Opinion
No. 29375
Decided May 26, 1943.
Declaratory judgments — Rights, status or legal relations under contract determined, when — Section, 12102-2, General Code — Probate Court may entertain declaratory judgment action, although estate being administered — Section 12102-4, General Code — Jurisdiction not limited to cases where no other possible remedy available — Declaratory judgment to be refused where uncertainty or controversy not terminated thereby — Section 12102-6, General Code.
1. Under and by virtue of the provisions of Section 12102-2, General Code, any person interested in a written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected thereby, may have any question of the construction or validity arising under such contract determined and obtain a declaration of rights, status or other legal relations thereunder.
2. Under the provisions of Section 12102-4, General Code, any person interested as therein specified in the administration of the estate of a decedent may have a declaration of his rights or legal relations in respect thereto, including determination of "questions of construction of wills and Other writings." The Probate Court may entertain an action for a declaratory judgment although the administration of such estate is then pending.
3. The jurisdiction of the court in declaratory judgment actions is not limited to cases in which no other possible remedy is available. An action for a declaratory judgment may be alternative to other remedies in those cases in which the court, in the exercise of sound discretion, finds that the action is within the spirit of the Uniform Declaratory Judgments Act, a real controversy, between adverse parties exists which is justiciable in character and speedy relief is necessary to the preservation of rights that may be otherwise impaired or lost. ( Schaefer v. First National Bank of Findlay, 134 Ohio St. 511, approved and followed.)
4. Under the provisions of Section 12102-6, General Code, the court may refuse to enter a declaratory judgment or decree if the uncertainty or controversy giving rise to the proceeding would not thereby be terminated. ( Walker v. Walker, 132 Ohio St. 137, approved and followed.)
CERTIFIED by the Court of Appeals of Cuyahoga county.
This is all action for declaratory judgment and equitable relief. It was instituted in the Probate Court of Cuyahoga county.
The parties will be referred to as plaintiff and defendants as they appeared in that court.
Issue was made by the petition, tile answers of the several defendants and the reply of the plaintiff thereto.
The averments of the plaintiff's petition are substantially as follows:
The plaintiff is the surviving spouse of Agniska Radaszewski, who died on or about February 21, 1940, and the defendant, Mary Keating, is the duly appointed and acting executrix of her estate, having been appointed by the Probate Court of Cuyahoga county. The other defendants are the claimants to an interest in the estate of the deceased.
An inventory and appraisement of the estate of the deceased was filed on or about July 25, 1940, and was approved by the court August 21, 1940. The deceased was the owner of a half interest in real estate located at 4073 East 123rd street in the city of Cleveland, which was not set forth in the inventory. Plaintiff by statements of defendant Mary Keating, as executrix, and others, had been led to believe that he was the sole owner of that property and, as a result of the omission thereof from the inventory and the statements of the executrix and others, fraud was perpetrated upon the plaintiff in that if he had been apprised of the fact that he was not the sole owner of the property in question he would have elected to take under the law. Plaintiff further states that the exemption as set forth in the inventory is incorrect in that it does not include the interest of the deceased in the property located at 4073 East 123rd street, it not having been included in the inventory and appraisement filed. The plaintiff seeks a declaratory judgment declaring that:
"1. The approval of the inventory and appraisement heretofore filed in this court be set aside and held for naught;
"2. The defendant, Mary Keating, executrix, be ordered to file a new and proper inventory and appraisement of said estate;
"3. All entries made after the date of August 21, 1940, relating to said estate be vacated and held for naught;
"4. This court determine that because of the omission in the inventory, and statements made and relied upon, plaintiff now be permitted to take under the law;
"5. Plaintiff's exempted estate include the property located at 4073 East 123rd street, and for such other and further relief as plaintiff may be entitled to in the premises."
The answers of the several defendants admit the averments of the petition relative to the relationship and interest of the various parties and also admit that an inventory and appraisal was filed as stated in the petition, and that it does not include the interest of the decedent in the real estate in question. The defendant, Mary Keating, specifically denies that any fraud was perpetrated upon the plaintiff by reason of the omission in the inventory and appraisal or statements made by her, and denies that the election of the plaintiff to take under the will was in any way affected by the omission to include the interest of the decedent in the property in question because, prior to the filing of the inventory and appraisal and prior to the probate of decedent's will, plaintiff, with full knowledge and understanding, voluntarily and at his own suggestion had released the estate of the decedent from any further right or interest that he may have had, either by virtue of the will or as surviving spouse of the decedent.
Defendant Keating also denies that she led the plaintiff to believe that he was the sole owner of the property in question or that she made any statements to that effect, but that, on the contrary, the plaintiff had frequently asserted his sole ownership of that property, and the defendant, therefore, assumed and believed that the decedent had no interest therein, and she was unaware of the interest of the decedent in such property until her attention was directed thereto by plaintiff's counsel. Defendant avers that the plaintiff and his deceased spouse had been the owners of that property for a period of more than twenty years, during all of which time all matters pertaining to the maintenance of the property were attended to by the plaintiff, affording him complete knowledge of the fact that he and the decedent were the joint owners thereof.
As a second defense, defendant avers that following the death of the decedent the terms and provisions of her will were fully explained to the plaintiff and his rights under the law were fully explained to him and, after a full understanding of his rights under the will and under the laws of the state, the plaintiff, of his own volition and for a valuable consideration, on February 24, 1940, released and forever discharged the estate of the deceased "and her heirs and next of kin from any and all rights or interests that he had or may have in any part of her estate accruing to him either by virtue of law as her surviving spouse and by virtue of any provisions made for him in her will," which "release was executed by the plaintiff with full knowledge and understanding of its effect, he accepting and using the consideration therefor."
The answers of the defendants Louis W. Myron and Lawrence P. Myron contain admissions similar to those in the answer of defendant Keating, and denials and also affirmative averments similar in import to those contained in the answer of the defendant Keating.
By way of reply, the plaintiff states that if the court should find the plaintiff did release any rights or interests in such estate accruing to him either by virtue of law or as the surviving spouse of the deceased or by virtue of any provisions for him in her will, such release was without consideration, and that such release was obtained by the heirs and next of kin of the deceased by certain false and fraudulent representations therein set forth, and that if it should be found that the plaintiff did sign the written instrument dated February 24, 1940, his signature thereto was obtained without explanation of the meaning, import and effect thereof, and that his signature thereto was obtained by duress and undue influence, he having relied solely upon the instructions of the defendants in regard thereto.
A hearing upon the issues thus joined resulted favorably to the plaintiff. The court found "on or about February 24th, 1940, by erroneous and misleading representations made to plaintiff by defendants, the said defendants did obtain the execution by plaintiff of certain written instruments, to wit:
"(a) Election to take under the will, which instrument was undated and not acknowledged before a notary.
"(b) Receipt for $1,000, which instrument was undated.
"(c) Release of legacy and all claims, bearing date of February 24th, 1940."
The court further found that there was no consideration for the execution of such instrument and that plaintiff was not apprised of his statutory rights to take either under the law of descent and distribution or under the will of the deceased. The court further found that plaintiff did not receive the sum of $1,000 or any part thereof. The court thereupon ordered and adjudged that the instrument entitled "Election to take under the will" be set aside and declared null and void; that the written instrument purporting to be a receipt for $1,000 be set aside and declared null and void; that the written instrument entitled "Release of legacy and all claims," bearing date of February 24, 1940, be cancelled and set aside and declared null and void; and that the plaintiff be restored to all his statutory rights as surviving spouse with reference to the estate of the deceased, including the right to make and file his election to take either under the will or under the law of descent and distribution.
Upon appeal to the Court of Appeals on questions of law, the judgment of the Probate Court was reversed and the case dismissed "for the reason that the Probate Court was without jurisdiction to enter said judgment while the administration of said estate was pending in said court."
The court thereupon found its decision to be in conflict with the decision of the Court of Appeals of the Second Appellate District in the case of Pearson v. Pearson, 58 Ohio App. 503, 16 N.E.2d 837, and certified the record to this court for final determination.
Mr. William H. Rosenfeld, for appellant.
Mr. Louis W. Myron, for appellees.
The question of law presented to this court by the record is whether the Probate Court, upon the issue as presented by the pleadings, was authorized to entertain such action for a declaratory judgment notwithstanding the pendency of the proceedings in the administration of the estate involved, and particularly whether the court had jurisdiction in such action to consider, determine and declare the validity or invalidity of the written instruments and election in the estate then being administered in that court.
The Court of Appeals answered this question in the negative.
Jurisdiction to render declaratory judgments was first specifically conferred upon the Probate Court by Section 10501-53, General Code, and more fully in Sections 10505-1 to 10505-10, General Code. The provisions of all these sections were embodied in the Probate Code (effective January 1, 1932, 114 Ohio Laws, 335, 362).
It is significant that in this state declaratory judgment jurisdiction was first conferred only upon Probate Courts. It was extended to "courts of record within their respective jurisdictions" by the Uniform Declaratory Judgments Act, effective October 10, 1933 (115 Ohio Laws, 495). Sections 10505-1 to 10505-10, General Code, were thereby repealed. The General Assembly had full authority under the Constitution to enact the Uniform Declaratory Judgments Act and to make it applicable to the Probate Court. Section 8, Article IV of the Constitution, provides as follows:
"The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses and for the sale of land by executors, administrators, and guardians, and such other jurisdiction, in any county or counties, as may be provided by law."
The Uniform Declaratory Judgments Act is contained in Sections 12102-1 to 12102-16, inclusive, General Code. Under the provisions of Section 12102-2, General Code, "Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a * * * contract * * * may have determined any question of construction or validity arising, under the * * * contract * * * and obtain a declaration of rights, status or other legal relations thereunder."
Under the provisions of Section 12102-1, General Code, the court has such power "whether or not further relief is or could be claimed * * * and such declarations shall have the force and effect of a final judgment or decree."
Section 12102-4, General Code, reads:
"Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto: * * *
"(c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.
Section 12102-12, General Code, reads:
"This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered."
The question here presented involves the interpretation and application of these statutes. The Declaratory Judgments Act has heretofore been held by this court to provide an alternative remedy. The following language appears in the syllabus of the case of Schaefer v. First National Bank of Findlay, 134 Ohio St. 511, 18 N.E.2d 263:
"1. An action for a declaratory judgment may be alternative to other remedies in those cases in which the court, in the exercise of sound discretion, finds that the action is within the spirit of the Uniform Declaratory Judgments Act and a real controversy between adverse parties exists which is justiciable in character and speedy relief is necessary to the preservation of rights that may be otherwise impaired or lost.
"2. While a granting of a declaratory judgment is within the sound discretion of the court, the jurisdiction to grant such a judgment is not limited by the terms of the statutes to those cases in which no remedy is available either at law or in equity."
These conclusions are supported by Borchard on Declaratory Judgments (2 Ed.), 315, 316, and cases there cited.
It must be conceded that there is a lack of uniformity in the decisions, the courts of some jurisdictions holding that rights may not be declared if the petitioner has another remedy available in a court of law or of equity. See ` Kariher's Petition (No. 1), 284 Pa. 455, 131 A. 265; Morgan v. Dietrich, 179 Md. 199, 16 A.2d 916; Brindley v. Meara, 209 Ind. 144, 198 N.E. 301, 101 A. L. R., 682.
In many cases however, wherein it was determined that an action for declaratory judgment would not be entertained, the records disclosed that such judgment or decree if rendered would not terminate the controversy and the adverse action in such cases was based upon the ground stated.
In other cases, rulings adverse to the entry of a declaratory judgment were based upon the ground that a specific remedy deemed exclusive was provided by statute, such as, for instance, a direct appeal from an alleged invalid levy of taxes or assessments.
There are limitations upon the use of declaratory judgments which are express and binding. Section 12102-5, General Code, provides that "The enumeration in sections 2, 3 and 4 does not limit or restrict the exercise of the general powers conferred in section 1 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty."
This court in the case of Walker v. Walker, 132 Ohio St. 137, 5 N.E.2d 405, had occasion to consider and apply Section 12102-6, General Code, which provides that "The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." From the opinion of Weygandt, C.J., at page 139, we quote the following very pertinent statement: "The Declaratory Judgment Act is a salutary, remedial measure and should be liberally construed and applied, but, as in the instant case it does not require a court to render a futile judgment that 'would not terminate' any 'uncertainty or controversy' whatsoever."
It is quite generally held that the jurisdiction of the court in declaratory judgment actions is not limited to cases in which no other remedy is available. In other cases, as stated in the opinion in Stewart, Gdn., v. Herten, Gdn., 125 Neb. 210, 249 N.W. 552, with the citation of numerous supporting cases, the rule announced is in substance that "proceedings for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided for the character of the case in hand." (Italics ours.)
This pronouncement is in accord with the view expressed in the Schaefer case, supra, and with our conclusion in this case. It is quite apparent that in the situation presented in this case, there is not "another equally serviceable remedy."
In the instant case, the Probate Court was called upon to determine whether a declaratory judgment would terminate the uncertainty or controversy giving rise to the proceeding. If it be determined the relief would be ineffective, the court would have had full power and it would have been its duty to refuse to entertain the case. If, under the jurisdiction conferred upon the Probate Court to render declaratory judgments, such authority could not be exercised in this proceeding, it is difficult to see where it would be available.
Section 12102-4, General Code, specifically confers the right to have any question determined which arises in the administration of an estate. The Probate Court has exclusive jurisdiction in the administration of estates. It is contended, however, that the Probate Court did not have jurisdiction to render a declaratory judgment while the administration of the estate was pending. Certainly the Probate Court would not have jurisdiction to determine the matters at issue after the administration had been fully settled and the estate closed. It would then follow that if the Probate Court did not have jurisdiction to act by way of declaratory judgment before the pendency of administration proceedings or during the pendency of administration proceedings or after the termination of proceedings in the administration of the estate, then the Probate Court would not have declaratory judgment jurisdiction in any respect whatever with reference to proceedings in the administration of an estate. Certainly it must be concluded, as contended by counsel for the appellant, that the only time when the Probate Court does have the power to declare rights and status and the legal relations of the parties interested as heirs, executors, etc., in an estate is after the administration of the estate has been commenced and while it is still pending.
This case is one peculiarly for the application of the jurisdiction of the Probate Court in the matter of the issuance of a declaratory judgment. The judgment in this case will be res judicata on the question of the right to elect. If appellant had filed his election to take under the law after the nine-month limitation had expired, unless this remedy is available, appellee might have disregarded the election, distributed the estate and thus required the appellant to contest the distribution by exceptions to the account of the executrix, at which time the property would have been in the hands of the distributees. The prevention of just that sort of situation is attained by the exercise of declaratory judgment jurisdiction, and it was to serve such purpose that the Uniform Declaratory Judgments Act was passed.
The judgment of the Court of Appeals dismissing the case on the ground that the Probate Court was without jurisdiction in the premises is reversed and the cause remanded to the Court of Appeals for further proceedings.
Judgment reversed and cause remanded.
WEYGANDT, C.J., HART, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.
While it is our opinion that the Probate Court properly entertained this proceeding for a declaratory judgment for the reasons stated by Judge Matthias in his opinion, we would not wish the impression to be gained that courts should assume jurisdiction generally of actions for declaratory judgments when there is pending at the time of the commencement of such an action, another action or proceeding to which the same persons are parties and in which are involved or may be adjudicated the identical questions that are presented in the declaratory action. Section 12102-6, General Code; 16 American Jurisprudence, 295, Section 22; 135 A. L. R., 934, annotation; 1 Corpus Juris Secundum, 1027, Section 18 (8).
BELL, J., concurs in the foregoing concurring opinion.