Opinion
No. 35745
Decided May 20, 1959.
Pleading — Declaratory judgment — Executor's action to determine whether beneficiary forfeited gift — Beneficiary filed petition to contest will — Defense alleging facts showing estoppel as to executor — Error for court to strike.
In an action by an executor against a beneficiary of a will, who had instituted an action to contest it, for a declaratory judgment to interpret a provision of the will voiding a gift to one who attempts to overthrow the will, it is prejudicial error to strike from the answer of the defendant the defense that the amount of his gift was voluntarily paid to him by the executor who was also the residuary legatee and as such would benefit if the gift was voided, that there was an acceptance of such payment, and that defendant was deprived of his gift against his will and by a ruse.
APPEAL from the Court of Appeals for Clinton County.
This is an action for a declaratory judgment originating in the Court of Common Pleas of Clinton County, Ohio, and in which it was adjudged that Mary Ann Turner, appellant herein, had forfeited the legacy given her under the will of Ella E. Turner, deceased.
Ella E. Turner of Clinton County died testate on November 25, 1952, leaving the appellant, her granddaughter, as her only heir at law. The will was probated in the Probate Court of Clinton County on December 20, 1952. By its terms, appellant was bequeathed the sum of $3,000, Wilma Spaulding was given $100, and Verna M. Winter, half sister of the testatrix, was named as residuary legatee and devisee and was designated as executrix, to which office she was appointed.
Item eight of such will recites, inter alia, "Be it further provided that if any of the above named legatees or devisees attempt to overthrow this my last will and testament, then in that event the gift devise or bequest to that person is to be void."
On July 8, 1953, appellant instituted an action in the Court of Common Pleas of Clinton County to contest the will of Ella E. Turner, which action was voluntarily dismissed upon discovery that it had been brought too late, that is, more than six months from the date on which the will had been probated. Section 12087, General Code, now Section 2741.09, Revised Code.
Thereafter on December 7, 1953, Verna M. Winter, as executrix, brought the present action for a declaratory judgment interpreting the will of Ella E. Turner, naming as defendants, Mary Ann Turner, Wilma Spaulding and Verna M. Winter. The prayer of the amended petition reads:
"Your petitioner therefore asks for a declaratory judgment interpreting said will and find whether or not the defendant, Mary Ann Turner, has, by her acts in attempting to contest and overthrow the will of Ella E. Turner, forfeited the bequest of three thousand dollars made to her, and for such other and further relief as she may be entitled to in the premises, and as the court may deem proper."
In the answer interposed by Mary Ann Turner to the amended petition, the third defense is as follows:
"This answering defendant for her third defense says that on November 28, 1953, the plaintiff mailed to this defendant a check for the sum of three thousand ($3,000) dollars made payable to this answering defendant, drawn on the First National Bank by the Ely, White and Davidson, the attorneys for the plaintiff herein.
"That on the 5th day of December, 1953, this answering defendant presented said check to the bank for certification.
"That after the bank consulted the plaintiff attorneys the check was certified and accepted by this defendant.
"That thereafter Charles Tilbury, the son-in-law of the plaintiff, and an employee of the firm of attorneys that now represent the plaintiff and an attorney at law that did represent the plaintiff and Forrest Ely, an attorney at law a partner in the firm of Ely, White Davidson, met the answering defendant upon the street in the village of Batavia, Ohio and did request to see the check, with which request this answering defendant complied.
"That thereafter said attorney without this answering defendant's consent and against her will carried away said certified check.
"That the legacy as provided under said will was paid by the sending of said check and the acceptance by this defendant by having the same certified."
The motion to strike the entire third defense of the answer was sustained, and thereupon the court proceeded to hear and determine the matter in accordance with the quoted prayer of the amended petition. Relying principally on the case of Bradford v. Bradford, Exx., 19 Ohio St. 546, 2 Am. Rep., 419, the court found that the bequest of $3,000 to Mary Ann Turner had been forfeited by reason of her acts in attempting to contest the will of Ella E. Turner and ordered that such amount be paid over to Verna M. Winter, the residuary legatee and devisee.
An appeal on questions of law and fact to the Court of Appeals was reduced by that court to one on questions of law alone, and the judgment below was then affirmed without written opinion.
The cause is lodged in this court for disposition on its merits by reason of the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. Ely, White Davidson, for appellee.
Mary Ann Turner, in propria persona.
The participating members of this court are unanimously of the opinion that the trial court erred to the prejudice of the appellant in striking the third defense of her answer, and that the Court of Appeals likewise erred in affirming such action. Such third defense, if proved, would establish a voluntary payment of the amount of the legacy, with knowledge of the facts, by one who, in her individual capacity, was not only the principal beneficiary of the Ella E. Turner estate but also the one who would receive appellant's legacy if there was a forfeiture thereof, an acceptance of the payment by the appellant and appellant's deprivation thereof by a ruse and against her will.
An estoppel would thereby arise in favor of the appellant and it would be unnecessary and inappropriate for the court to go further.
In view of the position taken, there is no need to decide now whether the law announced in Bradford v. Bradford, Exx., supra, is applicable to the facts of this case or whether the strict rule there adopted is controlling in all circumstances. See 57 American Jurisprudence, 1025 et seq., Section 1512 et seq.
Without further comment, the judgment of the Court of Appeals is reversed and the cause remanded to the Court of Common Pleas for further proceeding as indicated in this opinion.
Judgment reversed.
WEYGANDT, C.J., TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
PECK, J., not participating.