Palazzi v. Estate of Gardner

• Decision Date: 26 August 1987
• Docket Number: No. 86-1265,86-1265
• Citation: 32 Ohio St.3d 169,512 N.E.2d 971
• Parties: PALAZZI, Appellant, v. ESTATE OF GARDNER et al., Appellees.
• Court: Ohio Supreme Court

Page 169

32 Ohio St.3d 169

512 N.E.2d 971

PALAZZI, Appellant, v. ESTATE OF GARDNER et al., Appellees.

No. 86-1265.

Supreme Court of Ohio.

Aug. 26, 1987.

Syllabus by the Court

The constitutionality of a state statute may not be brought into question by one who is not within the class against whom the operation of the statute is alleged to have been unconstitutionally applied and who has not been injured by its alleged unconstitutional provision.

The present controversy involves an action to contest what purports to be the last will and testament of Robert B. Gardner. Gardner died on January 25, 1967. An application to probate the aforementioned will was filed on January 30, 1967, naming, as next of kin, Gardner's grandson, Frederick B. Palazzi, Jr., appellant herein. The application discloses that the applicant-executor was aware of both the identity and address of appellant (Ashland, North Carolina). Nevertheless, no notice of the proceeding was sent thereto.

Appellant alleges that he did not become aware of the death of his grandfather "until 1984." On April 29, 1985, he instituted the present action (later amended) claiming that the notice requirements of the Ohio Probate Code and the parallel provisions of the Ohio Revised Code relating to service of process are unconstitutional as applied to nonresident heirs. It is also his contention that the will submitted to probate was not the actual last will and testament of Robert B. Gardner. In the alternative, appellant sought construction of the will as it applies to him.

In response to the complaint, appellees filed a motion to dismiss the action for failure to state a claim upon which relief can be granted. The Probate Court of Butler County granted the motion to dismiss and the dismissal was affirmed by the court of appeals.

The cause is now before the court pursuant to the allowance of a motion to certify the record.

Schaengold & Stephens and Gary C. Schaengold, Dayton, for appellant.

Dinsmore & Shohl, Wiley Dinsmore, Elizabeth D. Brain, Cincinnati, Rathman, Combs, Schaeffer, Valen & Kaup and William E. Rathman, Middletown, for appellees.

SWEENEY, Justice.

The instant appeal calls into question the constitutionality of the notice provisions governing Ohio probate proceedings. Probate of a will in Ohio involves a bifurcated process. R.C. Chapter 2107 governs, among other things, the execution and probate of wills within the state. R.C. 2107.13 prescribes the procedure by which notice of the probate proceeding is to be given to interested parties. It provides:

"No will shall be admitted to probate without notice to the surviving spouse known to the applicant, and to the persons known to the applicant to be residents of the state who would be entitled to inherit from the testator under sections 2105.01 to 2105.21 of the Revised Code, if he had died intestate." ¹

Further, R.C. 2703.14(E) permits the utilization of constructive notice with respect to certain individuals and entities. It states in relevant part:

"Service may be made by publication in any of the following cases: * * * (E) In an action to establish or set aside a will, when the defendant is not a resident of this state or his place of residence cannot be ascertained."

It is undisputed that appellant was not afforded actual notice of the admission of the will to probate. ² Appellant contends that he did not become aware of the death of his grandfather "until 1984." On April 29, 1985, he brought the present action to contest the will pursuant to R.C. 2107.71, which provides:

"(A) A person interested in a will or codicil admitted to probate in the probate court * * * may contest its validity by a civil action in the probate court in the county in which such will or codicil was admitted to probate."

The proceeding contemplated by R.C. 2107.71 is subject to the limitations period prescribed by R.C. 2107.76. This section provides in pertinent part:

"If within four months after a will is admitted to probate, no person files an action permitted by section 2107.71 of the Revised Code to contest the validity of the will, the probate shall be forever binding, except as to persons under any legal disability, or to such persons for four months after such disability is removed. * * * "

It is the contention of appellant that the failure of R.C. 2107.13 to provide actual notice to nonresident heirs who would take through intestacy upon invalidation of the will denies to them due process of law in violation of the Fourteenth Amendment to the United States Constitution. Appellees, in response, rely on the reasoning of the court of appeals that notice of the "non-adversarial" proceeding to admit the will to probate would have afforded no relief since "it is not appropriate to challenge a will in an application proceeding." See In re Will of Hathaway (1854), 4 Ohio St. 383. The foregoing analysis, however, focuses upon the nature of the initial proceeding rather than upon the effectiveness of the notice. It therefore begs the question as to whether notice has been given in a manner reasonably calculated to apprise one that his legally protected interests are in jeopardy.

Thus, in Fuentes v. Shevin (1972), 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, the United States Supreme Court remarked:

"For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale [1863], 1 Wall. 223, 233 . See Windsor v. McVeigh [1876], 93 U.S. [3 Otto] 274 ; Hovey v. Elliott [1897], 167 U.S. 409 [17 S.Ct. 841, 42 L.Ed. 215]; Grannis v. Ordean [1914], 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363]. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo [1965], 380 U.S. 545, 552 [85 S.Ct. 1187, 1191, 14 L.Ed.2d 62]." (Emphasis added.)

As applied to the procedures considered herein, Fuentes supports the contention of appellant that the opportunity to contest a will be given during the pendency of the probate proceeding. Otherwise, the period for challenging the will may well expire before an interested party is apprised of his opportunity to do so. See Fink, Ante-Mortem Probate Revisited: Can an Idea Have A Life After Death? (1976), 37 Ohio St.L.J. 264, 285; Note, Due Process--The Requirement of Notice in Probate Proceedings (1975), 40 Mo.L.Rev. 552, 558; Note, Validity of Probate Notice Statutes in Ohio (1958), 27 U.Cin.L.Rev. 76, 84.

Having concluded that due process demands that timely notice be given, it is necessary to determine whether appellant has been denied a constitutionally protected right under the facts of this case. In evaluating a challenge of this sort, it is necessary to inquire whether a protected interest exists and, if so, what process is due. Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265. Appellees maintain that appellant has failed to identify any constitutionally protected right. It is their contention that any right foreclosed by lack of notice is limited to the opportunity of appellant to cross-examine witnesses to the will. ³

The argument of appellees is unduly narrow in its view of protected interests. As previously mentioned, the failure to timely give notice to an interested party that a will has been admitted to probate effectively forecloses the opportunity for that individual to contest the will. The ability to contest the will clearly amounts to a "legally protected interest" entitled to constitutional protection. See Schroeder v. City of New York (1962), 371 U.S. 208, 212, 83 S.Ct. 279, 282, 9 L.Ed.2d 255; Boddie v. Connecticut (1971), 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113. See, also, Allan v. Allan (1976), 236 Ga. 199, 202, 223 S.E.2d 445, 449. In any event, the claim advanced by appellant to a portion of the assets of the Robert Gardner estate clearly amounts to an assertion of a property interest under a traditional due-process analysis. It is immaterial whether the alleged property interest is characterized as vested or contingent. See McKnight v. Boggs (1984), 253 Ga. 537, 322 S.E.2d 283; Gano Farms, Inc. v. Estate of Kleweno (1978), 2 Kan.App.2d 506, 509, 582 P.2d 742, 745; In re Estate of Barnes (1973), 212 Kan. 502, 511, 512 P.2d 387, 395 (Schroeder, J., concurring).

We therefore agree with the court of appeals below that the status of appellant as a contingent beneficiary of the will of his grandfather supports his assertion that he possesses a property interest entitled to due-process protection.

Appellant has maintained throughout these proceedings that due process dictates that actual notice be afforded heirs whose whereabouts are reasonably ascertainable prior to admission of a will to probate. In support of this contention, appellant cites the following language from Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865:

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer [1940], 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278]; Grannis v. Ordean [1914], 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363]; Priest v. [Board of Trustees of Town of ] Las Vegas [1914], 232 U.S. 604 [34 S.Ct. 443, 58 L.Ed. 751]; Roller v. Holly [1900], 176 U.S. 398 [20 S.Ct. 410, 44 L.Ed. 520]. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris [1909], 214...