Summary
holding that a party may contest a will only if she stands to benefit from its invalidation
Summary of this case from Carroll v. HillOpinion
No. 68-333
Decided April 30, 1969.
Wills — Who may contest — "Person interested" construed — Section 2741.01, Revised Code — Executor, qualified and accepting appointment, can not contest will.
1. A person interested in a will, within the meaning of Section 2741.01, Revised Code, is one, who, at the time of the commencement of an action to contest a will, has a direct, pecuniary interest in the estate of the putative testator, that would be impaired or defeated if the instrument admitted to probate is a valid will. (Paragraph one of the syllabus in Chilcote v. Hoffman, 97 Ohio St. 98, approved and followed.)
2. A person named executor under a will, who qualifies and accepts appointment as such executor, can not maintain an action to contest the will under which he has accepted appointment as executor. ( Allison v. Allison, 15 Ohio St.2d 44, approved in part and overruled in part.)
APPEAL from the Court of Appeals for Hamilton County.
This is an action to contest a will. The plaintiff, Ellen Steinberg, the daughter of Bernice Steinberg and the granddaughter of Rae Nathan, the decedent, whose will was admitted to probate in the Probate Court of Hamilton County, asks that the will be set aside.
The daughter and only child of the decedent, Bernice Steinberg, was named as coexecutor under the will. Bernice Steinberg and her other daughter, Susan Steinberg, filed answers within the six months from the date of admission of the will to probate.
Bernice Steinberg's answer admitted the allegations of the petition and concurred in the prayer of the petition that the will be set aside.
The defendant The Central Trust Company, a coexecutor and the sole trustee, filed a demurrer to the petition, which the trial court sustained on the ground that the plaintiff could not maintain the action because she was not "a person interested" within the meaning of Section 2741.01, Revised Code.
Plaintiff filed an amended petition setting forth the provisions of the will creating a testamentary trust which provided for a life estate for decedent's daughter, Bernice Setinberg, and, upon her death, a life estate for the daughter's children, who are the plaintiff, Ellen Steinberg, and defendant Susan Steinberg, and upon their deaths as they shall direct in their last will and testament if they leave issue or spouse surviving, and if they leave no issue or spouse surviving, then to the survivors of the granddaughters.
Answers to the amended petition were filed by all the defendants except The Central Trust Company.
Bernice Steinberg, decedent's daughter, filed an answer admitting the allegations of the amended petition and concurring in the prayer that the will be set aside.
The Central Trust Company, as coexecutor of the estate, filed a motion to the amended petition. The trial court considered the motion as a demurrer and sustained the demurrer. The plaintiff elected not to plead further.
The court dismissed the petition "for the reason that the plaintiff is without interest or capacity to maintain the action herein."
The Court of Appeals affirmed the judgment of the trial court.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. John J. Rivers, for plaintiff-appellant.
Messrs. Nichols, Wood, Marx Ginter and Mr. Harry M. Hoffheimer, for appellees.
Mr. Joseph Schwartz, for defendants-appellants.
This cause raises two questions of law to be determined by this court.
1. Does a person who brings an action to contest a will and alleges an "interest" in the decedent's estate only as a legatee and devisee under the contested will have a right to maintain such action as a "person interested" in a will within the meaning of Section 2741.01, Revised Code?
2. Does a person named in a will as executor, who qualifies and is appointed by the court as such executor, have a right to maintain an action to contest the will under which he is serving as executor of the decedent's estate?
The answer to both question is, "No."
Section 2741.01, Revised Code, provides:
"A person interested in a will * * * admitted to probate * * * may contest its validity * * *."
The rule is that "a person interested" is one who, at the time of the commencement of an action to contest a will, has a direct, pecuniary interest in the estate of the putative testator, that would be impaired or defeated if the instrument admitted to probate is a valid will. Chilcote v. Hoffman, 97 Ohio St. 98; Kennedy v. Walcutt, 118 Ohio St. 442; Comer v. Comer, 175 Ohio St. 313; Bloor v. Platt, 78 Ohio St. 46, at page 49.
In the instant case, the plaintiff alleges that her mother is "the sole heir at law" of the decedent, and thus concedes that if the will were set aside or defeated she, as a granddaughter, would receive nothing. The plaintiff's only claim to the right to contest the validity of the will is as a legatee or devisee under the will. This does not give her a right under the statute to bring an action to contest the will.
Appellants argue that the court should treat the answer of Bernice Steinberg, daughter of the decedent, as a cross-petition. That answer by Bernice Steinberg, the daughter, admits all the allegations of the petition and joins in the prayer of the petition that the will be set aside. Appellants rely upon Morton v. Fast, 159 Ohio St. 380.
Appellants assert that the fact that Bernice Steinberg was named by the testator in the will as coexecutor of the decedent's estate, and qualified and appointed as coexecutor does not estop her from contesting the will. Appellants rely upon Allison v. Allison, 15 Ohio St.2d 44. In Allison, this court held that an executor may not maintain a will-contest action unless he resigns as executor.
The majority of this court is of the opinion that the rule stated in Allison should now be extended.
When Bernice Steinberg qualified and accepted appointment as coexecutor of her mother's estate under her mother's will, she assumed a solemn trust imposed upon her by her mother. As a fiduciary, she has an obligation to impartially carry out the provisions of the will. She should not, therefore, be permitted to place herself in a position of conflict with that obligation by becoming the petitioner in an action to set aside the will under which she has accepted appointment and is serving as coexecutor.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, HERBERT and DUNCAN, JJ., concur.
SCHNEIDER, J., concurs in paragraph one of the syllabus, but dissents from the judgment.