Skelly v. Graybill

• Decision Date: 10 February 1959
• Citation: 165 N.E.2d 218,11 O.O.2d 42,109 Ohio App. 277
• Parties: , 11 O.O.2d 42 SKELLY et al., Appellants, v. GRAYBILL, Ex'r, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 277

109 Ohio App. 277

165 N.E.2d 218, 11 O.O.2d 42

SKELLY et al., Appellants, v. GRAYBILL, Ex'r, et al., Appellees. ^*

Court of Appeals of Ohio, Stark County.

Feb. 10, 1959.

Syllabus by the Court.

1. An agreement among all the heirs at law, devisees and legatees of a testator to divide the estate in a manner different from that provided in the will, should the will be set aside by a jury in a pending will contest action in which they are parties, is not contrary to public policy and is valid.

2. In such case, the executor is not a necessary party to such agreement which is valid without his participation where his interest in the proceedings is ex officio only.

3. Under such circumstances, the executor is not an interested, adverse or aggrieved party, and no right of such executor is prejudiced by his not being notified of and present at the trial of such will contest action.

4. In such case, it is an abuse of discretion for the trial court to grant a new trial on the ground that the executor had not been notified of the time of, and was not present at, such will contest action which resulted in the setting aside of the will on a directed verdict; and the granting of such new trial is a final appealable order.

John W. Ergazos, Canton, Sherlock H. Evans, Massillon, and Jacob F. Hess, Jr., Canton, for appellants.

H. Clifton Graybill and V. F. Mills, Canton, for appellees.

PUTNAM, Presiding Judge.

The cause below was a will contest case. No trust was involved in the will. There were nine nieces and nephews, one sister, and three grand-nieces and nephews, all heirs at law of the testator. Shortly before testator's death, he was worth $50,000 in real and personal property. He devised $1,000 to one nephew and gave the balance of his estate to the Fairmount Children's Home of Stark County. The will was admitted to probate, and thereafter a will contest action was filed in the Common Pleas Court. All necessary statutory parties including H. Clifton Graybill, the executor, were made parties, either plaintiff or defendant. Thereafter all the heirs at law and devisees, but not the executor, entered into an agreement that if the will was set aside they would distribute the proceeds of the estate in a manner different from that provided in the will and not to appeal the verdict or judgment. The executor filed no answer but his name as attorney for himself as executor was entered on the appearance docket in the contest case.

Thereafter, the parties to the agreement caused the action to be set for trial out of order. The executor was deliberately not notified of the trial and he did not appear thereat. A jury was impaneled and sworn. The will was produced and admitted in evidence. The contestants produced several witnesses who offered testimony tending to invalidate the paper writing as the last will and testament of the testator. The contestees offered no evidence in rebuttal. Thereupon the court instructed the jury to return a verdict setting aside the will. This they did, and judgment was so entered. Thereafter, the executor filed a motion for a new trial and to set aside the judgment on the ground that he had not been notified and was not present in court; that this was in violation of his legal rights and of a rule of court which requires 'an adverse party to be notified.' The court granted the motion, and from that order this appeal on questions of law results by the parties to the contract above mentioned.

Several interesting and difficult questions are presented. In the first place we are confronted by the fact that in Ohio an order setting aside a judgment and granting a new trial is not a final appealable order unless the granting thereof was an abuse of discretion by the court. To be such it must shock the conscience of the reviewing court. We have no precise standards to determine this question, although we know that mere errors of law are not sufficient. See Green v. Acacia Mutual Life Ins. Co. 156 Ohio St. 1,100 N.E.2d 211; 2 Ohio Jurisprudence (2d), 641, Section 62. It follows that, for the appellants to prevail, the trial court must have abused its discretion in granting the new trial. In solving this problem it is necessary to decide several preliminary matters.

The questions presented are:

1. Where no trust is involved is it legal in Ohio for all the heirs at law, devisees and legatees to enter into an agreement in a will contest case, whereby, if the will is set aside by a jury, they will divide the estate in a manner different than that provided in a will?

2. If such an agreement is legal, is the executor, as such, a necessary party to the agreement?

3. If not, are any of the executor's rights prejudiced by not being present at the trial?

4. In such a case, where there is more than a scintilla of evidence produced by the dontestants at the trial tending to invalidate the will, and the contestees produce no evidence except that of the probating of the will, may the trial court direct a verdict to set aside the will?

5. If it be determined that such an agreement is legal; that the executor is not a necessary party thereto; that his rights as executor were not prejudiced by his not being present at the trial because he would have had no right to subpoena or cross-examine witnesses tending to uphold the will; would the granting of a new trial be such a futile thing as to constitute an abuse of discretion?

It is fundamental in Ohio that an executor is by statute and court decisions a necessary and jurisdictional party in a will contest case. See Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683. The cases also hold that an executor is not united in interest with the other heirs at law and devisees. An executor being a necessary party, the question arises just what are his rights and duties? A perusal of the cases show that they vary widely from practically nil where he is representing himself ex officio to great responsibility where trusts are involved. A leading case is Ex'rs of Andrews v. Andrews' Administrator, 7 Ohio St. 143. There the question was whether an executor, ex officio, was duty bound to maintain against the heirs at law a contest of the validity of a will which he had undertaken to execute. The answer was no, there was no such duty. Texts and later cases recognize the propriety of an executor in taking an active part in a will contest case where there is a trust involved, where minor children are involved, where he is requested to do so by contestees, where perhaps they are widely scattered and have small individual interests, and where he has special rights to defend. See, generally, 22 Ohio Jurisprudence (2d), 442, Section 89; 95 C.J.S. Wills § 331, p. 185; Myers v. Hogue, 45 Ohio App. 330, 187 N.E. 127; Kern v. Heilker & Heilker, 56 Ohio App. 371, 10 N.E.2d 1005; In re Estate of Hammer, 99 Ohio App. 1, 130 N.E.2d 437, among others. However, his right to defend a will contest case simply to preserve his right and fees as executor is another matter upon which there is a dearth of authority. This proposition must be examined in the light of the questions herein first propounded.

Reverting to the first proposition, it is our judgment that a contract such as entered into by the devisees and heirs at law in the instant case is valid in Ohio and not contrary to public policy. The great weight of authority in the various states is to that effect. The proposition is discussed in 57 American Jurisprudence 653, Section 1005, where it is stated:

'The rule prevails generally, although not uniformly, that the beneficiaries under a will have the right and power to contract between themselves for a plan of distribution of their respective portions of the estate in a manner different from that provided in the will, and that persons who can control all interests given under a will have power to supersede the will by a contract that the property shall be treated as intestate property and partitioned as such. According to most authorities, an agreement between the beneficiaries under a will, for the purpose of avoiding litigation regarding their rights, to adopt a plan for the distribution of the estate different from that provided by the will is valid and enforceable, provided the rights of creditors are not infringed, and trust provisions are not modified or destroyed. Family agreements, settlements, or arrangements providing for the distribution of a testator's estate in a manner or in proportions other than those provided by the will have been upheld by the courts in most jurisdictions, at least where made after the testator's death. It has been observed in support of the rule that public policy is in favor of settlements which will insure harmony, peace, and good will among the living members of a family.'

There is a later annotation thereon in 42 A.L.R. 2d 1319 et seq., which shows the great majority of states favoring this proposition. The Wisconsin view, however, is to the contrary. The Ohio case of Madden v. Shallenberger, 121 Ohio St. 401, 169 N.E. 450, is cited therein as recognizing the validity of such an agreement generally but refusing to enforce it where a trust is involved. The Ohio position is set forth in 41 Ohio Jurisprudence 449, Section 294, where it is stated:

'It is generally held that parties to a will contest may settle or compromise their differences and that such settlements by parties sui juris, entered into in good faith, contravene no rule of public policy. There is some doubt as to whether this is the rule in Ohio.'

The doubt above expressed as to the Ohio rule is based upon certain language, obiter dicta, in the case of Walker v. Walker, 14 Ohio St. 157, 82 Am.Dec. 474. That was a case in which the trial court decided a will contest case on a demurrer to the answer in the face of the statute (now Section 2741.04, Revised Code) which required the issue to be tried by a jury. In the last paragraph of that opinion the court states:

'The court...