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In Bazo, the Supreme Court of Ohio found that the phrase "other interested persons," as used in former R.C. 2741.02, required an individual to have a direct pecuniary interest in a will contest action in order to be a necessary party.
Summary of this case from Cross v. ConleyOpinion
No. 78-1015
Decided June 13, 1979.
Probate — Will contest — Necessary party — Determined, how — Validity of will — Province of jury — Construction of will — Province of probate division.
APPEAL from the Court of Appeals for Hamilton County.
This cause originated in the Court of Common Pleas of Hamilton County as an action to contest the will of Louise Fischer. Appellee, Louise Bazo, testatrix's daughter and sole surviving heir, initiated this proceeding within the six-month period after the will was admitted to probate, as then prescribed by law. The basic ground for contest was that Harold W. Siegel (appellant herein) and Frieda Blocher had exerted undue influence on testatrix.
Because Louise Fischer died prior to January 1, 1976, the applicable statutory provisions are R.C. 2741.01 through 2741.09 and R.C. 2107.23 through 2107.25, then in effect but since repealed. For current analogous sections see R.C. 2107.71 et seq.
After listing a number of specific bequests, Mrs. Fischer's will devised her real and tangible personal property to her friend, Frieda Blocher, and Ms. Blocher's son, Harold Siegel. The residue of her estate was to be divided equally among appellee Bazo, Blocher and Siegel. The residuary clause also provided that, in the event appellee predeceased testatrix, $20,000 of her residuary interest would go to appellee's husband, Francis Joseph Bazo, with the remainder to be divided equally between Blocher and Siegel.
The only other provision of the will that is relevant to this cause is a "no contest" clause. It states, in essence, that, if any legatee or devisee should oppose the probate of this will or institute an action to contest it, his or her legacy or devise shall be forfeited, and "further that if any such contestant shall be a residuary legatee such person shall be deemed to have predeceased me."
In the trial court, appellant Siegel filed a motion for summary judgment, asserting that the court lacked jurisdiction because of a failure by appellee to name and serve Francis Bazo as a party defendant. The Court of Common Pleas found that Francis Bazo was a "necessary party" to this will contest, within the meaning of R.C. 2741.02, and that appellee failed to comply with R.C. 2741.09 by not naming him within the six-month statutory period, thus depriving the court of jurisdiction over this action. Accordingly, the Court of Common Pleas granted appellant's motion for summary judgment.
The Court of Appeals reversed on the basis that, in finding Francis Bazo to be a necessary party, the trial court had exceeded its jurisdiction by construing and applying the "no-contest" clause prior to determining the validity of the will. The cause was therefore remanded with instructions that: "(1) the court grant * * * Louise Bazo leave to amend her complaint to include Francis Bazo as a defendant; (2) the trier of fact make a determination on the merits of the will contest, and (3) if the will is found to be valid, questions regarding the efficacy and construction of its provisions be resolved by the probate division of the court of common pleas."
This cause is now before this court upon the allowance of a motion to certify the record.
Mr. William R. Hardy and Mr. Norman A. Murdock, for appellee.
Messrs. McCaslin, Imbus McCaslin and Mr. John M. McCaslin, Jr., for appellant.
It is settled law in this state that the right to contest the validity of a will "is subject to the statutory conditions precedent that the action `shall be brought' within six months after probate, and the interested persons `must be made parties' thereto." Fletcher v. First Nat. Bank (1958), 167 Ohio St. 211, paragraph two of the syllabus. These statutory provisions (R.C. 2741.02 and 2741.09) have been interpreted to require that "the interested persons must be so named and made parties within the period of six months." Id. paragraph three of the syllabus. See, also, Gravier v. Gluth (1955), 163 Ohio St. 232, and Holland v. Carlson (1974), 40 Ohio App.2d 325.
Here, Francis Bazo was not named and made a party to the will contest within six months after the will was admitted to probate. Thus, the issue confronting this court is whether he is an "interested person" within the purview of R.C. 2741.02, whose absence from this action deprives the trial court of jurisdiction.
In Steinberg v. Central Trust Co. (1969), 18 Ohio St.2d 33, paragraph one of the syllabus, we held that, "[a] person interested in a will, within the meaning of Section 2741.01, Revised Code, is one, who, at the time of the commencement of an action to contest a will, has a direct, pecuniary interest in the estate of the putative testator, * * *." (Emphasis added.) Previously, this court had determined that the phrases "[a] person interested," as used in R.C. 2741.01 and "other interested persons," as used in R.C. 2741.02 were "identical in meaning." Chilcote v. Hoffman (1918), 97 Ohio St. 98, 109. See, also, Sears v. Stinehelfer (1913), 89 Ohio St. 163, 166. Thus, in order for Francis Bazo to be a necessary party to this will contest, he must have had a "direct, pecuniary" interest in the estate of Louise Fletcher "at the time of the commencement" of the action to contest her will.
We find that Francis Bazo did not have such a direct, pecuniary interest at that time. The contingent interest he had under the terms of the residuary clause had failed since appellee had survived the testatrix. The only other possibility that could arise where Francis Bazo could inherit under the will was if appellee contested the will, and the Court of Common Pleas subsequently upheld its validity, and the probate division subsequently construed the no-contest clause as working a forfeiture of appellee's interest.
Only if that point was reached would Francis Bazo have a direct, pecuniary interest in the will of Louise Fletcher.
The trial court's incorrect finding that Francis Bazo was a necessary party necessitated a preliminary determination that the will was valid. In this respect the court invaded the province of the jury, which alone has the authority to decide the ultimate issue of validity.
See R.C. 2741.04. See, also, Monroe v. Barclay (1867), 17 Ohio St. 302, which held, inter alia, that the question of undue influence is to be determined by the jury.
By finding that Francis Bazo was a necessary party the trial court also acted improperly by construing the no-contest clause as working a forfeiture of appellee's legacy and substituting Francis Bazo, as a party interested in a portion thereof. While this might be a proper construction, in view of Bradford v. Bradford (1869), 19 Ohio St. 546, the responsibility for construing the provisions of a will rests with the probate division, not with the general division of the Court of Common Pleas.
See, e. g., Mears v. Mears (1864), 15 Ohio St. 90; Trapp v. Trapp (1962), 185 N.E.2d 85, and 55 Ohio Jurisprudence 2d 720-722, Section 327.
Since we find that Francis Bazo was not a necessary party to this will contest, it was improper for the Court of Appeals to have instructed the trial court on remand to grant appellee leave to amend to include Bazo as a defendant. We thus reverse the Court of Appeals as to that portion of its judgment, but affirm the judgment of the Court of Appeals in all other respects.
Judgment affirmed in part and reversed in part.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.