Jones v. Lewis
| Citation | 70 Ohio App. 17,44 N.E.2d 735 |
| Parties | JONES v. LEWIS et al. |
| Decision Date | 07 July 1941 |
| Court | United States Court of Appeals (Ohio) |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. An action in Probate Court, brought by an administrator to determine the legatees and distributees of an estate and their respective interests in personal property in his hands and asking for a distribution in kind or sale of certain other property, in which action neither petition nor answer nor the will before the court alleges or show any involvement of a trust in respect to the estate, is not a chancery case.
2. In such action, a notice of appeal stating that it is on questions of law and fact will be amended by striking therefrom the words 'and fact,' and the case will be retained as an appeal on questions of law.
3. Where the defense of res judicata is interposed in such case and a bill of exceptions is filed, precluding the appellate court from ordering the preparation and settlement of a bill of exceptions as provided in Section 11564, General Code, and there is no showing that the failure to include the record of the former adjudication occurred through accident or error which would authorize the appellate court, under Section 11572-a, General Code, to correct the bill of exceptions of remand it to the Probate Court for that purpose, the offer in evidence of the record of the former proceedings in the Common Pleas Court will be refused.
4. Where a testator by the first clause of his will disposed of 'all of my real estate and personal property' and in a later clause made reference to certain stock, which he disposed of in an entirely different manner than all his other property, reversing the common, accepted chronological order in which items in a will are placed, under the principles that the intent of the testator is to be gathered from the whole will, giving to the language used its plain and ordinary meaning, and that the construction given to any part of the will should conform to its general scope and purpose, each of the parts being construed with the others to make a consistent whole, it is error for the Probate Court to hold that the testator, by devising all of his real estate and personal property under the first clauses of the will, included the stock therein, and that the further references in the will thereto were of no force and effect insofar as its disposition was concerned.
5. Where a testator directed that certain stock was to remain as stock, and not to be sold or distributed, for the purpose of providing his living children with all the dividends therefrom equally and that after all his children were dead the stock was to be distributed to 'my children's heirs,' the intention of the testator and the meaning he gave to the word 'heirs' is to be gathered from a reading of the entire will and not confined to the word's strict and technical meaning.
6. In such case, where the testator's children held only a life estate in the dividends from the stock and a reading of the whole will indicates that the testator intended that the remainder should vest in his grandchildren at the time of the testator's death, upon the death of any such grandchildren, prior to the death of the last child of the testator, such grandchild's interest does not lapse but passes to his heirs at law, if intestate, or to his legatees, if testate.
7. As a general rule, a devise to a class calls for a per capita distribution and a testator evidencing a desire throughout his will to treat all those in the same degree of consanguinity equally, the court, favoring equality, will direct the distribution to be per capita, rather than per stirpes, among his 'children's heirs.'
Charles H. Jones, of Jackson, for appellants.
Benner Jones and Frank DeLay, both of Jackson, for appellee, Benner Jones.
E. E. Eubanks and Owen M. Roderick, both of Jackson, for other appellees.
This case is in this court on rehearing on an appeal from the judgment of the Probate Court of Jackson county, Ohio construing the last will and testament of Owen D. Davies, deceased, and the determination and distribution therein made. The action in that court was predicated upon a petition and an amendment and a revised amendment thereto filed by the administrator debonis non with the will annexed of the decedent, wherein the administrator petitioned the court to determine the legatees and distributees of said estate and their respective interest in certain personal property then in his hands and asking for an order for distribution in kind or sale of the balance of said property, together with a separate answer of the defendants Sarah K. Coffman and James H. Darling, and the answer of the guardian ad litem for William Davies, a minor defendant.
The notice of appellants states that the appeal is on questions of law and fact. Neither the petition nor the answers referred to nor the will which is before this court allege or show any involvement of a trust in respect to said estate. Neither is a proceeding by an executor or other fiduciary, asking the direction or judgment of the court respecting an estate which does not involve a trust, a chancery case. This action is not a chancery case and is not appealable to this court on questions of law and fact. Section 6, Article IV, Ohio Constitution; Crowley, Adm'r v. Crowley, 124 Ohio St. 454, 179 N.E. 360; Whiting v. Bertram et al., Ex'rs, 51 Ohio App. 40, 199 N.E. 367; McDiarmid, Trustee, v. McGrew, 43 Ohio App. 449, 183 N.E. 92; 2 Ohio Jurisprudence, 128, Section 110. The notice of appeal will therefore be amended by striking therefrom the words 'and fact' and the case is retained in this court on an appeal on questions of law.
One of the issues involved herein and strongly urged by appellants is that that part of the judgment of the Probate Court construing the will herein is res judicata. At the rehearing before this court appellants and the administrator joined in offering the record of cause number 5643 in the Common Pleas Court of Jackson county, Ohio, alleged in the petition as construing the will herein involved, which offer was taken under advisement by this court pending the determination as to whether the appeal is on questions of law and fact or question of law. The plaintiff below apparently overlooked the fact that there was an answer filed by the guardian ad litem denying all the allegations in plaintiff's petition and therefore placed the burden upon plaintiff in the trial court to substantiate the issue of res judicata. There is nothing in the record to indicate that the Probate Court ever had the former adjudication before it or that it gave it any consideration whatever. There is a bill of exceptions filed in this case which precludes this court from ordering the preparation and settlement of a bill of exceptions as provided in Section 11564, General Code. Neither is it apparent from the record nor was there any showing made that the failure to include the record of the former adjudication occurred through accident or error in order to authorize this court under Section 11572-a, General Code to either correct the bill of exceptions or remand it to the Probate Court for the purpose. Having determined that this case is before us on question of law, and a bill of exceptions having been filed, the offer in evidence of the record of the former proceeding in the Common Pleas Court is refused.
However, in order that no injustice may be done to any of the parties hereto this court has given consideration to the question as to whether or not the former adjudication by the Common Pleas Court of Jackson county is res judicata here had it properly been before the court. The parties in whom the remainder of the stock in question vested, or at least the vast majority of them, were not parties to this former adjudication and do not stand in privy with those who were made parties and their interest is such that they are not precluded from asserting their rights herein. For that reason should the issue of res judicata have ben properly before the Probate Court and this court on appeal we would have been forced to hold that the parties to this action are not bound thereby.
Appellants contend that the Probate Court improperly construed the will of the testator with reference to certain stock of the Globe Iron Company and the income derived therefrom and that the court erred in its finding and order of distribution.
Owen D. Davies, died testate on October 4, 1899, his will being admitted to probate in Jackson county. Both at the date of the execution of the will and at the time of his decease testator had seven living children and two deceased children. The two children that had predeceased testator left children surviving them who were living at the time of the death of testator. Testator at the time of his death owned certain real estate and personal property and among the personalty was one share of stock of the Globe Iron Company of the par value of $1,000 which has now grown to twenty shares of the par value of $1,000 each and which together with some dividends is the subject-matter of this action. All the other property of testator was disposed of and distributed during the administration of his estate approximately forty years ago.
In the first part of the will testator gave to his 'children and their legitimate children, being heirs to my sons and daughters, of which I have nine,' naming them, 'all of my real estate and personal property that I may own at the time of my death, to my said enumerated heirs excepting my son John D. Davies, the amount to be divided equal between the other eight heirs.' He further provided if his real and personal property exceeded $1,600 that his excepted son is to...
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