
    Coughlin, Appellant, v. The Passionist Monastery of the Holy Cross et al., Appellees.
    (Decided May 31, 1938.)
    
      Messrs. Greed (& Greed, for appellant.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly, Mr. Morris G. Bristol, Mr. Anthony B. Dunlap, Mr. Edward J. Dempsey and Mr. Walter A. Rycm, for appellees.
   Ross, P. J.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton county.

The action here under consideration was one to contest a will. A motion was filed to dismiss the petition because the action was not commenced within six months from the probate of the will sought to be contested.

It appears from the pleadings and transcript before us, no bill of exceptions having been filed, that the will was probated May 20, 1937, that the petition to contest was filed November 19, 1937, and that a praecipe for summons was added to the petition. The last will and codicil was filed with the clerk on November 23, 1937j and an amended petition filed December 4, 1937. Summons on the amended petition was issued December 4, 1937, returnable December 13, 1937 — the summons was returned — the endorsement stating that the same was received December 4,1937, and service made upon some of the many defendants December 8, 1937. Motion to dismiss the action was made December 20, 1937. Affidavit for service by publication was filed December 23, 1937, and entry for such service made the same day. Proof of publication was made January 11, 1938. The action was dismissed January 28, 1938. The proof of publication shows that the first publication was made January 10, 1938.

The question presented is: Was the action properly dismissed? Otherwise stated, had six months expired from the date of probate before summons was issued? Excluding the day of probate, the last day would have been November 21, 1937 — as this was Sunday, the last day for commencing the action was Monday, November 22,1937.

No action was taken upon the praecipe added to the original petition filed November 19, 1937. A new praecipe was attached to the amended petition, and it may be considered that the petition and first praecipe were abandoned.

It is claimed, however, that the action was, in effect, commenced under the provisions of Section 11231, General Code. This section is, as is Section 11230, General Code, inapplicable to the instant proceeding, which is governed by the provisions of • Sections 12087 and 30504-32, General Code, found in an entirely different division of the code from Sections' 11230 and 11231, which by their provisions are applicable only to the provisions of the chapter in which they appear.

In construing the provisions of Section 12087, General Code, the Supreme Court, in McVeigh v. Fetterman, 95 Ohio St., 292, 116 N. E., 518, held that this section, like the wrongful death section, states more than a mere limitation of action. The section provides a condition upon which the cause of action itself ceases to exist after the period mentioned in the statute. The court at pages 294 and 295 says:

“No right exists to maintain an action to contest a will except as it is specifically provided by statute, and the right thus conferred is subject to the conditions and limitations imposed. The right granted and the condition imposed go together; the one cannot be enjoyed without the restrictions and limitations of the other. * * *

“The decision of this court in the case of The Pittsburg, Cincinnati & St. Louis Ry. Co. v. Hine, Admx., 25 Ohio St., 629, similarly construes a provision somewhat analogous contained in a statute authorizing an action for damages sustained by reason of death caused by a wrongful act.

“It is there held that 'under the “act requiring compensation” for causing death by wrongful act, neglect, or default (S. & 0., 1139, 1140), which gave a right of action, provided such action should be commenced within two years after the death of such deceased person, the proviso is a condition qualifying the right of action, and not a mere limitation on the remedy.’ ”

And, again, on page 296, the court continues:

“The provisions' of the statute above cited relating to an action to contest a will clearly constitute more than a mere limitation upon the time of instituting the action, for it is expressly provided that a will duly probated and not contested within two years shall be forever binding.”

The section here referred to is now Section 10504-32, General Code, and is as follows:

“If within six months after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding, saving, however, to persons under any legal disability, the like period after such disability is removed, but the rights so saved shall not be effective as against a bona fide purchaser for value, a fiduciary who has acted in good faith, or a person delivering or transferring property under authority of a will to a duly appointed fiduciary or to any other person.”

The court, in McVeigh v. Fetterman, supra, commenting upon the provisions of Section 12087, General Code, as formerly existent states:

“Section 12087 formerly included within its saving clause ‘persons absent from the state.’ By amendment in 1898 (93 O. L., 81) that exception was dropped from the section. In view of the fact that nonresidents of the state are served by publication, a holding by the court that Section 11632 applies to nonresident heirs in will-contest cases, and grants to them an extension of time to contest a will, would completely cmnul the action of the Legislature amending Section 12087; for the clause dropped from that section would thus be reinserted by force of judicial construction. We may well adopt and apply here the language used by Justice Bradley in Case of Broderick’s Will, 21 Wall., 503: ‘The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; * * * and that the result attained should be firm and perpetual.’ ”

If this were a matter of first impression, we might be inclined to hold that the filing of a praecipe would represent the full extent of the party’s diligence within the meaning of the general statute applicable, Section 11279, General Code, which provides:

“A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”

However, in McLarren v. Myers, Admr., 87 Ohio St., 88, 100 N. E., 121, the syllabus is as follows:

“1. The saving provisions of Section 11231, General Code, relate to the service of a summons, and before the diligent endeavor therein referred to can avail to avoid the bar of a statute of limitations, there must have been a summons issued prior to the expiration of the period fixed by the statute.

“2. The burden of causing a summons in error to be issued in an error proceeding is imposed by law on the plaintiff in error, and Section 12270, General Code, being a.statute of limitations to be enforced as other similar statutes, the praecipe of plaintiff in error and his request to the clerk to issue summons will not stop the running of the statute or avoid the bar thereof if summons which is served on defendant in error is not issued prior to the expiration of the time fixed, unless facts are shown which bring the case within some saving provision of the law.”

This authority was followed in Zakrzewski v. Lenczycki, 129 Ohio St., 462, 195 N. E., 867.

It is our conclusion, therefore, that, under the facts stated, no action to contest the will in question was filed within six months of the probate thereof, as is provided in Section 12087, General Code, and that the action was not so commenced as required by the provisions of Section 11279, General Code. The appellant did not cause summons to issue within the specific limitation placed upon the existence of the cause of action.

The judgment is affirmed.

Judgment affirmed.

Hamilton and Matthews, JJ., concur,  