Seeds v. Seeds

Full title: SEEDS ET AL. v. SEEDS ET AL

Court: Supreme Court of Ohio

Date published: Mar 15, 1927

156 N.E. 193 (Ohio 1927)

156 N.E. 193

Opinion

No. 19941

Decided March 15, 1927.

Wills — Forged instrument probated by perjured testimony — Next of kin not notified and return of service falsified — Beneficiary a trustee ex maleficio for next of kin, when — Limitation of actions — Equitable action lies within four years after discovering fraud, when — Proceedings to open judgment in original action not exclusive — Section 11631, General Code — Cumulative right of defrauded party to maintain independent equitable action — Action to set aside judgment inadequate where property transferred, when — Fraudulent beneficiary a fiduciary and trustee ex maleficio, when.

1. Where an instrument in form a will has been created by forgery, and the same has been probated by perjured testimony, and the next of kin have not been notified of the probate proceedings, but the return of service upon the next of kin is falsified, and where the party procuring such forged instrument, and who has conspired to probate the same as a will by false testimony, is the sole beneficiary named under the alleged will and has later by legal proceedings procured a transfer of the legal title to such property to his own name, he will be held to be a trustee ex maleficio for the benefit of the next of kin who would have been entitled to the property in the event of intestacy.

2. Where the next of kin have no notice or knowledge of such fraud, and because of ignorance of the same fail to bring an action to contest such alleged will within the period of one year after they respectively arrive at majority, they may maintain a suit in equity within the period of four years after discovery of the fraud.

3. The right to prosecute further proceedings in the original action on the ground that there was fraud in obtaining the judgment or order is not exclusive. The defrauded party may maintain an independent suit in equity to obtain relief, and this right is cumulative to the provisions contained in Section 11631, General Code.

4. Where a party obtaining property by such fraudulent means transfers the same to a third person without consideration and the legal title is held by such third person before suit begun by the next of kin, an action at law to set aside the judgment is inadequate. The necessity to make new parties becomes additional justification for maintaining a suit in equity.

5. Where the fraudulent beneficiary is the husband of the decedent and the father of the next of kin, he stands in a fiduciary relation toward the next of kin, and this relationship imposes upon him the legal duty to protect their interests, and by reason of the violation of that duty he is created a trustee ex maleficio.

ERROR to the Court of Appeals of Franklin county.

This cause originated in the court of common pleas of Franklin county, Ohio, as a suit in equity to declare a trust ex maleficio, to procure an accounting as to rents and profits arising out of the property sought to have subjected to the trust, to have a receiver appointed, to secure judgment in the amount found to be due, if any, to restrain defendants from disposing of the property or the rentals or profits or income therefrom, and to order defendants to transfer the possession and title of such property to plaintiffs or in lieu thereof to have the decree of the court operate as such transfer. The case was disposed of in the court of common pleas and in the Court of Appeals by sustaining a demurrer to the third amended petition. The cause was admitted to this court upon allowance of a motion to certify the record.

The petition alleges, in substance, that the plaintiffs are the daughters of James W. Seeds, defendant, and Estella Seeds, his wife, now deceased. Plaintiffs were minors at the time of the occurrences complained of, Leona having become of age in 1918, and Gladys in 1916. Estella Seeds died September 13, 1913, owning valuable real and personal property. The petition alleges that on the day prior to her death, and while she was unconscious, her husband, James W. Seeds, and one Ritter took a paper writing purporting to be a will prepared by said husband to the room of Estella Seeds at the hospital, and took her hand and made her mark for her at the end of said will at the place where her signature was supposed to be, no one being present in the room at the time except Ritter and Seeds and the nurse attending the wife; that thereafter on October 9, 1913, the will was probated by the false and fraudulent testimony of James W. Seeds, F.R. Ritter, and U.R. Southard; that at the time of such probate Leona and Gladys, the daughters, respectively 13 and 15 years of age, who were required to be served with notice of such probate, were not in fact served, but notices were delivered to James W. Seeds and accepted by him, as guardian of said minor children, and return thereof made in writing to the probate court as though the same were properly served. The petition further alleges that all of the testimony before the probate judge was untrue and given for the purpose of deceiving and defrauding the court, and to obtain the probate of a false and fraudulent will, by the provisions of which the said James W. Seeds was given and bequeathed all of the property of the said Estella Seeds; that the same was done with the further intent to deprive the daughters, plaintiffs in this action, of their share of their mother's estate, and that they were thereby, in fact, disinherited, there being no other children of Estella Seeds; that as such guardian he never filed any contest upon said will, nor has he in any manner protected the rights or interests of his daughters in said property.

Thereafter James W. Seeds was appointed executor, and he represented to the court that Estella Seeds died without possessing any money or personal property above the value of $500, while, in truth and in fact, she did own and possess personal property largely in excess of that amount. Thereafter, real estate, which is now alleged to be of the value of $40,000 was by virtue of the probate of said will and appropriate proceedings pursuant thereto transferred to the name of James W. Seeds upon the land records of Franklin county. It is further alleged that none of said fraudulent acts was discovered by said plaintiffs until within four years before this action was commenced.

In a second cause of action it is alleged that the defendant Nancy Jane Seeds, on May 25, 1918, intermarried with the said James W. Seeds, he being at the time a widower in ill health, weak in mind, and mentally incompetent to know or understand what he was doing, and it is further alleged that the marriage itself was fraudulent by reason of the seductions of the said Nancy Jane Seeds, and further that by like seductions, and by exciting the physical passions of the said James W. Seeds, she not only procured him to enter into the form of a marriage, but also to give and deed to her all the property, real and personal, which he had acquired from Estella Seeds; that the marriage took place May 20, 1918, and the transfer of property was made December 18, 1918; and that all of these fraudulent acts and proceedings were likewise unknown to these plaintiffs until within four years before this action was commenced.

Mr. Matthew L. Bigger and Mr. Edward J. Greely, Jr., for plaintiffs in error.

Messrs. Vorys, Sater, Seymour Pease, for defendants in error.

MARSHALL, C.J.

In this case we are not troubled by disputed issues of fact. The demurrer to the petition admits its well-pleaded allegations. The alleged will of Estella Seeds must therefore be, for the purposes of the discussion, admitted to be a forgery and a nullity, unless validity and potency have been given to it by its fraudulent probate and the other probate proceedings of equally fraudulent nature whereby the legal title to the property was lodged in James W. Seeds, the party who conceived and executed the fraud. The difficulties of the case are greatly reduced by the fact that the property has not passed into the hands of innocent purchasers. Taking the allegations of the petition as true, Nancy Jane Seeds, the present wife of James W. Seeds, acquired no better title than that of her grantor, she having paid no consideration therefor. The question of the sufficiency of this petition must therefore be determined upon the sole legal question whether James W. Seeds, the forger of the will, can take advantage of his own wrongdoing and actively defraud the children and heirs at law of Estella Seeds, they being also his own lawful children.

Counsel for the defendants claim that the controlling feature of the case lies in the fact that James W. Seeds employed the instrumentality of a forged instrument, which was in form a will and which was oil its face in due form and in full compliance with the statutory requirements as to execution, which was afterward probated in apparent faithful compliance with the statutory provisions relating to probate, and all other proceedings relative to the transfer of the property being in apparent good form; and in the further fact that the statutory period had elapsed wherein an action might have been brought, under Section 10531, General Code, to contest the will. That statute provides:

"If, within one year after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding, saving, however, to infants, and persons of unsound mind, or in captivity, the like period after the respective disabilities are removed."

Section 12087, General Code, makes similar provision.

The younger of the two children arrived at her majority April 27, 1918, and the time within which she could have brought an action at law to set aside the will, under Section 10531 or 12087, expired April 27, 1919.

This suit was not brought to set aside the will, but, on the contrary, the petition treats the will as having been established and seeks to have the wrongdoer in possession of the property declared to be a trustee ex maleficio for the benefit of the heirs at law.

Former decisions of this court have declared that a will becomes forever binding unless set aside as a result of proceedings instituted within the time and in the manner required by statute. It is not necessary in this case to inquire into the soundness or unsoundness of those decisions. While it is true that the plaintiffs in this case cannot recover the property of their mother without impeaching the will itself, and without taking away from the beneficiary named in the will itself, it is not necessary, under the well-settled rules governing courts of chancery, to challenge and overturn all the proceedings whereby the forged will was given color of validity, and whereby the naked legal title was vested in the wrongdoer. The only issues which could have been raised in a suit to contest the will were the manner and form of its execution, the mental capacity of the testatrix, her freedom from restraint and influence, and whether or not she was of legal age. Assuming, without deciding, that the way to an action at law to contest the will is no longer open, it is insisted by plaintiffs that a court of chancery has power to declare the trust. After the alleged will was probated, the subsequent proceedings resulting in the distribution of the estate and transfer of legal title to James W. Seeds were not questioned either upon appeal or error, and the statutory time for such error or appeal has likewise expired. Assuming, without deciding, that those proceedings have become a finality, it is again insisted that a court of chancery has power to declare a trust, notwithstanding such finality.

Section 11224, General Code, provides that an action for relief on the ground of fraud must be brought within four years after the cause thereof accrued, but it further provides that the cause shall not accrue until the fraud is discovered. This being a special section relating to fraud, it is open to question whether this section is a limitation upon Sections 10531 and 12087. But in the view we take of this case, it is not necessary to consider or decide such question. This controversy can be disposed of upon broad principles of chancery jurisprudence, without disturbing the will or its probate or the subsequent proceedings for transfer of legal title.

The Constitution of Ohio, in Section 16 of the Bill of Rights, provides:

"All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

It is therefore open to serious question whether the legislature would have any power to give validity and finality to an instrument admitted to be a forgery, except to provide a reasonable limitation upon the time of bringing such action. Evidently the legislature has sensed this difficulty, because in providing a limitation for actions on the ground of fraud it has given the defrauded parties the period of four years to bring such action after discovery of the fraud.

In courts of equity, where laches is an issue, the matter is generally determined by applying the analogy of the statute of limitations, and where a statute of limitations has been enacted it becomes a bar if the statutory period has run. The early decisions of this court are in line with general authority on this subject.

In Ormsby, Jr., v. Longworth, 11 Ohio St. 653, the action was not brought until 35 years after a mistake was made, but within 21 years after discovery of the mistake. This being an action in which adverse possession was an issue, the court held that the analogy of the statute of limitations would apply and that the time would not begin to run until after discovery of the mistake, even though no fraud was shown. The same court, in the case of Longworth v. Hunt, 11 Ohio St. 194, declared the same doctrine of analogy and applied it in a case where it was sought to have a deed set aside on the ground of fraud in its procurement, and it was held that the time begins to run only from the time of the discovery of the fraud. In the course of the opinion, at page 201, it was stated by Brinkerhoff, C.J.:

"In cases of which courts of equity, and courts of law, have concurrent jurisdiction, the former act in obedience to statutes of limitation; but in cases of which equity has exclusive jurisdiction, they act only in analogy to them. This case is of the latter kind; for, the bar of the statute being complete at law, a court of equity, alone, can give relief."

The only element lacking to constitute complete analogy between those cases and the case at bar lies in the fact that those cases did not involve the impeachment of a judgment. Numerous other cases have, however, been decided by this court where it was sought to impeach a judgment. The earliest important case is that of Lockwood v. Mitchell, 19 Ohio, 448, 53 Am. Dec., 438, in which it was held that where a party in a foreclosure suit had obtained a decree for a larger sum than was actually owing, and had by fraud and circumvention prevented the mortgagor from making a defense, the party injured might proceed by original bill to set the decree aside; and that this might be done without tender of the amount due. The case of Long v. Mulford, 17 Ohio St. 484, 93 Am. Dec., 638, involved many issues similar to those in the case at bar. It declared that the fiduciary relation applies to all cases where influence is acquired and abused, and confidence reposed and betrayed, even though the case may not be of a strictly fiduciary character. It further declares that where a party having an infant under his influence and control, against whom he is prosecuting a suit, against which no defense is made for the infant, intends to insist on the rights of an ordinary adversary, he should first surrender the advantages arising from his fiduciary or quasi fiduciary character. That case further declares that:

"A decree against an infant may be impeached for error by original bill; and what would have been a good cause of action to sustain an original bill is a good cause of action under the Code."

That case also declares:

"Lapse of time to bar the rights of the infants does not, in such case, commence until their discovery of the wrong; and the burden of showing such knowledge as to make them chargeable with laches rests on the defendants."

In the course of the opinion by White, J., we find the following, at page 508 (93 Am. Dec., 638):

"It is true, over 18 years elapsed from the taking of the decree to the commencement of this suit; but the plaintiffs were very young at the time of taking the decree; and no laches can be imputed to them until discovery, the delay in which is accounted for, in the present case, by the situation of the plaintiffs and their relation to the defendants."

Again, at page 509 (93 Am. Dec., 638):

"There is another ground upon which the right of the plaintiffs to relief, may, perhaps, be safely placed; and that is, by raising in the defendants an equitable or constructive trust in respect to the property in controversy.

"Trusts of this description depend upon the conclusions of law independently of contract, and often arise in cases where there was no intention to create a trust on the part of any of the parties concerned; generally speaking, they are imposed in invitum. 1 Spence's Eq., s. p., 509. A court of equity will not permit any person standing in a fiduciary situation, or who, from the relation in which he stands to another, is capable of exercising an undue influence over his mind, to derive profit from any transaction which takes place during the continuance of such fiduciary character in the one case, or which may be supposed to have taken place by reason of such opportunities of undue influence in the other. Id., s. p., 626."

Another important case declaring the same principle is Coates v. Chillicothe Branch of State Bank, 23 Ohio St. 415. That case in unmistakable language declares that the power given to courts of record by the Code to vacate or modify their judgments after term does not confer original jurisdiction, but that the power thus conferred does not limit the right to impeach a judgment or decree by original action in a proper case. The court then stated in the opinion, at page 432:

"Where the case is such that relief is properly sought, other than that which may be obtained in the case in which the judgment or decree is rendered, and the impeachment of the judgment or decree is only necessary to the further relief sought, an original action is the proper remedy."

In Michael v. American Nat. Bank, 84 Ohio St. 370, 95 N.E. 905, 38 L.R.A. (N.S.), 220, the court refused to vacate and open up a judgment, because it was not found that the successful party had been guilty of any fraud or circumvention. The court did say, however, at page 380 of the opinion (95 N.E. 907):

"Where a judgment is attacked for fraud the statutory remedy is not exclusive but cumulative. This principle is well settled in Ohio. Long v. Mulford, 17 Ohio St. 485 (93 Am. Dec., 638); Coates v. Bank, 23 Ohio St. 415; Darst v. Phillips, 41 Ohio St. 514."

In Darst v. Phillips, 41 Ohio St. 514, a judgment was successfully impeached in an original action, on the ground that there had been no service of process or notice, but, on the contrary, that a judgment had been entered upon a cognovit. In the petition it was alleged that the note had been paid before judgment was taken, and that Darst had therefore fraudulently obtained the judgment. The opinion cited the following cases with approval: Long v. Mulford, supra; Coates v. Bank, supra.

In the case of McEntire v. McEntire, 107 Ohio St. 510, 140 N.E. 328, it was declared, at page 527 (140 N.E. 333) of the opinion, that a judgment for alimony can be impeached and therefore modified where fraud is shown in obtaining the judgment.

All these cases very clearly and conclusively establish the power of a court of equity, in an independent action, to impeach the solemn judgment of a court of law, where the judgment has been obtained by fraud and circumvention.

It is true in the instant case that Nancy Jane Seeds was not a party to the action in the probate court, but she acquired her title from the party who is alleged to be the perpetrator of the fraud, and it appears from the allegations of the petition that she paid nothing for the title, and her rights therefore cannot rise higher than those of her grantor.

Counsel for the defendants have stressed the claim that plaintiffs had a legal remedy which they failed to exercise within the time limited. A petition filed in the original proceeding to open up the judgment would not afford complete and adequate relief in the instant case, because of the fact that there has been a transfer of the legal title to the real estate and it would be necessary that Nancy Jane Seeds be made a party defendant, which could not have been done in a petition filed in the original suit.

If this petition were, as claimed by defendants, an action to contest a will, it is quite clear that it could not be maintained, because wills and contests of wills are purely statutory, and the legislature, which gave the right to make a will and has also given the right to contest it, has fixed a definite limitation within which such a suit must be brought. This suit, not having been brought within the time limited, could not be maintained as a will contest. It does not follow that, because the effect of this suit, if successful, would result in a different course of devolution of the property, it must be regarded as a will contest. It has already been seen that judgments of courts induced by fraud and circumvention may be set aside, and there can be no reason why proceedings in the probate court relating to wills should have a greater degree of sanctity or finality than other proceedings in other courts. It has further been shown herein that judgments may be set aside either under Section 11631, General Code, on the ground of fraud, by further proceedings in the same suit, or that a cumulative remedy is provided in equity for proceeding in an independent suit to set the same aside. To these two remedies it is well settled that a third is added; viz., to declare a trust ex maleficio when the person who holds the legal title has acquired the same by circumstances of fraud and circumvention whereby the court has been defrauded and imposed upon, and in such a case equity becomes the artificial conscience of the malefactor. Where a court has been induced by fraud and imposition to enter a decree which would not have been entered upon a full disclosure of fact, a court will fasten it upon the conscience of the owner of the legal title so as to convert him into a trustee for the benefit of the parties who have been defrauded and would have received the title under an honest disclosure of the facts. This was the pronouncement of this court in the case of Long v. Mulford, 17 Ohio St. 484, at page 509. This principle is one of great antiquity. It was established by the high court of chancery in England in numerous cases, and has been applied to fraudulent wills. The leading case on this subject is Barnesly v. Powel, 1 Vesey, Sr., 284, 27 Eng. Rep. Reprint, 1034, decided in 1749. The will had been probated, and one of the inducements to probate was a forged proxy of the next of kin, giving consent to the probate. Upon submission of this issue, the will was set aside. This decision has been cited with approval by the Supreme Court of the United States in the case of Broderick's Will, 88 U.S. (21 Wall.), 503, 22 L. Ed., 599. In that case the court refused to set aside the will because of the peculiar facts alleged and proved, but declared, semble, that:

"Where the courts of probate have not jurisdiction, or where the period for its further exercise has expired and no laches are attributable to the injured party, courts of equity will, without disturbing the operation of the will, interpose to give relief to parties injured by a fraudulent or forged will against those who are in possession of the decedent's estate or its proceeds, mala fide, or without consideration."

In that case the court refused to give relief, because it appeared that the delay in bringing the suit was not due to ignorance of the fraud, or any attempt to conceal it, but to ignorance of the decedent's death and all of the open and public facts of the case. The bill of the complainants showed that the fraud was a matter of public notoriety for more than eight years before the bill was filed.

On the other hand, the case of Gains v. Chew, 43 U.S. (2 How.), 619, 11 L.Ed., 402, is definitely in point. The legal issue in that case was whether the matter should be determined in a court of law, or whether jurisdiction could be entertained in chancery. A will had been made in 1811, and a new will made in 1813 providing a different devolution of property, and the beneficiaries under the first will suppressed the second, presented the earlier will to the court of probate, had it proved, and proceeded to administer the property, several pieces of property being sold. Many years thereafter the beneficiary under the second will learned of its existence and of the fraud practiced upon the court, and brought a suit in equity claiming to be the devisee, praying for an accounting from the beneficiaries under the probated will. The court declared that it was not necessary to probate the will of 1813, and that the court could give relief without decreeing the revocation of the first will. It was further declared that, inasmuch as the controversy was complicated by numerous parties and the various circumstances under which purchases of parcels of property were made, adequate relief could not be obtained in a court of law. It was further declared:

"If the fraud shall be established against the executors, and a notice of the fraud by the other defendants, they must be considered, though the sales have the forms of law, as holding the property in trust for the complainants. Under these circumstances a suit at law could not give adequate relief. A surrender of papers and a relinquishment of title may become necessary. The powers of a court of chancery, in this view, are required to do complete justice between the parties."

At page 650 ( 11 L.Ed., 402) of the opinion we find the following:

"One man possesses himself wrongfully and fraudulently of the property of another; in equity, he holds such property in trust, for the rightful owner."

In Patterson v. Dickinson, 193 F., 328, the Circuit Court of Appeals of the Ninth Circuit, in 1912, cited the English cases with approval and declared the principle of trusts ex maleficio. That case is a pertinent authority by reason of the facts upon which it is based. The will had been probated in Missouri, and an action begun to contest the same. Thereafter, and while the contest was pending, the will was proved in California where certain property of the testator was located, the court in California knowing nothing of the pending contest in Missouri. The proponent of the will in California was necessarily a party to the contest, and therefore had full knowledge of the contest, and had concealed the fact of the pending contest from the California court. The bill prayed that the proponent of the will be adjudged to be an involuntary trustee for the benefit of the next of kin, and for an accounting. The lower court sustained a demurrer to the petition, but the Court of Appeals reversed and remanded, with instructions to overrule the demurrer and for further proceedings.

It will thus be seen that the Supreme Court of the United States has followed the High Court of Chancery of England in maintaining an action in equity to declare a trust ex maleficio, after probate, and after expiration of the period when a contest could be filed, to have the fraudulent beneficiaries declared to be trustees for the benefit of the next of kin.

The High Court of Chancery of England should be accepted as persuasive authority in this class of cases, because the source of our equity jurisprudence is found in the extraordinary jurisdiction of the High Court of Chancery of England, and it has been expressly held by the Supreme Court of the United States, in a number of cases, and by the courts of last resort in at least seven of the states that equity jurisprudence in the United States generally embraces the same matters of jurisdiction and modes of remedy as existed in that court. In many other states of the union where this has not expressly been held, the principle has become impliedly established by reason of the decisions of the High Court of Chancery of England being frequently cited with approval and followed.

The petition in the instant case contains allegations which state a cause of action, and, if proved, entitle the plaintiffs to the relief sought. If it be said that the sanctity, the solemnity, and the finality of judgments and decrees of the courts will thereby be destroyed, it may be answered that fraud and imposition upon the courts have always been grounds for setting aside their judgments and decrees; that where decrees are entered by practice of fraud and imposition upon the courts, whereby certain persons have enriched themselves at the expense of others, it is the peculiar province of a court of chancery to right the wrong. The only protection to which the decrees and judgments of the courts are entitled is to be found in the quantum and character of proof which are necessary to be found in establishing a case of fraud and imposition.

The judgments of the court of common pleas and of the Court of Appeals must be reversed, and the cause remanded to the court of common pleas for further proceedings.

Judgment reversed.

DAY, ALLEN and KINKADE, JJ., concur.

JONES, J., dissenting.

We are unable to agree with the conclusions of this court announced in its syllabus. The conclusions reached are not consonant with the previous decisions of this court, nor are they in accord with the prevailing decisions of courts in other states, which have adopted statutes similar to our own, relating to the binding effect of probated wills.

The will under consideration was executed September 12, 1913, and probated on October 14, 1913. The youngest child became of age on April 27, 1918, a period of a little more than four years and six months after the probate of the will. She had the statutory period of one year, after her disability was removed, to institute a proceeding to contest the will. This she did not do. She waited more than four years before filing the suit on June 9, 1922. She then instituted this proceeding in equity, which has as its basis an attack upon the probated will. It is impossible to escape the deduction that if relief is obtained in this equitable proceeding it can be obtained only by establishing that the execution of the will and its subsequent probate were based upon false testimony of witnesses attending its execution. Nor is it possible to escape the conclusion that this attack by an independent suit in equity is a collateral attack upon the judgment of the probate court. We do not deny the general equitable principle that the beneficiary of a fraud ordinarily may be held to be a trustee ex maleficio. But we are of the opinion that this doctrine cannot apply where the gravamen of the equitable action rests upon a collateral attack upon the proceedings of a court which has been given exclusive jurisdiction in all matters pertaining to the probate of wills; nor can such equitable suit be maintained where legal statutory remedies have been provided, whereby the identical issues here presented are triable to a court and jury under our contest statutes. It is remarkable that in the disposition of this case no reference has been made to former decisions of this court where the Ohio contest statutes were under consideration.

Section 12087, General Code, provides that an action to contest a will shall be brought within one year after its admission to probate, but provides that the year may be tolled until the period of disability is removed. The Legislature, however, no doubt for the purpose of forestalling stale equities, passed Section 10531, General Code, which provides:

"If, within one year after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding." (This section also extends the period of limitation by permitting the proceeding to be brought within one year after disability is removed.)

This latter statute came under the consideration of this court in Bailey v. Bailey, 8 Ohio, 239. Judge Hitchcock, in delivering the opinion, stressed this statute and alluded several times in italics to the clause, "the probate shall remain forever binding." He alluded to the fact that this section was first adopted on February 18, 1808, and in the course of the opinion said, at page 246:

"Unless contested in the manner prescribed, it would seem to follow that so long as the probate remains unimpeached, any instrument recorded by order of the probate court, purporting to be a will, must be held to be available for the purposes intended to be effected by such instrument."

And further on, referring to parties to the suit, he says:

"They are now attempting to impeach the validity of this will, the probate remaining in full force. They are attempting to do that indirectly, which the statute provides shall be done directly. * * * And as the Legislature have declared the effect of that act, unless the same shall be impeached within a specified time, and in the prescribed form, we entertain the opinion that it cannot be impeached after that time, nor in any other form. * * * It is a judicial proceeding, and must be set aside in the manner provided. Unless so set aside, it 'shall be forever binding.' "

The same section of the Ohio statute was considered by this court nearly 40 years later in the case of Mosier v. Harmon, 29 Ohio St. 220, where an attempt was made to review the testimony under the order of probate by proceedings in error. This court held, in the second proposition of the syllabus:

"The mode of contesting the validity of a will thus admitted to probate, as provided by Section 24 of the probate act, and Section 19 of the wills act, is conclusive."

Section 19 of the wills act is now Section 10531, General Code. The judge delivering the opinion in the Mosier case again adopts the views that this court held in the Bailey case thirty-nine years previously. In the course of the opinion, at page 225, it is again said:

"While an instrument in the form of a last will and testament, that has been probated and recorded as a will, whether it is truly such or not, is permitted to remain unimpeached, the nineteenth section above quoted gives it the effect of a valid will, which, if not contested within the time limited, will become binding as such forever. This construction was required in order to save controversies in respect to wills after the lapse of years, in which witnesses may have died or gone to parts unknown, and also in order to secure from litigation and controversy persons who hold title to lands by devise or under those who took by devise; and in view of these and kindred considerations, the construction is neither unreasonable nor unjust. We are therefore of the opinion that the only mode of contesting the validity of a will that has been admitted to probate is that provided by the two sections last above quoted. If those interested neglect to pursue the mode of contest there pointed out, the considerations above noticed, drawn from the sections quoted, require that their rights should be forever barred."

The same statute was also alluded to in the case of McVeigh v. Fetterman, 95 Ohio St. 292, 116 N.E. 518. After quoting the statute, the judge delivering the opinion said:

"Under the mandatory provisions of this section a will duly probated is thereby fully established; and, under the clear and unequivocal terms of the statute above quoted, it shall be forever binding unless set aside as a result of proceedings instituted in the manner and within the time required by statute."

Further on he quotes from Mr. Justice Bradley in the Broderick's Will case, 88 U.S. (21 Wall.), 503, 22 L. Ed., 599, as follows:

"The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; * * * and that the result attained should be firm and perpetual."

Then, in the course of the opinion, the judge said:

"This policy of facilitating the settlement of estates has been clearly manifested by legislative enactment in this state, and the statutes upon that subject should, in so far as possible, be so construed as to further that policy and fully accomplish the obvious purpose of their enactment."

It is stated both in the syllabus and the opinion of the present case that the will under consideration was obtained by fraud and forgery. It may have been a false will, and one obtained by fraud, under the allegations of the petition, but it was not a forgery as that term is commonly known, nor does the petition allege the will to have been forged. In order that there may be no mistake about the situation, we will quote from the allegations of the petition in that connection. The petition alleges that on the day prior to the testatrix's death her husband, James W. Seeds, and F.R. Ritter "took a paper writing, purporting to be a will prepared by James W. Seeds to the room of said Estella Seeds, now deceased, and took the hand of said Estella Seeds and made her mark for her at the end of said will at the place where her signature was supposed to be; that at the time said mark was so made there was no one present in said room except said Ritter and said Seeds and the nurse attending said Estella Seeds; that at the time said mark was made, said Estella Seeds was unconscious and mentally incompetent to understand the nature of the business about which she was engaged and was unable to comprehend the names or the identity of those who had a natural claim upon her bounty including the plaintiffs herein; that she was unable to understand or comprehend her relation to the members of her family; that said James W. Seeds and said Ritter knew said facts and conditions to exist at the time they made her mark at the end of said will in the manner as herein alleged; that the contents of said will were not read to said Estella Seeds; that she did not acknowledge said will as her last will and testament in the presence of said Ritter or in the presence of any other person."

The exact question, under the same state of facts as presented in this case, was decided by the Supreme Court of Missouri in Stowe v. Stowe, 140 Mo., 594, 41 S.W. 951. In that case there was a bill in equity seeking to hold the fraudulent beneficiary under the will as a trustee for the plaintiff, one of the next of kin. The state of Missouri had a statute substantially similar to that of Ohio. The Missouri statute provided:

"If no person shall appear within the time aforesaid [within five years after probate] the probate or rejection of such will shall be binding."

That statute tolled the period of bringing contest, making it five years after removal of disability. The son of the decedent, in his bill in equity, alleged that while he was still a minor his deceased father was induced to execute a will leaving substantially all his property to his sister and his wife; that his sister "Amarylis Stowe-Cook, at about the time of the death of said Asa H. Stowe, and after he had lost consciousness of what was transpiring and was unable to exercise any volition or express a wish to make any disposition of his property, well knowing that the said Asa H. Stowe was incapable of disposing of his property, wrongfully and willfully caused a mark to be made to an instrument purporting to be the will of said Asa H. Stowe as the mark and signature of said Asa H. Stowe, well knowing that said instrument was not the will of said Asa H. Stowe, and that he gave no assent to his mark or signature being placed thereto."

The petition in that case was demurred to in the circuit court, and the plaintiff was denied relief. The Supreme Court of Missouri affirmed that decision in the following syllabus:

"The probate of a will by a probate court in Missouri is a judicial act. Like the judgment of any other court of competent jurisdiction, it is not open to collateral attack, and is binding upon all the world unless set aside within the time prescribed by law. Therefore, where a will which had been procured by fraud and to which the testator's mark was affixed at a time when he was unconscious and incapable of understanding its nature, purport and meaning, was duly admitted to probate, it could not be set aside unless direct proceedings for that purpose were begun within the time prescribed by statute."

In its opinion that court held that a court of equity had no jurisdiction to interfere with the probate of the will. In the course of the opinion it is stated:

"The effort to confer jurisdiction on the equity side of the court is an attempt to accomplish indirectly what the law will not permit to be done directly. The attempt to charge defendants as trustees is predicated upon the ground that Stowe's will was procured by fraud; that he was imposed upon; that he had not the mental capacity to execute a will. Each of these contentions was necessarily settled adversely to plaintiff by the probate of the will, and the subsequent lapse of time which rendered that probate a finality."

The presiding judge quoted with approval from the opinion in Broderick's Will case, 88 U.S. (21 Wall.), 503, 22 L. Ed., 599:

"The relief sought by declaring the purchasers trustees for the benefit of the complainants would have been fully compassed by denying probate of the will. On the establishment or nonestablishment of the will depended the entire right of the parties; and that was a question entirely and exclusively within the jurisdiction of the probate court. In such a case a court of equity will not interfere, for it has no jurisdiction to do so."

Further on in the opinion the judge said:

"It is only by denying the binding effect of the judgment of probate in a collateral attack like this that there can be the slightest foundation for the alleged trust."

The statute of Missouri gave five years in which to contest the will. The son did not bring an action to contest within that period. He endeavored to save himself by an allegation in his petition:

"That he was ignorant of the facts and frauds relative to said will until it was too late to contest the same and did not learn of them until the year 1892," etc.

Notwithstanding these allegations, the court held that the five-year provision for bringing contest proceedings was a special statute of limitation upon the topic of wills and their contest, and was therefore exclusive of all other statutes of limitation.

Case of Broderick's Will, 88 U.S. (21 Wall.), 503, 22 L.Ed., 599, is not only alluded to in the opinion, but has been frequently cited in cases relating to the principle under consideration. On page 602 of the Stowe case, supra, there is a reference to Broderick's Will case, supra, where, at page 513, Justice Bradley quotes with approval the following remarks of Mr. Justice McLean in Gains v. Chew, 43 U.S. (2 How.), 619, 11 L.Ed., 402:

" 'Formerly it was a point on which doubts were entertained, whether courts of equity could not relieve against a will fraudulently obtained. And there are cases where the chancery has exercised such a jurisdiction. * * * In other cases such a jurisdiction has been disclaimed, though the fraud was fully established. In another class of cases the fraudulent actor has been held a trustee for the party injured. These cases present no very satisfactory result as to the question under consideration. But since the decision in Kerrick v. Bransby, 3 Brown's Par. Cas., 385, and Webb v. Claverden, 2 Atkyns, 424, it seems to be considered settled, in England, that equity will not set aside a will for fraud or imposition. The reason assigned is, where personal estate is disposed of by a fraudulent will, relief may be had in the ecclesiastical court, and, at law, on a devise of real property. In cases of fraud equity has concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for this exception. That exclusive jurisdiction over the probate of wills is vested in another tribunal is the only one that can be given. The American decisions on this subject have followed the English authorities.' "

As late as 1891 the Supreme Court of the United States in Simmons v. Saul, 138 U.S. 439, 459, 11 S. Ct., 369, 376 ( 34 L.Ed., 1054), Mr. Justice Lamar again commented upon Broderick's Will case, as reported in 88 U.S. (21 Wall.), 503, 22 L.Ed., 599. The learned justice said that the Broderick case "was a bill in equity brought by the alleged heirs at law of Broderick to set aside and annul the probate of his will in the probate court of California, and to recover the property belonging to his estate, or to have the purchasers at the executor's sale thereof, and those deriving title from them, charged as trustees for the benefit of complainants. The bill alleged that the will was forged; that the grant of letters testamentary and the orders for the sale of the property were obtained by fraud, all of which proceedings, as well as the death of the decedent, were unknown to the complainants until within three years before the filing of the bill. A demurrer to the bill was overruled and the case was appealed to this court. It was held, Mr. Justice Bradley delivering the opinion, that a court of equity will not entertain jurisdiction to set aside the probate of a will, on the ground of fraud, mistake or forgery, this being within the exclusive jurisdiction of the probate court."

That case fully supports the rule in the federal and state courts denying the right of an indirect, collateral attack upon the judgments of probate courts in the probation of wills. And since Mr. Justice Bradley in the Broderick case cites with approval a decision by the Supreme Court of California upon this subject it may be well to allude to that decision, reported as State of California v. McGlynn, 20 Cal. 233, 81 Am. Dec., 118. That case involved the will of one Broderick, a late United States Senator from California, and was the same will considered in Broderick's Will case, 88 U.S. (21 Wall.), 503, 22 L.Ed., 599. The allegations of the bill in the McGlynn case were similar to those in the case at bar. It was alleged that the will "was a false and forged paper, and was fabricated;" and that a defendant had "caused * * * false testimony to be used in procuring said decree of probate" (page 263 [81 Am. Dec., 118]); that the California period of limitation for contest, like our own, was one year (page 272 [81 Am. Dec., 118]). The complainant in his bill alleged "that the knowledge of said fraud and forgery" came to him after the period for contest had expired. The California court stated the principle controlling, in the following syllabus:

"A decree of the probate court, admitting a will to probate, not reversed by the appellate court, is final and conclusive, and is not liable to be vacated or questioned by any other court, either incidentally or by a direct proceeding for the purpose of impeaching it."

After reviewing a great number of decisions respecting collateral attacks in courts of chancery upon the judgment of probate, Norton, J., says, on page 273 (81 Am. Dec., 118):

"This review of the cases decided in England and in the United States establishes that it is a perfectly settled doctrine that the decision of the court to which the proof of wills is confided, whether of real or personal estate, is conclusive upon the question of the validity or invalidity of the will; that this decision cannot be questioned collaterally in any other court; and that it cannot be reviewed or set aside by the Court of Chancery on an allegation of fraud, or on any other ground." (Italics ours.)

Again, on page 274 (81 Am. Dec., 118), he said:

"The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is, or is not, a forgery; and hence, there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery."

The Supreme Court of California many years after the McGlynn case was decided upheld the same principle in Del Campo v. Camarillo, 154 Cal. 647, 98 P. 1049, this time Judge Shaw rendering the opinion. In that case also there were allegations in the pleading "made for the purpose of showing the ignorance of the plaintiffs of the frauds committed, and that they did not discover the same until shortly before the beginning of this action." Page 652 (98 P. 1052). In the course of his opinion, on page 662 (98 P. 1056), Judge Shaw announced this principle:

"It is the established law of this state, as well as of many other jurisdictions, that an order admitting a will to probate, duly made by the court of probate jurisdiction, in a proceeding for that purpose, cannot be vacated by a court of equity for direct fraud in establishing it, consisting either of perjured testimony or a false will, produced before the court at the time of the hearing, and further, that the devisee therein cannot be declared a trustee in favor of the heir in a suit in equity by the heir based on such fraud. * * * The only remedy for a fraud so committed is the remedy afforded by the probate statute, that is to say, a proceeding to contest the will and to revoke the probate thereof, which under Section 1327 of the Code of Civil Procedure may be begun within a year after such probate. This short limitation is made in order to prevent the unsettling of titles: and the reopening of contests over estates of deceased persons."

The same principle was held in Langdon, Adm'x., v. Blackburn, 109 Cal. 19, 41 P. 814, wherein the first proposition of the syllabus reads:

"A court of equity has no jurisdiction to avoid a will, or set aside the probate thereof, on the ground of fraud, mistake, or forgery, this being within the exclusive jurisdiction of the courts of probate; and equity will not give relief by charging the executor of a will or a legatee with a trust in favor of a third person alleged to have been defrauded by the forged or fraudulent will, where relief could be afforded in the court of probate by refusing probate of the will in whole or in part, or by contesting the will in that court."

The principle we now urge has also been held by the Supreme Court of Illinois in Luther v. Luther, 122 Ill. 558, 13 N.E. 166. The Illinois statute is similar to our own. It gives three years after probate for the purpose of contest of wills, and then provides:

"If no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned."

It gives the usual saving clause to persons under disability, similar to our own, but provides that the action of contest shall be tried by a jury. Commenting upon the statute giving the probate the binding force as stated therein, the Supreme Court held that after the period of three years the court had no power to entertain a bill in chancery, and in the course of its opinion, on page 566 (13 N.E. 169), said:

"The reason of this is apparent from the words, 'if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants,' etc. The original probate of the will upon the testimony of the subscribing witnesses is allowed without delay, in order to secure an orderly settlement of the estate and to prevent the embarrassments and injurious consequences to creditors and others, which might result from the delay incident to a contest over the will. But serious consequences may also result from too long a delay to the property rights and titles of parties interested in and holding under the will, and, therefore, a period should be fixed after which the original probate should be regarded as binding and conclusive."

It is very apparent, therefore, that the plaintiffs in this case cannot collaterally attack the judgment of the probate court establishing the validity of this will, and that an attack upon the order of probate can only be made by way of contest under the statute and within the period of limitation therein provided. There are many sound and valid reasons why this should be so. (1) The policy of our law as established by the decisions, not only of this court, but elsewhere, is that the periods of limitation were adopted for the sole purpose of providing for the settlement of estates by passing title to devisees and by providing for their prompt administration. (2) If the will can be contested by a bill in equity upon the ground of fraud in its procurement and false testimony given to uphold its validity, then such an issue would be submitted to the court sitting as a chancellor, and not to a jury, which, by the Ohio contest statutes, has been provided for to pass upon the issues thus presented. It cannot be denied that the plaintiffs could not obtain relief in this action except by an attack upon a court which had exclusive probate jurisdiction. The relief cannot be obtained except by showing that the testimony given before the probate court was false; that the testatrix was non compos mentis, or, as claimed in the petition, was unconscious at the time the mark was made. All these facts were germane in the proceeding to probate the will, and would be competent and germane in a proceeding to contest the will. It logically follows that there can be no concurrent remedies available to plaintiff, one by way of contest and another by a bill in equity, and this for the reason that a legal specific remedy has been provided, whereby, under the Ohio authorities cited, contest proceedings are exclusive. If we assume that a beneficiary can at any time file his bill in equity, attacking the probate of a will, it would have the effect of nullifying the statutes providing for contest as well as the period of limitation within which such contest should be made. Under the view taken in this case the minority of the plaintiffs would not be important; for whether the beneficiary defrauded was a minor, or not, as we view the conclusions arrived at by this court, any beneficiary, whether within the age of minority or not, could file his bill in equity if he alleged, as the beneficiaries do here, that he did not discover the fraudulent acts complained of until within four years before his action was brought. During argument, counsel for plaintiffs in error frankly avowed that there could be no statute of limitations that would apply, providing the beneficiary did not discover the frauds until within four years of the filing of his bill. Undoubtedly that is true if their legal principle is upheld. We might inquire, then, what is the necessity of the statute of limitations? If it is not for the purpose of speeding administration of estates and the passing of title by bequest and devise, why should the Legislature of Ohio have reduced the period of limitations to one year after probate? Prior to 1911, the period of limitation for contest was two years after probate. The importance of the prompt settlement and administration of estates of decedents, while the parties interested and the witnesses to the will are living, is obvious. While the petition does not allege it, counsel for defendants in error state that Ritter is dead and James W. Seeds, the beneficiary, has been adjudged incompetent. The record does disclose, however, that one Thomas H. Clark is the guardian of Seeds and is a party to this action.

Indiana has a statute providing that a contest proceeding may be brought within three years after the probate of the will. It also has a statute providing that a cause of action which had been concealed might be prosecuted within the period of limitation after discovery. The Supreme Court of Indiana holds in Bartlett v. Manor, 146 Ind. 621, 45 N.E. 1060, that the limitation of three years was not extended by the period of the statute extending the limitation after discovery. In the course of the opinion it is said:

"It cannot be seriously questioned that our statute of wills is special with reference to the right of contest, that it creates a right not existing in its absence, and that the right is given upon the condition that it be exercised within three years. As to this right it cannot be doubted, we think, that the general statute of limitations has no effect. Nor do we think that the rules of equity as applied to general statutes of limitation, where the right sought to be enforced is of equitable cognizance or is of concurrent jurisdiction of both law and equity, may be applied to the right to contest a will so as to lift the case out of the special limitation."

The reasoning of the Indiana court was followed in the opinion in McVeigh v. Fetterman, supra, on page 298 (116 N.E. 518) et seq. That there can be no concurrent jurisdiction is supported by the federal court in Gains v. Chew, supra, wherein the court said:

"In cases of fraud, equity has a concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, this rule does not hold."

No Ohio authority has been cited in the majority opinion in support of the rule that equity has jurisdiction in cases of this character wherein the execution of a will and the procurement of its probate have been accomplished by false testimony and fraudulent means. We do not deny the principle that in ordinary cases a trustee who has obtained property under the mode described in the petition would be held as trustee ex maleficio; but this principle does not apply where the trust must be proved dehors the probate.

The petition of the plaintiffs states a very extreme case. It alleges, in substance, that certain of the defendants took the hand of the testatrix and made a mark for her at the end of the will at a time when she was unconscious and mentally incompetent, etc. However, our duty is to deduce and establish a legal principle for the guidance of bench, bar, and laity; to fit and apply such legal rule not only to the facts presented in this particular petition, but to facts presented in a future case where the charges of mental incompetency of a testator, or the character and amount of undue influence exercised upon him, are of a lesser degree than this case presents. Certainly, a will executed in the manner alleged in the petition, if the allegations are true, would not be the will of the testatrix; neither would it be her will had the proof disclosed mental incapacity upon her part. Practicing lawyers know very well that the issues of mental capacity and undue influence are frequently resorted to in the contest of wills; in some cases the evidence touching those issues may be unevenly balanced. Is it possible that in cases of the latter character an heir who claims to have been defrauded by the act of the beneficiary can appeal to a court of equity without limit of time, save after discovery, for the purpose of having the property devised to the beneficiary held in trust for himself? Furthermore, if it be shown in such equitable proceeding that the will was executed under undue influence, or while mentally incapacitated, the will should be set aside for all purposes; for it would not be the will of the testator. However, it is attempted here to hold the beneficiary as a trustee ex maleficio in favor of the next of kin without disturbing the will. As has already been said, this cannot be done without a collateral attack upon the judgment of the probate court, nor can it be done without proving that the testimony adduced on the probate was false. The relief asked for, as heretofore stated, is based upon fraud in the execution of the will and upon false testimony on the probate. Where such attempt has been made, that is to hold the will intact and the beneficiary as trustee ex maleficio, it has been denied by the courts. In Stowe v. Stowe, supra, a case exactly on all fours with the case at bar, the Supreme Court held as follows in its syllabus:

"Where a will has been obtained by fraud, and the time has passed in which its probate can be tested, the courts will not nullify its effects by declaring the devisees hold the property as trustees for the heirs of the testator. The rights of the heirs depend on the final establishment of the will, and if it is not set aside in the statutory way it determines the title of the estate."

The contention there made was exactly like that attempted to be made in this case, for in the opinion it is said:

"The contention of plaintiff is that he does not seek to set aside the probate of the will but merely to charge the defendants as trustees ex maleficio of his portion of his father's estate which they have received by virtue of the will."

But in its opinion the court said:

"The attempt to charge defendants as trustees is predicated upon the ground that Stowe's will was procured by fraud; that he was imposed upon; that he had not the mental capacity to execute a will."

The Missouri court refused to hold that any trust ex maleficio was created, for the simple reason that the order of probate, and the subsequent lapse of time within which contests should be made, rendered the probate a finality. The presiding judge, in support of the principle, that lacking contest of the will the beneficiary should not be charged as a trustee, quoted from Broderick's Will case, supra, as follows:

"The relief sought by declaring the purchasers trustees for the benefit of the complainants would have been fully compassed by denying probate of the will. On the establishment or nonestablishment of the will depended the entire right of the parties; and that was a question entirely and exclusively within the jurisdiction of the probate court. In such a case a court of equity will not interfere, for it has no jurisdiction to do so."

Then the opinion says:

"It is only by denying the binding effect of the judgment of probate in a collateral attack like this that there can be the slightest foundation for the alleged trust."

Relief of this character was also denied in Simmons v. Saul, supra. So, also, in the case of Langdon v. Blackburn, supra. The Supreme Court of California stated in its syllabus that equity will not give relief by charging "a legatee with a trust in favor of a third person alleged to have been defrauded by the forged or fraudulent will," where relief is afforded by a proceeding to contest the will in court. In that case, as in this, there was an attempt, by means of a bill in equity, not only to annul the probate proceeding but to hold the defendants as trustees, etc. The authorities cited are unanimously to the effect that states like our own, which have adopted not only a statute providing for a period of limitation within which the contest must be instituted, but also a statute which provides that "the probate shall be forever binding," equity will not interfere with an order of probate made by a court of competent jurisdiction; that it is impossible to invoke the principle of concurrent remedies without destroying the order of probate; and that, since specific contest provisions have been provided, it is not permissible, under circumstances here set forth, to hold the beneficiary as a trustee ex maleficio, without making collateral attack upon the order of the probate court.

A second cause of action appears in the petition. It is there alleged that about four years and seven months after the probate of the will the father of plaintiffs below, James W. Seeds, was married to their stepmother, Nancy J. Seeds. The youngest child was then of age. The second cause of action avers that before this marriage, and while James W. Seeds was mentally incompetent, Nancy acquired the property in suit by exciting the physical passions and subverting the will power of James W. Seeds for the purpose of inducing the latter to marry her and transfer to her said property; that this was done while he was sick and mentally incompetent, and without consideration.

It will be observed that this is an independent cause of action arising about four years and seven months after the probate of the will, and should have no connection whatever with the allegations contained in the first cause of action, wherein a collateral attack was made upon the probate. Certainly, the defendant Ritter had no connection with this cause of action, and undoubtedly there was a misjoinder as to him, even if the first cause of action should be sustained. As this case, under the decision, is to be remanded we do not discuss the questions arising under the second cause of action, nor have we discussed the alleged suppression of notice pleaded.

The major questions arising in this case are those relating to the effect of the order of probate and the power of the court, by a bill in chancery, to disturb that order. These questions are of such supreme importance to the bench and bar of the state that it is deemed advisable to present our views in this opinion.

MATTHIAS, J., concurs in this dissent.