Feuchter v. Keyl

• Decision Date: 19 May 1891
• Citation: 27 N.E. 860,48 Ohio St. 357
• Parties: FEUCHTER v. KEYL et al.
• Court: Ohio Supreme Court

27 N.E. 860

48 Ohio St. 357

FEUCHTER v. KEYL et al.

Supreme Court of Ohio.

May 19, 1891

Error to circuit court, Summit county.

These proceedings originated in the probate court of Summit county in October, 1885, by the filing of a paper called a ‘ petition,’ in the following words and figures: ‘ To the honorable C. R. Grant, judge of the probate court in and for Summit county, Ohio. Your petitioners, Catherine Keyl and Elizabeth Dietrich, the children and heirs at law of Anna Kath Shook, née Feuchter, a sister of the said John Feuchter, deceased, George Feuchter, Katherina Walser, Heinrich Feuchter, and Christine Feuchter, the children and heirs at law of George Michel Feuchter, a brother of the said John Feuchter, deceased, respectfully represent to your honor that by the terms of the last will and testament of John Feuchter, deceased, they are the devisees and legatees of all the said estate of the said John Feuchter, deceased, except the sum of one dollar, given thereby to one Henry Feuchter; that all of your petitioners are residents of Germany, in Europe, and, at the date of the death of said John Feuchter, the filing of said will in this court when proof was attempted to be taken of the execution and acknowledgment of said last will and testament, and judgment was attempted to be entered in this court, refusing to admit said will and testament to probate as the last will and testament of the said John Feuchter, deceased, were residents of and personally present in Germany, in Europe and not within the county of Summit, or state of Ohio; that although the place of residence of your petitioners was named in said will, and was well known to Henry Feuchter, the heir at law of all the estate of the said John Feuchter, deceased should said John Feuchter finally prove to have died intestate, your petitioners, who are the parties interested in sustaining said will, and in procuring it to be admitted to probate, had, at the time said last will and testament was offered for probate, no information, notice, or knowledge whatever of the existence of said last will and testament, or of the time fixed for hearing proof concerning the execution and acknowledgment of said last will and testament; that no personal service was had or attempted to be had upon petitioners, or either of them; that no service by publication was had or attempted to be had upon them or either of them, and that no information or knowledge of the existence of said will, said hearing, or the pretended judgment which was entered in this court, refusing to admit said will to probate, on the 30th day of April, A. D. 1885, came to any of the petitioners until long after the expiration of ten days from the entry of said pretended judgment. And your petitioners further represent that neither the executor named in said will, nor any interested party, offered said will for probate, and no party interested in sustaining said will was notified of the time fixed for said hearing, or present at said hearing; and that the only party present at said hearing was said heir at law, who was then and there represented by counsel. Your petitioners now bring said will into court, and present it herewith for the purpose of having it probated according to law. Your petitioners further say that said will was duly executed and attested by the said John Feuchter, deceased; that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint. Wherefore your petitioners pray that the pretended judgment heretofore, to-wit, on said 30th day of April, A. D. 1885, entered by the court in its journal, refusing to admit said will to probate as the last will and testament of the said John Feuchter, deceased, may be vacated, set aside, and held for naught; that a day may be appointed by the court to take proof concerning the execution and acknowledgment of said will; that due and legal notice of the date of said hearing and of the prayer of this petition may be served on all parties in interest, and especially on Henry Feuchter, the heir at law of John Feuchter, deceased, and on the executor named in said will, and said will may be admitted to probate as the last will and testament of the said John Feuchter, deceased, and letters testamentary granted and issued thereon.’ This petition, upon the motion of the plaintiff in error, was dismissed by the probate court. The defendants in error appealed to the court of common pleas, where, upon motion of the plaintiff in error, the appeal was likewise dismissed. The defendants in error then carried the case to the circuit court on error, which latter court reversed the judgment of dismissal, and remanded the cause to the court of common pleas, to be further proceeded with according to law; whereupon the plaintiff in error instituted proceedings in error in this court to reverse the judgment of the circuit court and affirm that of the court of common pleas.

MINSHALL, J., dissenting.

Syllabus by the Court

1. A new remedy, provided by statute for an existing right, where it neither denies an existing remedy nor is incompatible with its continued existence, should be regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option.

2. Where admission of a will to probate has been refused by the probate court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the court of common pleas from the order of refusal are not concluded thereby, but may repropound the will, notwithstanding the former order of refusal has not been vacated.

3. One named in a will as its executor, who does not accept the trust, is not the representative of the beneficiaries named therein, and therefore a notice to him of proceedings to probate the will should not be, by construction, extended to them.

M. B. Tibbals , for plaintiff in error.

Charles Baird and Edwin F. Voris , for defendants in error.

BRADBURY, J., (after stating the facts as above .)

The only question presented to this court by the record in this cause is whether the defendants in error had a right to carry to the court of common pleas by an appeal the proceedings begun by them in the probate court. That right depends upon (1) whether that proceeding is to be construed as an offer to repropound the will of John Feuchter; and (2) were they bound by the order of April 30, 1885, of the probate court refusing to admit it to probate? The plaintiff in error, without denying the general right of every person interested in the probate of a will to appeal from an order refusing to admit it to probate, contends (1) that the proceeding begun by the defendants in error was not properly an offer to repropound the will, but was, when correctly construed, a proceeding to set aside the former order of the probate court, and that the order of the probate court dismissing the petition was one refusing to set aside that former order, and not one refusing to admit the will to probate, and therefore did not fall within section 5934, Rev. St., which authorizes an appeal from an order of a probate court refusing to probate a will. Plaintiff in error further claims that the order of the probate court, made April 30, 1885, refusing to probate the will, not having been appealed from, is binding on all parties claiming under the instrument, and precludes them from again presenting it for probate. If the plaintiff's contention, in either respect, is correct, he should prevail. We will consider first the character of the order of the probate court, made April 30, 1885, refusing to admit the will to probate, and the circumstances under which it was made. The first step taken that led to the making of that order was a notice by a postal-card, mailed Thurs day, April 23, 1885, to the person named in the will as executor, that it would be offered for probate on the following Saturday, (April 25th.) He appeared at the hour named, and, after hearing the will read, left the court before any testimony was taken, and has not since appeared, accepted the trust, or taken any apparent interest in the matter. No attempt was made to give any other notice, and in fact the defendants in error, though the only beneficial devisees under the will, had no knowledge that it was to be offered for probate, or of its rejection, until the time prescribed by statute,...