
    Feuchter v. Keyl et al.
    
      Wills — Probate of — Refusal to admit to probate, not conclusive against persons having no notice — Such persons may repropound such will— When executor named in will not a representative of the beneficiaries therein— When notice to him not notice to them.
    
    1. A new remedy provided by statute for an existing right, where it neither denies an existing remedy nor is incompatible with its continued existence, should be regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option.
    2. Where admission of a will to probate has been refused by the probate court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the court of common pleas from the order of refusal, are not concluded thereby, but may repropouud the will notwithstanding the former order of refusal has not been vacated.
    3. One named in a will as its executor, who does not accept the trust, is not the representative of the beneficiaries named therein, and, therefore, a notice to him of proceedings to px-obate the will should not be, by construction, extended to them.
    (Decided May 19, 1891.)
    Error to the Circuit Court of Summit county.
    These proceedings originated in the Probate Court of Summit county, in October, 1885, by the filing of a paper called a petition, in the following words and figures:
    “ To the Honorable C. R. Grant, Judge of the Probate Court in and for Summit county, Ohio.
    Your petitioners, Catherine Keyl and Elizabeth Dietrich, the children and heirs at law of Anna Kath Shook, nee Feuehter, a sister of the said John Feuchter, deceased, George Feuchter, Katherina Walser, Heinrich Feuchter and Christine Feuchter, the children and heirs at law of George Michael Feuchter, a brother of the said John Feuchter, deceased, respectively represent to your honor that by the terms of the last will and testament of John Feuchter, deceased, they are the devisees and legatees of all the said estate of the said John Feuchter, deceased, except the sum of one dollar, given thereby to one Henry Feuchter; that all of your petitioners are residents of Germany, in Europe, and, at the date of the death of said John Feuchter, the filing of said will in this court when proof was attempted to be taken of the execution and acknowledgment of said last will and testament, and judgment was attempted to be entered in this court, refusing to admit said will and testament to probate as the last will and testament of the said John Feuchter, deceased, were resident of and personally present in Germany, in Europe, and not within the county of Summit, or state of Ohio ; that although the place of residence of your petitioners was named in said will, and was well known to Henry Feuehter, the heir at law of all the estate of the said John Feuchter, deceased. Should said John Feuchter finally prove to have died intestate your petitioners, who are the parties interested in sustaining said will and in procuring it to be admitted to probate, had, at the time said last will and testament was offered for probate, no information, notice, or knowledge whatever of the existence of said last will and testament, or of the time fixed for hearing proof concerning the execution and acknowledgment of said last will and testament; that no personal service was had, or attempted to be had, upon petitioners, or either of them ; that no service by publication was had, or attempted to be had, upon them or either of them, and that no information or knowledge of the existence of said will, said hearing, or the pretended judgment which was entered in this court, refusing to admit said will to probate, on the 30th day of April, A. D. 1885, came to any of the petitioners until long after the expiration of ten days from the entry of said pretended judgment; and your petitioners further represent that neither the executor named in said will, nor any interested party offered said will for probate, and no party interested in sustaining said will was notified of the time fixed for said hearing, or present at said hearing; and that the only party present at said hearing was said heir at law, who was then and there represented by counsel.
    Your petitioners now bring said will into court, and present it herewith for the purpose of having it probated according to law.
    Your petitioners further say that said will was duly executed and attested by the said John Feuchter,'deceased; that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint.
    Wherefore, your petitioners pray that the pretended judgment heretofore, to wit; on said 30th day of April, A. D. 1885, entered by the court in its journal, refusing to admit said will to probate as the last will and testament of the said John Feuchter, deceased, may be vacated, set aside and held for naught; that a day may be appointed by the court to take proof concerning the execution and acknowledgmént of said will; that due and legal notice of the date of said hearing, and of the prayer of this petition may be served on all parties in interest, and especially on Henry Feuchter, the heir at law of John Feuchter, deceased, and on the executor named in said will, and said will may be admitted to probate as the last will and testament of the said John Feuchter, deceased, and letters testamentary granted and issued thereon.”
    This petition, upon the motion of the plaintiff in error, was dismissed by the probate court. The defendant in error appealed to the court of common pleas, where, upon motion of the plaintiff in error, the appeal was likewise dismissed. The defendants in error then carried the case to the circuit court on error, which latter court reversed the judgment of dismissal, and remanded the cause to the court of common pleas, to be further proceeded with according to law. "Whereupon the plaintiff in error instituted proceedings in error in this court to reverse the judgment of the circuit court and affirm that of the court of common pleas.
    
      JT. D. Tibiáis, for plaintiff in error.
    I. As to the judgment of April 30, no notice of an intention to appeal was filed within ten days, nor was a certified copy of the order of the probate court filed before the next term of the court of common pleas, as required by secs. 5934 and 5. Nor was a bond given within twenty days after the making of the order. Sec. 6408. The judgment of October 1 was not one refusing to admit the will to probate. The order from which an appeal was attempted to be taken, was not appealable under any provision of the statute. Sec. 6407.
    II. The record shows that the probate court did not even consider it in the light of an application to probate the will, only the motion to dismiss or strike off was heard, considered or determined. It was only the question whether the probate court had power to vacate such former order.
    The record shows that the probate court simply heard the motion, sustained it and dismissed the petition for want of power to hear it, for want of jurisdiction.
    There certainly can be no doubt that the purpose was to file the petition under secs. 5354, 59, 5360 and 5365, Revised Statutes. Of course on this hearing, and in this contention, we cannot determine the question whether the probate court erred in granting the motion and dismissing the petition; that can only be raised on petition in error to the probate court. But the parties saw fit to appeal.
    It would only need the citation of the case of Johnson's Executors v. Johnson et al., 26 Ohio St. 357, to show that the probate court had absolutely no legal power to vacate its former order, hence did not err in dismissing the then plaintiff’s petition. See also Styner's Case, 33 Ohio St. 491.
    What then was there to appeal from; only an order refusing to entertain and dismissing an application to vacate a former order rejecting and refusing to probate a certain paper as a will. I maintain that no appeal lies from such an order. It is in no sense a refusal to admit a will to probate under secs. 5934 and 5. The order rejecting the will was made April 30, four and one half months before the attempt to appeal was made. No testimony was heard or offered on the last hearing; at most only an application to fix a time to take testimony, in case the former order was vacated; there was no refusal by the court to pass upon the validity of the will.
    The appeal provided for, is from an order rejecting the will. There can be no rejection except on hearing evidence, reducing it to writing, filing and adjudicating upon it, adversely to the validity of the will. The probate court on the 1st of October made no holding or decision on the probate of the will, had no hearing on that subject matter, was not asked to take any testimony, at that time, or made any-ruling concerning the will; all this appears very clearly from the record. Under similar statutes, it has been held that appeals do not lie. Henly v. Hastings, 3 Cal. 341; People etc., ex rel. Green, 43 Cal. 225; Blum v. Bowerstone, 50 Cal. 293; In re Estate of Smith, 51 Cal. 563; Eureka, etc. R. R. Co. v. McGrath, 74 Cal. 49; Aultman Miller & Co. v. Seiberling Co., assignee, 31 Ohio St. 201; Brigel v. Starbuck, 34 Ohio St. 280.
    III. In this contention, it is also sought to raise the question, and review the action of the probate court, as to the sufficiency of the notice on which the court heard the testimony and rejected the will on April 30. But in no event can that question be raised here, or could it have been in the common pleas court on the motion to dismiss the appeal. It was an adjudication made under a statute of this state, and the order remained in full force, unreversed and not appealed from. If the court erred or had no jurisdiction of the parties for want of notice, error alone would be the remedy. Lessee of Swazey Heirs, 8 Ohio, 19; Morningstar v. Selby, 15 Ohio, 364; Taylor, Assignee, v. Fitch et al., 12 Ohio St. 169; Frazier v. Williams et al., 24 Ohio St. 625.
    IY. The effort, if made here, to show that the application of September 14 was a repropounding of the will for probate, is not only disposed of by the record, but the change in the statutes on that subject, since the decisions in the cases of Chapman's Will, 6 Ohio, 148; Hunter's Will, 6 Ohio 499 and Lessee of Swazey's Heirs, 8 Ohio 5, clearly settles the question, that no repropounding of a will can now be had under our present statutes. Chase Stat., vol. 2, pp. 930,1305-7 and vol. 3, 1785-7. Another mode of redress was provided by the statute, namely, a contest in another proceeding.
    It is not perfectly apparent that the probate is binding because a remedy by contest is provided, and a refusal to probate is not final, because no means of redress are provided, and for that reason the legislature provided the means in the way of an appeal to the common pleas, when under section 5935. Can it be successfully claimed that both these remedies are open to parties desiring the probate of a will? Suppose the common pleas rejects the will, can it be again propounded in the probate court ? Why not, if a refusal to probate is not final. To avoid all this delay and uncertainty, and to have the action of the probate court in case of refusing, or admitting' to, probate, equally final and binding, the legislature provided the remedy in each case, one by contest before a jury, the other an appeal to, and hearing by, the common pleas court, and these modes are exclusive and intended to be so.
    
      This view was fully sustained by the holding of courts under similar statutes. Langkton v. Atkins, 1 Pick. 549; Inhabitants Dublin v. Chadbourn, 16 Mass. 433; Tompkins v. Tompkins, 1 Story R. 552; Bailey v. Bailey, 8 Ohio 339, Poplin v. Hanks, 8 N. H. 124.
    
      Charles Baird and Edwin E. Voris, for defendants in error.
    Plaintiff in error in his brief either misconceives or misstates the nature of the proceedings in the probate court.
    Our petition was not for the vacation of a former order under sections 5354, 5359, 5360 and 5365 of the statutes. No grounds are stated in the petition which would bring it within the provisions of those sections. We claimed that the order of April 30, 1885, was a nullity, and that we had a right to offer the will for probate as if no such order had ever been made. It was perhaps not necessary to file a petition. All that was really necessary was to go before the court with the will and ask to have it probated; but we wished to get upon the records of the probate court, at the same time that we offered the will for probate, the facts which show that the order of April 30, 1885, was a nullity. To this end we set up in the petition that the order of April 30, 1885, was entered by the probate court without notice of any kind, either actual or constructive, to the defendants in error, or any of them, and that no one interested in having the will proven was notified or appeared in court to sustain the will. Our application was for the probate of the will; and the will itself, as the petition shows, and as the fact is, was offered for probate with the application.
    The appeal taken by us from the probate court was not an appeal from an order refusing to vacate a former order, but an appeal, under sec. 5934 of the statutes, from the refusal to admit the will to probate; and all the authorities cited in the brief of plaintiff in error upon the question as to whether the right of appeal lies from an order refusing to vacate a former order have no application whatever to this case.
    The repropounding of a will, as was done in this case, is no new thing. Prior to the passage of what is now section 5934 of the statutes, it was the recognized law of Ohio that “ an application to prove a will, though rejected, may be made again upon fuller proof. The rejection extinguishes no right, and binds nobody, for there are no proper parties before the court to be concluded.” Chapman's Will, 6 Ohio, 149; Hunter's Will, 6 Ohio, 499 at 502; Swazey v. Blackman, 8 Ohio, 5 at 19.
    Sec. 5934 has perhaps changed the law of Ohio to this extent, that all interested in having a will probated, who were before the court either by proper notice or voluntary appearance at the time of the refusal of the probate court to admit it to probate, are bound by such refusal, unless they appear as provided by the section. But this section certainly does not change the law as to those interested in having the will admitted to probate, but who have no knowledge or notice of the proceeding until more than ten days after the refusal to admit the will to probate. As to such, the rejection extinguishes no rights. The provisions of the Revised Statutes bearing upon the questions involved are found in the following sections: 5917, 5933, 5920, 5921, 5926 and 5934.
    The persons interested in having the'will admitted to probate shall have notice in some manner of the time when the will is to be offered for probate, and an- opportunity to be heard in favor of sustaining the will. Peoria & Rock Island Railway Co. v. Warren, 61 Ill. 52; Atlanta & H. L. R. R. Co. v. Conis, 51 Me. 36; Central Turnpike Co., 7 Pickering 13; Warren Hinckley et al., Petitioners, 15 Pick. 447; Porter v. County Commissioners of Norfolk, 13 Metc. 479; Dickey v. Tennison, 27 Mo. 373; State v. Mayor, 24 N. J. Law 662; Chosen Freeholders v. The State, 24 N. J. Law 718; Vantilbury v. Shann, 24 N. J. Law 740; Chase v. Hathaway, 14 Mass. 222; Windsor v. McVer, 93 U. S. 274; Woodruff v. Taylor, 20 Vt. 65; Bradstreet v. Neptune Ins. Co., 3 Sumn. 607; Booneville v. Omrod, 26 Mo. 193; Corliss v. Corliss, 8 Vt. 373, at 389; Earle v. McVeigh, 91 U. S. 503.
   Bbadbtjry, J.

The only question presented to this court by the record in this cause, is whether the defendants in error had a right to carry to the court of common pleas by an appeal, the proceedings begun by them in the probate court. That right depends upon (1) whether that proceeding is to be construed as an offer to repropound the will of John Feuchter, and (2) were they bound by the order of April 30, 1885, of the probate court, refusing to admit it to probate. The plaintiff in error, without denying the general right of every person interested in the probate of a will, to appeal from an order refusing to admit it to probate, contends that the proceeding begun by the defendants in error was n.ot properly an offer to repropound the will, but was, when correctly construed, a proceeding to set aside the former order of the probate court, and that the order of the probate court dismissing the petition, was one refusing to set aside that former order, and not one refusing to admit the will to probate, and, therefore, did not fall within section 5934, Revised Statutes, which authorizes an appeal from an order of a probate court refusing to probate a will. Plaintiff in error further claims, that the order of the probate court, made April 30, 1885, refusing to probate the will, not having been appealed from, is binding on all parties claiming under the instrument, and precludes them from again presenting it for probate. If the plaintiff’s contention, in either respect, is correct, he should prevail. We will consider first the character of the order of the probate court, made April 30,1885, refusing to admit the will to probate, and the circumstances under which it was made.

The first step taken that led to the making of that order was a notice by a postal card, mailed Thursday, April 23, 1885, to the person named in the will as executor, that it would be offered for probate on the following Saturday (April 25). He appeared at the hour named, and after hearing the will read, left the court before any testimony was taken, and has not since appeared, accepted the trust, or taken any apparent interest in the matter. No attempt was made to give any other notice, and, in fact, the defendants in error, though the only beneficial devisees under the will, had no knowledge that it was to be offered for probate, or of its rejection, until the time prescribed by statute, within which an appeal could be taken, had elapsed.

It is a fundamental principle of all rational systems of jurisprudence that one having no notice, either actual or constructive, of a judicial proceeding, should not be concluded by it. The principle is forcibly stated by Justice Field in Windsor v. McVeigh, 93 U. S. 274. “Wherever one is assailed in his person or property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal,” Id. 277. It is said that notice to the individual, who had been named in the will as the executor thereof, was by relation notice to all the devisees therein. It is no doubt true that an executor, after he has accepted the trust and entered upon its execution, is in many respects the representative not only of the estate, but of all persons interested therein. This principle, however, cannot reasonably be extended to a case, like the one before us, where the person named as executor repudiates the trust, and never in the slightest degree enters upon its execution. He is in all essential respects a stranger to the parties, and not their representative.

The rights of the defendants in error, however, do not depend solely upon this universal principle. By the law of Ohio, as declared by this court at an early day, the refusal to propound a will is not conclusive of the right to propound it, but, instead, it may be offered again for probate at the pleasure of any one interested therein. In the Matter of Chapman’s Will, 6 Ohio 149; Hunter’s Will, Id. 502; Swazey v. Blackman, 8 Ohio, 5-19. In 6 Ohio, 149, Lane, J., says: “An application to prove a will, though rejected, may be made again, upon fuller proof. The rejection extinguishes no right, and binds nobody, for there are no proper parties before the court to be concluded.” In Hunter’s Case, 6 Ohio, 502, Weight, J., uses the folio wipg language: “ The application to make probate of a will is not included in the definition either of an action or suit. It belongs neither to the common law nor equity jurisdiction conferred upon the court of common pleas, but appertains to the ecclesiastical jurisdiction of the English courts, which is specially conferred upon our courts of common pleas as courts of probate. The proceedings to make probate of a will are ex parte, not adversary. No process is required to notify any whose interests are to be affected. No one is necessarily before the court, other than the party applying to prove the will. No judgment is given. The order of probate is not conclusive upon the subject of it, for the statute law expressly provides a way in accordance with the common usages of chancery to contest and vacate the probate, if allowed. If rejected, another application may be made, and probate established on new and better proof.”

G-kimke, J., in 8 Ohio, 19, says: “ When a will of real property is offered for probate, in Ohio, a sentence of some kind is pronounced upon it; the proof is declared to be sufficient or insufficient; in the one case it is accepted, in the other rejected. If it is rejected, it may still be repropounded for probate.”

It is contended, however, on behalf of the plaintiff in error, that whatever the rule in this state may formerly have been respecting the right to repropound a will after it has been rejected, the right no longer exists; that the right of appeal provided by statute since the cases in 6 Ohio and 8 Ohio, supra, were decided, supersedes and renders unnecessary the right to repropound a will in the probate court after its rejection there. It is true that, at the time those cases were decided, there was no right of appeal from a refusal to admit a will to probate, and that subsequently such right was provided by statute, and is now embodied in the revision of 1878, section 5934, Revised Statutes: “In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal .within ten days.”

The policy of this state from an early period in its legal history has favored the probating of wills. The present statutes, as well as those that preceded them for fifty years, or more, regulating the practice on this subject, have not authorized one opposed to probating a will to support his contention by evidence; to secure this right he has constantly been driven to an independent action, and, since the adoption of the constitution of 1851, to a new tribunal, while the fullest hearing is and has been accorded to those seeking to propound the will. Before the organization of the probate court under the constitution of 1851, no appeal from an order rejecting a will was provided, for none was needed. The court of common pleas had jurisdiction of the subject, one of whose members, by a well established custom, was usually learned in the law, and if a will was offered for probate in the absence of such member, the right to repropound it when he was present gave reasonable assurance that the legal sufficiency of the evidence introduced for that purpose, would be determined by a competent tribunal.

When the probate courts were organized under the constitution of 1851, and jurisdiction of the probate of wills conferred upon them, this important question 'was left to the determination of a single judge, who neither by the statutes of the state, nor by any established custom was required to be a lawyer, and thus the gravest and most valuable interests might be finally determined by one wholly unlearned in the law, if no means were provided to review his action. At this juncture an appeal from a refusal to probate a will was first provided. It was a new remedy to enforce an existing right, and neither in the language selected by the legislature in giving the remedy, nor in the circumstances that attended its adoption, is there any indication of a purpose to make it exclusive. The new remedy is consistent with the continued existence of the old one. They are concurrent remedies to enforce the same right; and the rule is that a new remedy provided by statute does not destroy or take away the old one if the two are compatible. Darling et al. v. Peck et al., 15 Ohio 65; Com’s v. Orr et al., 16 Ohio St. 522; Carter v. Jennings, 24 Ohio St. 182; Black v. Hill, 29 Ohio St. 86. In Darling et al. v. Peck et al., 15 Ohio, 71, the court say: “ Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is, to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress.”

The question whether the proceeding begun in the probate court by the defendants in error is to be regarded as an offer to propound the will of John Feuchter, remains to be considered.

. The paper, called a petition, filed by the defendants in error, sets forth the circumstances attending the former rejection of the will by the probate court, and asks that the order of rejection be vacated. It is not material to inquire into the motives of the defendants in error’ in pursuing this course; they may have believed the former order of rejection could be successfully pleaded in bar of their application if not vacated, or they may have been actuated by considerations of extreme caution. In any event, it was not necessary, for the former rejection, as held herein, did not bind them. It is manifest, however, on the face of the application that the object of the defendants in error was to probate the will; the vacating of the former order was ancillary to it, merely. They say in express terms: “Your petitioners now bring said will into court and present it herewith for the purpose of having it probated according to law,” and they pray that “said will may be admitted to probate.” Upon a fair construction this must be held to be an offer to repropound the will.

So of the order of .the court from which the appeal was taken; it was made upon a motion to dismiss the petition, and was in terms a dismissal thereof; it did not contain a word about rejecting the will or refusing its admission to probate. In matters of practice, however, affecting the remedy, courts disregarding the mere forms of entries, should look to the substance of what has been done. The defendants in error had in the probate court a will which they were offering to propound; the proper practice was to hear the evidence, and either reject or admit it to probate. An order is made upon a motion that defeats the proceedings. This order is, in effect, a refusal to probate the will, and should be so regarded, though clothed in language that does not declare this result in express terms.

Judgment affirmed.

Minshall, J.

(dissenting). The giving of the right to appeal in a certain time from the rejection of a will offered for probate, would seem a very useless provision, if, as held, the will may be again propounded at any time thereafter, from which an appeal may then be taken if again rejected. The object of the statute giving the appeal was not, as I think, merely to add a new remedy, but to obviate the mischief under the former practice, by making the action of the court refusing the probate of the will, a finality, unless appealed from in the time limited — the former practice having resulted from the fact, that there was no appeal from the rejection of a will when offered for probate.

It is true that parties without actual notice may thereby be concluded; but they are only such as may derive title under the will, and not otherwise, as the heirs of the testator, if residents of the state, must have notice, and also the executor named in the will.

The right to make a will is derived from statute, it does not exist at common law. And I do not perceive how those who derive their claims from a statute, can be heard to complain of what is given them by statute, or of the terms upon which the statutory right is given. Moreover, the beneficiaries of the will are, as I think, represented bjr the executor in such matters; and, for such reason, the statute requires notice to him; and such notice is all they can require. The construction given the statute leaves the controversy as to a rejected will, open for an indefinite time, and must suspend or embarrass the settlement of the estates of deceased persons.  