Opinion
No. 37096
Decided March 7, 1962.
Contest of wills — Right statutory — Conditions precedent — Determination of heirs — Persons taking under half-and-half statute.
1. In Ohio the right to contest the validity of a will or codicil is wholly a creature of statute, and the exercise of such right is subject to the statutory conditions precedent that the action shall be brought within six months after probate, and the heirs and interested persons must be made parties thereto within such time. ( Fletcher v. First National Bank of Zanesville, Exr., 167 Ohio St. 211, approved and followed.)
2. The determination as to who is an heir of a decedent must be made from a consideration of the statutes of descent and distribution in effect at the time of the death of the decedent.
3. The determination of the heirs of a decedent for the purpose of joinder of necessary parties in an action to contest a will must be made from a consideration of those who would take the decedent's estate in the event of an ultimate finding that such decedent died intestate.
4. One who takes under the half-and-half statute (Section 2105.10, Revised Code) takes as an heir of the relict or surviving spouse and as such, under the provisions of Section 2741.02, Revised Code, is a necessary party in an action to contest the will of such relict. ( In re Estate of Sherick, 167 Ohio St. 151, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga County.
This cause is an action to contest a will. On November 28, 1959, the will of Renna S. Limbach was admitted to probate. Within the statutory time plaintiffs, appellants herein, instituted the present action. The case came on for trial in June of 1960, and during the course of the trial it was discovered that a son of a deceased former spouse of the testatrix, who died without issue, would, under the half-and-half statute, inherit a part of the property if it were eventually determined that the testatrix had died intestate. Such son was not made a party to the action. Upon the discovery of this fact, defendants made a motion to dismiss on the ground that the court was without jurisdiction to entertain the action because of the failure to join all the necessary parties required by Section 2741.02, Revised Code. The motion was sustained by the trial court.
Upon appeal to the Court of Appeals, that court affirmed the judgment of dismissal by the trial court, and the cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Charles C. Redmond and Mr. Owen C. Neff, for appellants.
Mr. Ellis V. Rippner, Mr. Anthony R. Fiorette and Messrs. Mills Mills, for appellees.
The single question raised by this appeal is whether a person who would inherit under the half-and-half statute in the event it is eventually determined that the decedent died intestate is a necessary party in an action to contest the will of the decedent.
It is fundamental that in Ohio the right to contest a will is wholly a creature of statute. Case v. Smith, Admx., 142 Ohio St. 95, 50 N.E.2d 142; Fletcher v. First National Bank of Zanesville, Exr., 167 Ohio St. 211, 147 N.E.2d 621; and Peters v. Moore, 154 Ohio St. 177, 193 N.E.2d 683.
It is equally basic that the provisions of the statutes relating to the contest of wills are mandatory. Gravier v. Gluth, Exrx., 163 Ohio St. 232, 126 N.E.2d 332.
Section 2741.02, Revised Code, enumerates the necessary parties in an action to contest a will, as follows:
"All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to an action under Section 2741.01 of the Revised Code."
The joinder of the necessary parties as provided by this section is a prerequisite to the obtaining by the Court of Common Pleas of jurisdiction over an action to contest a will, and, where all the necessary parties are not joined prior to the expiration of the period of time set forth in the statute of limitations, the court is without jurisdiction to entertain such action. Case v. Smith, supra; Gravier v. Gluth, supra; Fletcher v. Bank, supra.
This brings us to the ultimate question in the instant case as to whether one who would take under the half-and-half statute (Section 2105.10, Revised Code), in the event of a final determination that the deceased died intestate, is an heir of the decreased person within the meaning of Section 2741.02, Revised Code, and thus a necessary party to an action to contest a will of the deceased.
The right of inherit property as well as the right of transmit property to heirs is purely a statutory right in Ohio subject to control by the General Assembly. Ostrander, Admr., v. Preece, Admr., 129 Ohio St. 625, 196 N.E. 670, 103 A.L.R., 218.
Therefore, the determination as to who is an heir in Ohio must also necessarily be made from a consideration of the statutes of descent and distribution. As stated in the third paragraph of the syllabus in the case of Holt v. Miller, 133 Ohio St. 418, 14 N.E.2d 409, "in its technical sense, the term `heirs' embraces those persons who take the estate of an intestate under the statute of descent and distribution, and in the event such statute designates the widow, she takes as an heir."
Section 2105.10, Revised Code, known as the half-and-half statute, is a part of the statutes relating to the descent and distribution of estates and reads in part as follows:
"When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse by deed of gift, devise, bequest, descent, or by an election to take under Section 2105.06 of the Revised Code, such estate, real and personal, except one half thereof which shall pass to and vest in the surviving spouse of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes. If there are no children or their lineal descendants, such estate, except for the one-half passing to the surviving spouse of such relict, shall pass and descend as follows: * * *."
This court in considering the course of descent under this statute stated in the third paragraph of the syllabus of In re Estate of Sherick, 167 Ohio St. 151, 146 N.E.2d 727, as follows:
"Under the provisions of Section 2105.10, Revised Code, where a relict spouse dies intestate without having remarried, leaving no surviving spouse or surviving issue and possessed of identical property which came to her under the will of her predeceased spouse, the son and only lineal descendant of the predeceased spouse takes from the relict spouse, his stepmother, and not through her and from the predeceased spouse, his father."
Thus, one who takes under the half-and-half statute takes as an heir of the relict or surviving spouse and as such, under the provisions of Section 2741.02, Revised Code, is a necessary party in an action to contest the will of such relict.
It is urged, however, that the testatrix in the instant case had executed prior wills under which her property would pass in the event of the determination of the invalidity of the will in the instant case. It is unnecessary for us to determine the effect of a determination of invalidity of a subsequently executed will as to the reinstatement of a prior executed will. Irrespective of the number of wills of a decedent, the determination of his heirs for the purpose of joinder of necessary parties in an action to contest his will must be made from a consideration of those who would take the decedent's estate in the event of an ultimate finding that such decedent died intestate.
Under the facts of the instant case, in the event of intestacy of the decedent, the stepson would take under the half-and-half statute, and, irrespective of the number of prior unprobated wills of the decedent, such stepson is a necessary party in the will contest.
There being no error in the judgment of the Court of Appeals, it is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT and RADCLIFF, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.