Summary
In Porter v. Fenner (1966), 5 Ohio St.2d 233 [34 O.O.2d 465], the court held that the plaintiff could amend her complaint when she named an executor in his representative capacity in the body, but not in the caption, of the complaint.
Summary of this case from Mathe v. FowlerOpinion
No. 39631
Decided March 23, 1966.
Will contest — Statutory construction — Necessary parties — Section 2741.02, Revised Code, sufficiently complied with, when — Executor served as individual — Apparent that sole relation to estate is that of executor.
1. Remedial statutes and the proceedings thereunder are to be liberally construed, and no person should be denied the assertion of a cause of action on captious or purely technical grounds.
2. Where in a timely brought action to contest a will, a defendant is designated in the body of the petition as the executor of the deceased testator's estate, but in the caption of the petition, in the precipe for summons and in the summons which is served on him he is named in an individual capacity, and it is apparent that his sole relation to the estate is that of executor, there is sufficient compliance with the provisions of Section 2741.02, Revised Code, to bring him into the action as executor, and a motion filed more than six months after the admission of the will to probate to dismiss the petition for failure to summon him as executor should be overruled. ( Mangan v. Hopkins, 166 Ohio St. 41, overruled.)
APPEAL from the Court of Appeals for Fulton County.
This case involves primarily the validity of the issuance and service of a summons in an action to contest the will of Omer C. Fenner, deceased, which had its inception in the Court of Common Pleas of Fulton County. The petition to contest was filed on January 27, 1964, naming Luella Porter as plaintiff. Named as defendants in the caption of the petition are Violet Fenner and Carl Smith. It is alleged in the body of the petition that plaintiff is the only child of the decedent who died on January 4, 1964, that defendant Violet Fenner is the surviving spouse, and that Carl Smith was appointed by the Probate Court of Fulton County as executor of decedent's estate on January 11, 1964, and is now acting as such.
The precipe reads:
"To the Clerk of Courts:
"Please issue summons to the Sheriff of Fulton County, Ohio, for service upon the defendants, Violet Fenner and Carl Smith, both residing at Lyons, Ohio, returnable according to law.
"Endorse thereon: `Action to contest will of Omer C. Fenner, deceased.'"
Summons was duly and promptly issued in conformity with the precipe, and the sheriff's signed return recites:
"Received this writ January 28, 1964 * * *. And on January 29, 1964, I served the within named Violet Fenner and Carl Smith by personally handing to each of them a true and certified copy thereof with all the endorsements thereon."
On September 9, 1964, defendant Violet Fenner, by her attorneys, filed a motion to dismiss the petition of plaintiff "for the reason that she failed to make Carl Smith, as executor of the estate of Omer C. Fenner, deceased, a party to said action within six (6) months after the admission of decedent's will to probate." Section 2741.09, Revised Code.
Thereupon, plaintiff moved "for an order amending the caption of plaintiff's petition, the precipe attached to plaintiff's petition and the return of the Sheriff of Fulton County on the summons by the addition thereto, following the name `Carl Smith,' the language as follows:
"`Executor of the estate of Omer C. Fenner, deceased.'"
Such motion to amend was overruled, and defendant Fenner's motion to dismiss the petition was sustained, with judgment accordingly.
An appeal to the Court of Appeals on questions of law resulted in an affirmance of the judgment of dismissal, and the cause is now here for review and decision on the allowance of the motion to require the Court of Appeals to certify the record.
Mr. Richard B. McQuade, for appellant.
Messrs. Hallett Hallett and Mr. Lewis F. Hallett, for appellees.
No person should be denied the assertion of a cause of action on captious or purely technical grounds and thereby be deprived of his "day in court." To circumvent such a situation, Section 1.11, Revised Code, provides:
"Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice. * * *"
And Section 2309.58, Revised Code, states:
"Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect * * *." (Emphasis supplied.)
Moreover, "the petition, or the record of the court's proceedings, rather than the caption of the pleadings, determines who the parties rightfully and legally are." 41 Ohio Jurisprudence 2d 454, Section 6, citing Vance v. Davis, Agt., 107 Ohio St. 577, 580, 140 N.E. 588, 589.
By Section 2323.24, Revised Code, the record of the Court of Common Pleas includes the petition.
True, in a will contest and under Section 2741.02, Revised Code, it is mandatory that "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," and that statute should be observed.
Thus, in the cases of Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683, and Bynner v. Jones, 154 Ohio St. 184, 93 N.E.2d 687, it was held that where a defendant in a will contest occupies the dual role of heir and legatee and executor or administrator he must be summoned in both capacities to meet the terms of Section 2741.02, Revised Code, and where he is summoned only in his individual capacity such a disregard of the statute occurs as to require a nonsuit against the contester.
But here, Carl Smith occupied but one position, viz., that of executor according to the petition and the undisputed claim of plaintiff, and, although he was not so designated in the caption of the petition, in the precipe for summons or in the summons itself, there could be no misunderstanding or confusion as to the real capacity in which he was brought into the suit. He was correctly named in the body of the petition as executor. In fact, he was that and that alone, and the demand of the statute was sufficiently met, even though his title was omitted.
Now, we come face to face with Mangan v. Hopkins, 166 Ohio St. 41, 138 N.E.2d 872, decided by a four-to-three vote of the members of the court, in which the position was taken that where the contester in an action to set aside a will fails to name an executor or administrator as such in the caption of the petition or in the summons, even though he has no other relation to the estate, such omission is fatal, and the action must fail. The view of the judges who did not agree with the majority in the Mangan case was expressed by Judge Stewart in his dissenting opinion, and a majority of the members of the court as now constituted agree with the reasoning and logic of that dissenting opinion. Hence, Mangan v. Hopkins is overruled.
In passing, it may be remarked that the procedure adopted in the present case by failing to designate Smith as executor in the caption of the petition and in the precipe for summons is not to be commended. In the interest of accuracy that should have been done.
Although Abbott v. Dawson, Exr., 167 Ohio St. 238, 147 N.E.2d 609, is a stronger case in favor of the contester of a will than is the instant one, there is no conflict between the two cases.
No criticism can be leveled at either of the lower courts. They followed the law as it existed when they rendered their respective judgments.
Therefore, the judgment of the Court of Appeals herein is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings in accordance with this opinion.
Judgment reversed.
O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TAFT, C.J., and MATTHIAS, J., dissent.
I dissent for the reasons stated in my concurring opinion in Mangan v. Hopkins (1956), 166 Ohio St. 41, 42, 138 N.E.2d 872.
However, if the majority of this court is going to overrule that case and reverse the judgment in the instant case, I believe it is unfortunate that they do not also overrule Bynner v. Jones (1950), 154 Ohio St. 184, 93 N.E.2d 687, and thereby relieve those who should be guided by our decisions from the impossible task of endeavoring to find some reasonable ground for distinguishing that case from this case.
Every reason advanced in support of the decision being rendered in the instant case would require a decision in the Bynner case other than the decision there rendered. In that case, "the body of the petition contains a statement that [one who had been there named in the caption of the petition and in the precipe only as an individual] was appointed executor." Furthermore, in that case, the one so named "in his answer * * * expressed no reservation that he was not answering in the fiduciary capacity of executor." He even admitted therein "the truth of" the allegation "that he" was "the executor."