
    ACTION TO CONTEST WILL.
    [Common Pleas Court of Union County.]
    Fannie Rockwell et al v. William L. Blaney et al.
    Decided, October 12, 1907.
    
      Wills — Right to Contest — Who are Proper Parties Plaintiff — Action Can not be Revived in Names of Heirs or Devisees — Sections 511¡ and 515J/ — Abatement of Actions.
    
    1. In a proceeding to contest a will, under tbe statutes of Oliio, only such parties as were interested in the will at the time of the probate thereof are proper parties plaintiff.
    2. If all the parties plaintiff die after an action is begun and before trial is had, the action can not be revived in the names of the heirs or devisees of such deceased plaintiffs.
   Brodrick, J.

May 13, 1905, Samuel Ryan, a resident of Jerome township, Union county, Ohio, made and published his last will and testament of that date, by which he made certain specific bequests to Abraham Raypole, Protection Lodge, No. 219 I. O. O. F. and Urania Lodge No. 311, F. & A. M., and a residuary bequest and devise to Jerome Special School District. On or about the 27th day of June, 1905, said Samuel Ryan died unmarried and childless.

On the 3d day of July, 1905, the last will and testament of said decedent was duly admitted to probate and record in the Probate Court of Union county, Ohio, the record disclosing that there were no known heirs of said decedent.

On October 2, 1906, Fannie Rockwell and Sarah A. Cornell, an insane person, a resident of the township of White Lake, county of Oakland and state of Michigan, by her guardian, William Rockwell, filed their petition in this court, alleging, in substance, that they are both cousins of said decedent, and his next of- kin and heirs at law, and contesting the validity of said last will and testament on the grounds of want of mental capacity of said testator and undue influence exerted by certain persons in the making of said will.

On April 23, 1907, one of the attorneys for said plaintiffs filed an affidavit in said ease, setting forth that said Sarah A. Cornell died on or about the 10th day of August, 1906, intestate, leaving said plaintiff, Fannie A. Rockwell, as her sole heir at law and next of kin; and that on or about January 28, 1907, said plaintiff, Fannie Rockwell, died testate, leaving William C. Rockwell, Arthur T. Rockwell and Myrtle Leach as her only children and next of kin and sole legatees and devisees of all her estate of every kind and nature, under and by the terms of her last will and testament.

This cause now comes on for hearing on motion of the attorneys to suggest the death of plaintiffs and for leave to substitute the legal heirs and devisees of said plaintiffs as parties plaintiff herein. This raises two questions:

First. Who are proper parties to contest a will; and,

Second. Is the interest of contestants transmissible before trial on the merits?

In the case of Taylor et al v. Taylor et al, in the Court of' Common Pleas of Hamilton County, Ohio, Vol. 5 N. P.—New Series, as reported in the Ohio Law Reporter, Vol. 5, No. 26, page 323, the court held:

“Under Section 5858, Revised Statutes, the right to contest a will after it has been admitted to probate is in those persons only who were interested in the will at the time of its probate; and this right does not pass to the heirs of one who was interested in the will at the time of its probate, and who died within two years thereafter without bringing such an action. ’ ’

The learned judge in the case before him cited a number of authorities and reached the conclusion:

“That the persons who are interested at the time of the pro-hate of the will are the only persons entitled to contest the will, and if they do not choose to contest it while they live, nobody else can do so.”

Section 4975, Revised Statutes, provides in a general way what causes of action survive.

Section 5144, Revised Statutes, provides:

‘ ‘ Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of -either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.”

This is a general statute applying to actions under the code generally, but is qualified by the words, ‘‘Except as olhertuise provided.”

Section 5154, Revised Statutes, reads as follows:

“[In whose oíame revived luheoi plaioiiiff dies.) Upon the death of the plaintiff, the action may be revived in the names of his representatives to whom his right has passed; if his right has passed to his personal representative, the revivor shall be in his name; and if it has passed to his heirs or devisees who could support the action if brought anew, the revivor may be in their names.”

This is a specific statute and would apply in this case in preference to the provisions of Section 5144'.

Tn the case' of Storrs et al v. The St. Luke’s Hospital, 180 Illinois Reports, page 368, in construing a statute which is substantially the same as the statutes of this state, the third and fourth clauses of the syllabus are as follows:

“3. [Parties; ivho oiot eovtiiled to file bill to set aside will aoul its probate.) A person not directly and pecuniarily interested in the estate of a deceased person at the time of the pro-bale of the will of the decedent, is not entitled to file a bill in equity to set aside the will and the probate thereof.

“4. [Bights aoid reonedies;- o’ight to file bill to contest will is personal.) , The right to file a bill to set aside a will and its probate is not assignable, nor does it pass to an heir by descent or inheritance.”

Commenting upon the right of the personal representative, the court say:

“The other appellant, the Chicago Title & Trust Company, administrator de boons oiooi of the estate of George M. Storrs, was not a proper party complainant here, because it had not such an interest as is contemplated by the statute. The administrator , de boons oiooi merely holds his title in ao.itre droit, as trustee, for,the purpose of distribution.”

If, then, the action under our statute, Section 5154, could not be revived in the name of the personal representative — and that is conceded by the attorneys for plaintiffs by their motion asking the heirs and devisees to be made parties plaintiff — it only remains to be seen whether such action could be revived in the names of the heirs and devisees under said Section 5154 of our statutes.

In the ease of United States v. Perkins, 163 U. S., 625, the Supreme Court of the United States say:

“While the laws of all civilized states recognize in every citizen the absolute right to his own earnings, and to the enjoyment of his own property, and the increase thereof, during his life, except so far as the state may require him to contribute his share for public expenses, the right to dispose of his property by will has always been considered purely a creature of statute and within legislative control. ’ ’

. If, then, the subject of wills is “purely a creature of .statute and within legislative control,” the General Assembly of Ohio had just as much right to limit the parties who might contest the will as it had to limit the time within which the action might be brought.

Section 5933, Revised Statutes, provides:

“If no person interested shall within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding, saving,” etc.

Now if the contest is limited in .the first instance to a person interested at the time of the probate of the will, and under Section 5154 above, the'limitation is “to his heirs or devisees who could support the action if brought anew,” what greater right is given to such heirs or devisees on motion for revivor than they would have to bring the action anew ?

In the 37 Iowa Reports, 207, the court has defined the word “revive” to mean, “To bring again to life, to reanimate, to renew; to bring into action after a suspension.” In order to revive an action, therefore, the power of original life must exist in order to reanimate, and, in my opinion, such power does not exist in the heirs and devisees who were not interested in the will at the time of its probate, to file a petition to contest its validity, and I do not believe that they have such power to "support the action if brought anew,” as brings them within the purview of Section 5154, Revised Statutes.

T. E. Powell and Porter c& Loughrey, for plaintiffs.

J. L. Cameron, McCrory & Cameron and F. Z. Ballinger, for defendants.

In Page on Wills, Section 325, the author says, "And where a contestant died after suit was brought, the court assumed, rather than expressly decided, that the action would survive, discussing at length the necessity of giving the heirs notice, and deciding such notice need not be given,” and cites in support of this the ease of Bonnemort v. Gill, 167 Mass., 338, but an examination of that case will reveal the fact that the only question passed upon by the court was the question of the necessity of giving notice to the heirs of one of nine appellants, who had died after the appeal had been perfected, and the case proceeded as to the other eight appellants, so that ease is easily distinguished from the case at bar, where there was in fact only one plaintiff, and she died before any hearing or trial whatever, and before any right had been established in her that might be transmissible, she having nothing but a mere statutory right incapable of being assigned or transmitted by descent or devise.

The motion to revive the action in the name of the heirs and devisees of the deceased plaintiff will therefore be denied.  