Jurisprudence 2d (1965) 847, Declaratory Judgments, Section 10. To ask the court to render a declaratory judgment as to the validity of the will dated May 14, 1980 appears to us to be a request for a judgment which is merely advisory. This will has not been admitted to probate and may never be admitted. If the will presently admitted to probate withstands the will contest case, the May 14, 1980 will and later codicil will stand revoked under the terms of the January 1982 will. Under these facts we conclude that the second claim for relief does not present a justiciable dispute for determination by the court. See American Jurisprudence 2d (1965), 905, Declaratory Judgments, Section 48, where it is stated:
"Nor will the courts generally construe or declare the existence of a will until after it has been probated.' (Emphasis added).
See also Radaszewski v. Keating (1943), 141 Ohio St. 489, paragraph 3 of the syllabus which states as follows:
...
To continue reading
Request your trial