Gravier v. Gluth
| Decision Date | 27 April 1955 |
| Docket Number | No. 34060,34060 |
| Citation | 126 N.E.2d 332,163 Ohio St. 232 |
| Parties | , 56 O.O. 228 GRAVIER et al., Appellants, v. GLUTH, Ex'x, et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The provisions of the statutes relative to the right to contest the validity of a will are mandatory, and the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.
2. Under the provisions of Section 12080, General Code, all the devisees, legatees and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to an action to contest a will.
3. Where, in an action to contest a will brought by three heirs at law of the decedent, the petition names as defendants the sole legatee and devisee, the executrix and three other heirs at law but fails to name numerous other heirs at law necessary to the determination of the validity of the will, and no service of process is sought or secured on any of the defendant heirs within six months after the will has been admitted to probate, the addition as plaintiffs of the heirs at law, who are not included in the petition, and the defendant heirs at law, who are not served with summons to the action, after the expiration of the statutory period of limitation, does not confer jurisdiction on the court to hear such contest. Case v. Smith, 142 Ohio St. 95, 50 N.E.2d 142, and Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683, approved and followed.
This is an action to contest a will instituted originally in the Court of Common Pleas of Cuyahoga County on February 27, 1951. The action was brought by three of the heirs at law of Edwin W. Bechler who died August 18, 1950, and whose will was admitted to probate in the Cuyahoga County Probate Court on September 8, 1950. The petition named as defendants Catherine Gluth, the executrix, Edith N. Boll, the sole legatee and devisee of the estate, and Mary Fredette, Arthur Faenrich and Emil Faenrich, who are alleged to be the decedent's 'only next of kin and heirs at law'; alleged that the paper writing admitted to probate on September 8, 1950, is not the last will of the said Edwin W. Bechler; and prayed that an issue be made up whether such paper is such last will and that the same be set aside.
A precipe was issued to the sheriff of Cuyahoga County directing him to serve summons on Catherine Gluth, executrix, and Edith N. Boll, and in conformance with such order the sheriff served each of these defendants on March 2 and 4, respectively, 1951. No order was issued for service of summons on the other defendants and the record discloses no such service.
On January 15, 1953, the plaintiffs sought leave to amend the caption of the petition, and leave was granted to Arthur Faenrich, Emil Faenrich and Mary Fredette, originally named as defendants, Erika Bechler Ahrens, Ehkart Bechler, Elfa Bechler, Margarete Bechler, Martha Bechler, Luch Bechler and Ernest Bechler, all residents of Berlin, Germany, and Anna Bechler and John Bechler, of Cullman, Alabama, to become parties plaintiff. Their names were written in as a part of the caption of the petition under the heading, 'Additional Parties Plaintiff,' and no amendment was made to the body of the petition.
A motion by the defendant Boll to have the petition made definite and certain by setting forth therein the interests of these additional plaintiffs was sustained, and thereafter on April 17, 1953, an amended petition was filed in which it is alleged that the plaintiffs are the decedent's only next of kin and heirs at law. A motion was filed by the defendants to dismiss the action for want of jurisdiction, which motion the Court of Common Pleas sustained and judgment was rendered for the defendants.
An appeal was prosecuted to the Court of Appeals for Cuyahoga County by the plaintiffs, which court affirmed the judgment of the Court of Common Pleas. 119 N.E.2d 663.
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
John J. Tetlow, William J. Tetlow, John J. Sheehan and Francis C. Duffy, Cleveland, for appellants.
Deibel, Elbrecht & Roberts, Cleveland, for appellees.
The single question of law presented to this court is: Did the Court of Appeals commit error in affirming the judgment of the Court of Common Pleas dismissing the action for want of jurisdiction for the reason it was not commenced within the time required by law?
In the decision of this matter it is necessary to refer to certain pertinent statutes which establish the right to contest a will, as they were in effect at the time of the commencement of this action, and which are as follows:
Section 12079, General Code. 'A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest its validity by a civil action in the common pleas court of the county in which such probate was had.'
Section 12080, General Code. 'All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.'
Section 12087, General Code. 'An action to contest a will or codicil shall be brought within six months after it has been admitted to probate, but persons under any legal disability may bring such action within six months after such disability is removed; and provided further, that the rights saved to persons under disability 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 10504-32, General Code. 'If within six months after a will is admitted to probate, no person interested filed an action to contest the validity of the will, the probate shall be forever binding, saving, however, to persons under any legal disability * * *.'
As stated above, the petition of the plaintiffs, Leona E. Gravier, Anna Bechler and Charles P. Bechler, was filed within the six-month limitation period, and service of summons was had on the executrix and on the sole legatee within that period but no service was had within that time on the three heirs at law named in the petition as defendants. Immediately prior to the filing of the amended petition, the situation in this case was similar to that which existed in Case v. Smith, 142 Ohio St. 95, 50 N.E.2d 142, decided by this court July 14, 1943. That action was brought against the legatee, the administratrix and the known heirs and the unknown heirs of the decedent, and as in this case summons was issued on the legatee individually and on the administratrix but no summons was served on the heirs at law or next of kin. As in the instant case, the Court of Common Pleas dismissed the petition for want of jurisdiction and entered judgment in favor of the legatee and the administratrix.
The syllabus of that case is as follows:
'1. No right exists to maintain an action to contest the validity of a will except as it is specifically provided by statute. McVeigh v. Fetterman, 95 Ohio St. 292, 116 N.E. 518, approved and followed.
'2. The provisions of the statutes relative to an action to contest the validity of a will are mandatory; the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.
'3. The sole beneficiary, under a will, who is neither an heir-at-law nor next of kin of the decedent, is not 'united in interest' with decedent's heirs-at-law or next of kin.
'4. An action to contest the validity of a will is not commenced as to the heirs-at-law of testator by service of summons upon such sole beneficiary within six months from the date of probate where such sole beneficiary is neither an heir-at-law nor next of kin of decedent. McCord v. McCord, 104 Ohio St. 274, 135 N.E. 548, approved and followed.
In the case of Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683, 684, the executrix duly appointed by the Probate Court was not named as a defendant in the petition to contest the will of the decedent, and no summons was issued or served on her. This court in that case held in the syllabus as follows:
'1....
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