Jacobsen v. Jacobsen

• Decision Date: 11 January 1956
• Docket Number: No. 34397,34397
• Citation: 164 Ohio St. 413,131 N.E.2d 833
• Parties: , 58 O.O. 239 JACOBSEN et al., Appellees, v. JACOBSEN et al., Appellants, et al.
• Court: Ohio Supreme Court

Page 413

164 Ohio St. 413

131 N.E.2d 833, 58 O.O. 239

JACOBSEN et al., Appellees, v. JACOBSEN et al., Appellants, et al.

No. 34397.

Supreme Court of Ohio.

Jan. 11, 1956.

Syllabus by the Court.

1. By reason of the provisions of Section 10501-53, General Code, Section 2101.24, Revised Code, the Probate Court has exclusive jurisdiction, unless otherwise provided by law, as to all matters specifically set forth therein and as to all matters pertaining directly to the administration and settlement of estates.

2. Whether the Probate Court has jurisdiction or not, the Common Pleas Court may afford relief to parties damaged by a fraudulently procured or forged will.

3. Where it is claimed that a purported beneficiary, under an instrument in the form of a will, secured its execution by forgery, fraudulently procured waivers of next of kin of the purported testator for the purpose of probating such will, procured the probate of the same by false testimony of the witnesses thereto, and had himself appointed executor thereof, such next of kin may maintain a suit in the Common Pleas Court to have the so-called beneficiary and executor held to be a trustee ex maleficio for the benefit of such next of kin who would have been entitled to the estate in the event of intestacy.

This is an appeal from a judgment of the Court of Appeals for Ottawa County reversing a judgment of the Common Pleas Court of that county dismissing the petition in this action after sustaining a demurrer thereto. The petition was filed in the Common Pleas Court by Louis Jacobsen and five of his brothers, all sons of Christine Jacobsen, deceased, ultimately against the defendants, William Jacobsen and Marie Kruse personally, son and daughter, respectively, of Christine Jacobsen.

The petition alleges that the defendant William Jacobsen fraudulently secured the execution of a will by his mother, Christine C. Jacobsen, when she was infirm and totally blind, naming him, his sister, Marie Kruse, and another sister who predeceased her mother, without issue, sole devisees and legatees; that he fraudulently procured waivers from the plaintiffs for the purpose of probating such will; that he fraudulently procured the probate of the same by false testimony of the witnesses thereto; and that he, as executor of the will, filed an inventory representing that his mother died possessed of only $700 and at the same time failed to account for a large amount of money belonging to his mother's estate, which he had converted to his own use. A second cause of action is set out in the petition against the defendant Marie Kruse in which it is alleged that she received bequests under the will of her mother through the alleged fraudulent acts of William Jacobsen as set out in the statement of the first cause of action.

The prayer of the petition is that the defendants, William Jacobsen and Marie Kruse, be declared constructive trustees of the property and assets of the estate of which they had become possessed.

The defendants demurred to the petition on the ground that it appears on its face that the Common Pleas Court had no jurisdiction of the subject of the action, and that the facts stated therein do not constitute a cause of action. The demurrer was sustained and judgment was entered for the defendants.

On appeal to the Court of Appeals, that court reversed the judgment of the Common Pleas Court, and the cause is now in this court on appeal, a motion to certify the record having been allowed.

Marshall, Melhorn, Bloch & Belt, John B. Spitzer, Toledo, and A. C. Wilber, Port Clinton, for appellants.

James E. Thierry, John B. Morton, Port Clinton, John S. Saalfield and Taylor, Cruey & Kelb, Toledo, for appellees.

HART, Judge.

The sole question presented is whether the Court of Common Pleas has concurrent jurisdiction with the Probate Court with respect to a claim that one appointed by the Probate Court as executor of a will fraudulently procured the execution and probate of such will, and with respect to a claim that such executor failed to account for assets of the estate.

It is conceded by the defendants that an executor can be held responsible for submitting a fraudulently executed will for probate and for the concealment of assets of the estate which he represents. The defendants concede also that the petition in this case follows closely a form of the petition in the case of Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193, 52 A.L.R. 761, wherein this court held that the Court of Common Pleas had jurisdiction to enforce a constructive trust against a person who fraudulently procured the execution and probate of a will and possession of assets of an estate supposedly distributed by the will.

However, the defendants in the instant case maintain that the Seeds case was decided prior to the revision of the Probate Code in 1932, and that, in view of the changes effected in that revision, the doctrine of the Seeds case is no longer applicable.

Prior to 1932, Section 10531, General Code, provided that after one year after the probate of a will, no person, except infants, persons of unsound mind or persons in captivity, could contest the validity of a will and were forever barred from contesting the probate of such will. Prior cases had held that the Probate Court had no power to alter or set aside a judgment probating a will after the expiration of the period for contest. See McVeigh v. Fetterman, 95 Ohio St. 292, 116 N.E. 518; Mosier v. Harmon, 29 Ohio St. 220; Bailey v. Bailey, 8 Ohio 239.

The appellants maintain that the controlling principle in the Seeds case was that persons defrauded through the execution and probate of a will should have a remedy, and that, since there was no provision therefor in the Probate Code, the Common Pleas Court, as a court of general jurisdiction, has jurisdiction in such cases. The appellants maintain further that in 1932 the Probate Code was amended so as to shorten the period within which suit might be filed to six months but accorded the Probate Court power to set aside its own judgments, and that such court has been given, by inference at least, exclusive jurisdiction in such matters, as a result of all of which the instant action may not be maintained in the Common Pleas Court.

This extension of power is made by Section 10501-17, General Code, Section 2101.33, Revised Code, which reads as follows:

'The probate court shall have the same power as the common pleas court to vacate or modify its orders or judgments.'

Section 10501-53, General Code, as amended in 1932, Section 2101.24, Revised Code, described and defined the jurisdiction of the Probate Court, in part, as follows:

'Except as hereinafter provided, the probate court shall have jurisdiction:

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'3. To direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates;

'4. To appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts;

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'11. To construe wills;

'12. To render declaratory judgments;

'13. To direct and control the conduct of fiduciaries and settle their accounts.

'Such jurisdiction shall be exclusive in the probate court unless otherwise provided by law.

'The probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.'

Section 10501-55, General Code, Section 2101.24, Revised Code, provides:

'The jurisdiction acquired by a probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law.'

It will be noted that ...