Opinion
Nos. 70-181 and 70-182
Decided April 14, 1971.
Wills — Who may contest — R.C. 2741.01 — "Person interested" — Determination.
APPEALS from the Court of Appeals for Clinton County.
The Common Pleas Court, finding that plaintiff-appellant, Exley Wical, was "not a person who has a right to maintain an action to contest the probated will of George E. Wilson, deceased," dismissed the petition of plaintiff contesting the validity of the paper writing dated July 11, 1964, and admitted to probate, as the last will and testament of decedent, on January 25, 1965.
Plaintiff is a nephew of decedent. In his petition contesting the 1964 will, filed July 19, 1965, he alleged that he "is a devisee and legatee under an unprobated last will and testament of the decedent * * * which plaintiff says is the true last will and testament of the said George E. Wilson * * *." The petition alleges also that defendant-appellant William Merriweather was a devisee and legatee under such will.
The petition alleges further:
"That said George E. Wilson died without issue or parents surviving, and he is the relict of Margaret Merriweather Wilson, deceased, and the said George E. Wilson died seized and possessed of certain real estate which is identical to that which came to him by devise from the said Margaret Merriweather Wilson, deceased.
"That plaintiff is the nephew of the said George E. Wilson, and the only child of Ora Wical, deceased, the said Ora Wical being the only sister, whether of the whole or half blood the said George E. Wilson ever had, the said George E. Wilson never having had any brothers, whether of the whole or half blood.
"That defendant William Merriweather is the nephew of the said Margaret Merriweather Wilson, deceased, and the only child of one Reuben Merriweather, deceased, the said Reuben Merriweather being the only brother, whether of the whole or half blood the said Margaret Merriweather Wilson ever had, the said Margaret Merriweather Wilson never having had any sisters, whether of the whole or half blood, other than one Allie Merriweather, who predeceased her without issue surviving.
"That defendant Julia K. Wilson is the surviving spouse of the said George E. Wilson, and the sole devisee and legatee named in said paper writing admitted to probate on January 25, 1965."
The answer of William Merriweather, filed July 20, 1965, also alleges that the proper writing admitted to probate on January 25, 1965, "is not the last will and testament of the said George E. Wilson."
The amended answer of the surviving spouse, defendant-appellee, Julia K. Wilson, denied "the existence of any unprobated last will and testament of the decedent * * * executed prior to the paper writing admitted to probate * * * on January 25, 1965," alleged that "by reason of the foregoing facts that this plaintiff has no right to maintain an action to contest the will," and prayed that "the question of his right to maintain such an action be heard and determined by this court before an issue is made up as to whether or not the present instrument is the last will and testament of said decedent."
In response to the request in the answer of the surviving spouse, the Court of Common Pleas conducted a hearing, after which it found that decedent had executed a prior will on December 22, 1962; that plaintiff was one of the beneficiaries under the 1962 will; that the 1962 will was no longer in existence, having been revoked by decedent when he burned it in a refuse container on July 10, 1964.
After the announcement of those findings by the Common Pleas Court, but before entry of judgment of dismissal, counsel for Wical and for Merriweather directed the court's attention to the fact that, under the allegations of the petition, both Wical and Merriweather were persons who would inherit from George E. Wilson under the "half and half" statute (R.C. 2105.10) if it were determined that Wilson had died intestate.
By supplemental opinion, the court denied reconsideration, stating:
"No effort was made to prove any part of the matters that counsel for plaintiff now state the court overlooked in this matter. No evidence was introduced as to any real estate owned by decedent at his death, that he had inherited from his predeceased wife, if there was any such real estate so owned and so inherited. No evidence was introduced as to any relationship (if there was relationship) of the plaintiff, Exley Wical, and the decedent, George E. Wilson. It must therefore be presumed that plaintiff waive[d] his right to introduce any evidence upon such questions or matters."
The Court of Appeals affirmed. Separate appeals, taken by Wical and Merriweather (Nos. 70-181 and 70-182), were consolidated for hearing in this court.
The cause is before this court pursuant to the allowance of motions to certify the record.
Mr. Kenneth O. Stone and Mr. Charles R. Kirk, for appellants.
Mr. P. Paul Pusateri, for appellee.
R.C. 2741.01 provides that a "person interested in a will" may contest its validity. A person interested, within the meaning of the statute, is one who 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 (1918), 97 Ohio St. 98. See, also, Bloor v. Platt (1908), 78 Ohio St. 46.
Both Wical and Merriweather would have had a direct pecuniary interest in the estate of George E. Wilson under the 1962 will. Assuming, however, that the 1962 will was validly revoked, both Wical and Merriweather would continue to have a direct pecuniary interest in that estate under the "half and half" statute (R.C. 2105.10), if the allegations of the petition with respect thereto are true. In re Estate of Sherick (1957), 167 Ohio St. 151; Kluever v. Cleveland Trust Co. (1962), 173 Ohio St. 177.
These allegations were not denied in the amended answer of Julia K. Wilson, surviving spouse. That answer denied only the "existence of any unprobated last will and testament of the decedent," and claimed that "by reason of the foregoing facts" (the nonexistence of any unprobated will), Wical had no right to contest the will. The evidence taken by the trial court was confined solely to that issue.
No claim has ever been made by appellee in any of the proceedings of this case that, in fact, Wical and Merriweather would not be beneficiaries of a portion of the estate if it be determined that George E. Wilson died intestate. It is only claimed that no evidence to such effect was adduced at the hearing held by the trial court. Since that hearing was held in response to the amended answer which asserted only that there was no unprobated will in existence, there was no reason for introduction of any evidence not related to that issue.
The conclusion of the trial court that Wical had "waived his right" to introduce evidence in support of an allegation of his petition, which has never been denied, is erroneous, and requires reversal of the judgment below. Thus, we need not pass on the other claims of error in respect to such judgment.
The judgment of the Court of Appeals, affirming the dismissal by the Common Pleas Court of the will contest case, is reversed and the cause remanded to the Common Pleas Court for further proceedings.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.