Heater v. Mittendorf

• Decision Date: 29 March 1943
• Citation: 72 Ohio App. 4,50 N.E.2d 559
• Parties: HEATER et al. v. MITTENDORF.
• Court: Ohio Court of Appeals

50 N.E.2d 559

72 Ohio App. 4

HEATER et al. v. MITTENDORF.

Court of Appeals of Ohio, First District, Hamilton.

March 29, 1943

John W. Cowell, of Cincinnati, for appellants.

Harry H. Baker, of Cincinnati, for appellee.

MATTHEWS, Judge.

In this action, which was commenced in the Court of Common Pleas of Hamilton county, Ohio, and appealed on questions of law therefrom to this Court, the plaintiffs seek judgment for the amount of a legacy bequeathed to their mother by the will of John H. Mittendorf, deceased.

It appears from the pleadings and the recitals in the journal entry of stipulated facts that at the time of his death on September 19, 1940 John H. Mittendorf was domiciled in the State of Indiana where certain property owned by him had its situs. He also owned real estate in Hamilton county, Ohio. By his will, he devised this real estate to three of his sisters and bequeathed to Lydia Heater, another sister, the sum of $3,000. Lydia Heater died in the State of Washington on July 19, 1939, leaving the plaintiffs as her sole surviving descendants. The will was probated in Indiana at the domicile of the testator and the defendant was appointed executor in that proceeding. The executrix resides in Hamilton county Ohio, and ancillary administration was instituted by her in the Probate Court of Hamilton county, Ohio, and ancillary letters of administration issued to her by that court. It does not appear that the administration has been completed or that any order directing the distribution of the estate to those entitled has been made by either court.

Whether the plaintiffs, or either of them, was a resident of Ohio at the time of testator's death or the institution of this action, does not appear.

It is admitted in the pleadings that it is provided by statute in Indiana that a bequest to a descendant of a testator shall not lapse by reason of the legatee's death during the life of the testator, but shall vest in the surviving descendant of the legatee as if such legatee had survived the testator and died intestate. 3 Burns' Indiana Statutes Annotated, 1933, at page 299, § 7-709. That statute was in full force and effect at the time of the testator's death. No evidence was offered as to the unwritten or common law of Indiana on the subject of bequests to relatives other than descendants of the testator.

The trial court found that the laws of Indiana applied, that the legacy lapsed on the death of the legatee during the testator's lifetime, that the plaintiffs had no right or title thereto and dismissed the action at their costs. That is the judgment appealed from.

(1) By section 10509-199, General Code, it is provided that 'After thirty days from the time of the settlement of the account of an executor * * *, and an order of distribution made thereon by the probate court, if such executor, * * * neglects or refuses to pay to a person interested in such order, distribution as * * * legatee, * * * or otherwise when demanded, his or her share of the estate or property ordered to be distributed, the person so interested may file a petition in the probate court against the executor * * *, briefly setting forth therein the amount and nature of the claim of the party filing it.' And by subsequent sections the Probate Court is empowered to hear and if plaintiff's claim is established and there is no defense, to render judgment against the executor. By section 10509-206, General Code, the Common Pleas Court is given concurrent original jurisdiction of such actions with the Probate Court. But by section 10501-53, General Code, the Probate Court is given exclusive jurisdiction 'to direct and control the conduct of fiduciaries and settle their accounts.' It would seem, therefore, that in the absence of allegation and proof of an order of distribution by the Probate Court, that Court had exclusive jurisdiction of the subject-matter, and no action had been shown within the jurisdiction of the Common Pleas Court.

(2) Was the conclusion of the trial court that this legacy had lapsed right?

In 11 Am.Juris. 476, it is said: 'In the case of a will of personal property the law of the testator's domicil at the time of his death governs. * * * the general rule is that all questions concerning the will arising in regard to personal property are referred to the law of the domicil of the testator at the time of his death.' And, at page 484, it is stated that: 'The question of the lapsing of a bequest of personal property is governed wholly and exclusively by the law of the testator's domicil * * *.' See also: 32 Ohio Juris. 314.

Counsel concedes this rule, but argues that inasmuch as the Indiana statute offered in evidence only applies to legacies bequeathed to the testator's descendants, it has no application to legacy, as in this case, to the testator's sister, and that as there is no proof other than this statute as to the law of Indiana, the Court is forced to apply the only law that it knows, which is the law of the forum, statutory as well as common law, and to presume that the law of Indiana is the same, and that by Section 10504-73, General Code, it is provided that a bequest to any relative of the testator does...