Opinion
Nos. 36521 and 36522
Decided March 8, 1961.
Wills — Order of probate — Application to vacate — Probate Court without jurisdiction to consider, when.
The Probate Court has no jurisdiction to consider an application to vacate the probate of a will filed while an action to contest the will is pending in the Common Pleas Court.
APPEALS from the Court of Appeals for Cuyahoga County.
These causes originated in the Court of Appeals for Cuyahoga County on two separate petitions by the relators for writs of prohibition against the respondents. To each petition the respondents demurred.
The facts herein are set forth in the well pleaded allegations in relators' petitions, which are admitted by the demurrers.
Julius E. Goodman died a resident of Cuyahoga County on August 14, 1958. On August 21, 1958, a paper writing purporting to be his last will and showing the date of execution as December 22, 1953, and a codicil showing the date of execution as September 2, 1955, were duly admitted to probate by the Probate Court of Cuyahoga County.
At the time of admission of the will to probate, Mrs. Janet Altman Hecht, who claimed to be the sole heir and next of kin of the decedent, waived, in a writing filed in the court, notice of the presentation of the will and codicil for probate and consented to their admission to probate.
On January 14, 1959, Mrs. Hecht instituted an action in the Court of Common Pleas of Cuyahoga County, alleging that the documents admitted to probate were not the last will of the decedent.
Pursuant to statute, the Probate Court promptly transmitted the will, testimony and all papers relating thereto to the Common Pleas Court, in whose custody and possession they have been since that time. The will contest is still pending.
On April 6, 1959, Mrs. Hecht filed in the Probate Court an "application to vacate probate of will and appointment of executor." This application was filed after the term at which the order of probate was made and more than six months after the will was admitted to probate.
The sole grounds claimed for the application are (1) that the first nine pages of the will are not the original pages and (2) that there is a later will.
On April 20, 1959, the relator The Cleveland Trust Company, executor under the will, by motion objected to the jurisdiction of the Probate Court to consider Mrs. Hecht's application. The court overruled the motion and set Mrs. Hecht's application for hearing and summoned the witnesses to the will and codicil to appear for examination and cross-examination.
These causes were heard together by the Court of Appeals and in each case the demurrer was overruled and a writ allowed in favor of the relators and against the respondents.
The causes are before this court on appeals as a matter of right.
Messrs. Jones, Day, Cockley Reavis, Mr. Henry Kutash, Mr. Victor DeMarco and Mr. Ellis H. McKay, for appellee in case No. 36521.
Messrs. Burke, Haber Berick, Messrs. Ulmer, Berne, Laronge, Glickman Curtis, Messrs. Weitz Weitz, Messrs. Benesch, Friedlander, Mendelson, Gnau Coplan and Mr. Richard L. Phillips, for appellees in case No. 36522.
Mr. A.H. Dudnik, Mr. M.I. Nurenberg and Mr. Ellis V. Rippner, for appellants.
The question presented here is: Does the Probate Court have jurisdiction to consider a motion to vacate the probate of a will where an action to contest such will is pending in the Common Pleas Court?
Respondents claim that if in fact the will is not the valid last will of decedent, the Probate Court had no jurisdiction to probate it, and that such court has jurisdiction after the term in which, and more than six months after, the will was probated and while a will contest is pending in the Common Pleas Court, to conduct a hearing to determine whether the purported will is a valid will and whether the Probate Court has jurisdiction to probate it.
The relators assert that the Probate Court has no jurisdiction to consider such an application and conduct a hearing upon it under circumstances related above.
The Probate Court has no jurisdiction to consider an "application to vacate probate of will and appointment of executor" filed after the term in which the order of probate was made and more than six months after the will was probated and while an action to contest the will is pending in the Common Pleas Court.
A clear statement of the law was set forth by Younger, J., in In re Estate of Hammer (1955), 99 Ohio App. 1, 130 N.E.2d 437, at page 5, as follows:
"Upon the certification of the will and related papers to the Common Pleas Court and until the return to the Probate Court of the certificate from the Common Pleas Court as to the result of the case, that is, whether the paper writing is or is not the last will of the decedent, the Probate Court is without any jurisdiction to entertain a motion to set aside the order of probate." (Emphasis added.)
Where a document is certified by the Probate Court to the Common Pleas Court for a determination as to whether such document is the last will of decedent, the Probate Court is without jurisdiction to consider a motion to set aside the order of probate of such document until the return to the Probate Court of the certificate from the Common Pleas Court as to the result of such determination.
Mrs. Hecht can raise all the questions, raised by her application to the Probate Court, in her will contest which is now pending in the Common Pleas Court of Cuyahoga County. The basis for not permitting a person to proceed to attack the validity of a will, which has been admitted to probate, in both the Common Pleas Court and the Probate Court is well stated, as follows, in In re Will of Hathaway (1854), 4 Ohio St. 383:
"An application to admit a will to probate is not an adversary proceeding. * * *
"Id those who deny the validity of a will had the right to send for witnesses, and contest it on the application to admit it to probate, the statute would run into the absurdity of allowing a party two distinct courts, and two distinct modes of contesting and having an adjudication of the same fact; and the adjudication of the first tribunal, although not appealed from, no bar to the second proceeding. (Emphasis added.)
The above statement was quoted with approval in In re Will of Elvin (1946), 146 Ohio St. 448, 66 N.E.2d 629, and In re Estate of Lyons (1957), 166 Ohio St. 207, 141 N.E.2d 151.
The judgments of the Court of Appeals allowing the writs in favor of all relators and against all respondents are affirmed.
Judgments affirmed.
ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.