Lindsey v. Markley

• Citation: 87 Ohio App. 529,96 N.E.2d 311
• Parties: , 43 O.O. 317 LINDSEY et al. v. MARKLEY et al.
• Decision Date: 21 April 1950
• Court: United States Court of Appeals (Ohio)

Page 529

87 Ohio App. 529

96 N.E.2d 311, 43 O.O. 317

LINDSEY et al. v. MARKLEY et al.

Court of Appeals of Ohio, Tuscarawas County.

April 21, 1950.

Syllabus by the Court.

1. Section 12082, General Code, as amended effective July 4, 1945, and authorizing the allowance as a part of the costs of administration of a decedent's estate, attorney fees for an unsuccessful defense of a purported will, is not unconstitutional, does not deprive the contestees of property without due process of law, and is not unreasonable.

2. That section does not violate the provisions, the spirit, or the intent of Sections 7 and 8 of Article IV of the Constitution of the State of Ohio, which define and determine the jurisdiction of the Probate Court in the settlement of accounts of fiduciaries.

Watts, Poffenbarger & Bowles, Charleston, W. Va., and Bowers, Stafford & Bowers, New Philadelphia, for appellants.

Wilbur D. Spidel and Richard E. Hole, Greenville, Fred Syler, Dover, and Vernon Lee, New Philadelphia, for appellees.

MONTGOMERY, Presiding Judge.

The actual appellants are the attorneys of record for the contestees in an action brought in the Common Pleas Court of Tuscarawas County to contest the validity of the will of Emma Fletcher Ream, who died in 1947. They were unsuccessful, because the jury to which the cause was submitted returned a verdict for the contestants and judgment was entered upon that verdict. From that judgment an appeal was perfected to, and is pending, in this court.

After that adverse verdict, these attorneys filed a motion in the Common Pleas Court, in that action, asking for the allowance of attorney fees, under authority of Section 12082, General Code, effective July 4, 1945. That motion was overruled, and from that order this appeal was perfected.

That Code section is in this language: 'An issue must be made up, either by pleadings or an order on the journal, whether or not the writing produced is the last will or codicil of the testator, which shall be tried by a jury. The verdict shall be conclusive, unless a new trial be granted, or the judgment is reversed or vacated; and, where the jury finds that the writing produced is not the last will and testament or codicil of the testator, the trial court shall allow as part of the costs of administration and order to be paid out of the estate of the decedent, whose purported last will or purported codicil was contested, such amounts to the fiduciary or fiduciaries and to the attorney or attorneys defending such purported last will or purported codicil, as in the opinion of the trial court are fair, just and reasonable compensation for the services rendered in such contest. A copy of such order shall be certified to the probate court by the clerk of the court of common pleas and the probate judge shall include the amount so certified in the costs of administration.'

Contestees defend the action of the trial court on several grounds, all of which we will discuss.

The chief contention is that this statutory enactment is unconstitutional in that, in such an action, it would mean a deprivation without due process of law of a property right which had become vested in the appellees.

Now there is no natural right to inherit property. Such right, if it exists, is a result of legislative action.

As stated by Judge McIlvaine in the case of Gilpin v. Williams, 25 Ohio St. 283, at page 300: 'There is no principle better settled than that the expectation of an heir presumptive is not a vested right but a mere possibility. It is not an estate in property, and can be neither transferred or released. Upon this principle it is held that the laws of descent may be changed at the pleasure of the Legislature, as to all estates not already cast upon the heir by the death of an ancestor.'

An interesting discussion of this situation is to be found in the case of State ex rel. Taylor v. Guilbert, 70 Ohio St. 229, 249, 71 N.E. 636. The Supreme Court of Ohio in that case followed the Supreme Court of the United States in the case of Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037, and quoted from the opinion in that case in this language 'The right to take property by devise or descent is the creature of the law, and not a natural right,--a privilege,--and therefore the authority which confers it may impose conditions upon it.' 170 U.S. at page 288, 18 S.Ct. at page 596, 42 L.Ed. 1037.

The same proposition was later decided by the Supreme Court of Ohio in the case of Ostrander v. Preece, 129 Ohio St. 625, 196 N.E. 670, 103 A.L.R., 218. The third paragraph of the syllabus in that case is: 'Legislation which deals with rights of transmission and...