
    Gravier et al., Appellants, v. Gluth, Exrx., et al., Appellees.
    
      (No. 22964
    Decided May 12, 1954.)
    
      Mr. John J. Tetlow, Mr. William J. Tetlow, Mr. J. J. Sheehan and Mr. F. C. Duffy, for appellants.
    
      Messrs. Deibel, Elbrecht & Roberts, for appellees.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of this county, granting a motion to dismiss plaintiffs’ amended petition to contest a will on the ground of want of jurisdiction. The judgment of the trial court was based upon the allegations of the amended petition and the docket and journal entries, there being no bill of exceptions.

Edwin W. Bechler died August 18, 1950, leaving a will in which he named defendant Gluth as the executrix, and defendant Edith M. Boll the sole legatee and devisee. The will was admitted to probate on September 8, 1950. On February 27, 1951, three persons, Leona Gravier, Anna Bechler and Charles P. Bechler, filed a petition to contest the will. They named Catherine Gluth, executrix of the will, and Edith M. Boll, legatee in the will, as parties defendant; and they also named Mary Fredette, Arthur Faenrich and Emil Faenrich as parties defendant.

The petition alleged that the three plaintiffs and the last named three defendants were the only heirs at law and next of kin of the testator. With the petition, plaintiffs filed a precipe directing summons to be issued and served on the executrix and on the legatee-devisee. The precipe was silent as to other three defendants. Summons was issued for and served on the executrix and legatee-devisee, but no summons was served on the other three defendants; neither did the other three defendants, either then, or at any time thereafter, waive service of summons or enter appearance in the case as defendants. There was no constructive service on the unknown heirs at law of the testator; and any known heirs, not above mentioned, were not at any time made parties to the suit.

On January 15, 1953, twenty-seven months after probate of the will, an entry was made on the docket, reading as follows:

“Leave granted plaintiffs to amend caption of petition.”

Pursuant to such leave, there was written in ink in the caption of the original petition the following:

“Additional parties plaintiff: Margaret Bechler, Berlin, Germany; Martha Bechler, Berlin, Germany; Lucy Bechler, Berlin, Germany; Anna’ Bechler, Cullman, Alabama; John Bechler, Cullman, Alabama; Ernest Bechler, Berlin, Germany; Arthur Faenrich, 8216 Rosewood Avenue, Cleveland, Ohio; Emil Faenrich, 10215 Robinson Avenue, Cleveland, Ohio; Mary Fredette, 7719 Detroit Avenue, Cleveland, Ohio; Erika Bechler, Berlin, Germany; Eckart Bechler, Berlin, Germany; Elf a Bechler, Berlin, Germany.”

At the time of such leave and of such amendment of the caption by interlineation, the body of the petition was not amended, either by filing an amended petition, or by interlineation, or otherwise. Nothing then appeared in the petition disclosing whether “additional parties plaintiff” had any interest in the action.

Thereafter, defendant Edith M. Boll moved to require the petition to be made definite and certain to show the interest, if any, of the new parties plaintiff. In amending the caption, the original three defendants, namely, Mary Fredette, Arthur Faenrich and Emil Faenrich, had been transferred from the defendant side of the case to the plaintiff side under the caption of “additional parties plaintiff,” thereby leaving as the only remaining defendants the executrix and the legatee-devisee.

On March 31, 1953, the motion to make definite and certain was granted, and on April 17, 1953, thirty months after the probate of the will, an amended petition was filed. The three original plaintiffs and the three original defendants, plus nine other persons, were then named as plaintiffs. Thereafter, the defendant executrix and the defendant legatee-devisee filed a motion to dismiss the action for want of jurisdiction. The trial court treated the motion to dismiss as a demurrer and sustained the same. On rehearing, the trial court refused to vacate the order of dismissal.

Under this state of the record, the sole question presented for our determination is, “Did the trial court err in dismissing the action for want of jurisdiction?”

Section 2741.09, Revised Code (Section 12087, General Code), so far as applicable, provides:

“An action to contest a will or codicil shall be brought within six months after it has been admitted to probate * * *.” Likewise Section 2107.23, Revised Code (Section 10504-32, General Code) provides:

“If within six months after a will has been admitted to probate no person files an action to contest the validity of a will, the probate shall be forever binding, except * * *.” (Exceptions not material in this case.)

Section 2741.02, Revised Code (Section 12080, General Code), the predecessor of which was enacted in 1878, provides: “All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor and administrator, must be parties to an action under Section 2741.01 of the Revised Code.” (Emphasis supplied.)

Appellants here contend that the principle enunciated in Bradford v. Andrews, 20 Ohio St., 208, 5 Am. Rep., 645, is here applicable, the first paragraph of the syllabus of which reads as follows:

“1. Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.”

However, in Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, Weygandt, C. J., speaking for a unanimous court, stated at page 182:

“A careful study discloses not only that at the time of the Bradford case decision in the year 1870, Section 12080, General Code, had not been enacted, but that this section was not preceded by any similar statute. Hence, when the section was enacted in 1878, the provisions were new and, of course, were not under consideration in the Bradford case.”

This brings us to a consideration of a series of decisions by the Supreme Court, which, in our opinion, require the affirmance of the judgment of the Common Pleas Court in this case.

In Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142, the Supreme Court approved and followed the cases of McVeigh v. Fetterman, 95 Ohio St., 292, and McCord v. McCord, 104 Ohio St., 274, as indicated in paragraphs 1 and 4 of the syllabus. For purposes of this discussion, we think it helpful to set forth the syllabus of Case v. Smith, as follows:

“1. No right exists to maintain an action to contest the validity of a will except as it is specifically provided by statute. (McVeigh v. Fetterman, 95 Ohio St., 292, approved and followed.)
“2. The provisions of the statute relative to an action to contest the validity of a will are mandatory; the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.
“3. The sole beneficiary, under a will, who is neither an heir at law nor next of kin of the decedent, is not ‘united in interest’ with decedent’s heirs at law or next of kin.
“4. An action to contest the validity of a will is not commenced as to the heirs at law of testator by service of summons upon such sole beneficiary within six months from the date of probate, where such sole beneficiary is neither an heir at law nor next of kin of decedent. (McCord v. McCord, 104 Ohio St., 274, approved and followed.)
“5. In such action where none of the heirs at law or next of kin is served with summons and no person ‘united in interest’ with them is served within six months from the date of probate there is a failure of compliance with Section 12080, General Code, specifying who must be made parties, and the Court of Common Pleas is without jurisdiction to entertain such action.”

The trial court, while commenting on the “logic and good sense” of Bradford v. Andrews, supra, expressed the view that Case v. Smith, supra, is now the controlling authority which should be followed in the instant case.

From the facts above noted, it will be observed that the six months limitation prescribed by Section 12087, General Code (Section 2741.09, Bevised Code), terminated March 8, 1951.

It is here conceded that none of the heirs at law or next of kin was served with summons within the six-month period made a condition of limitation precedent for the right to sue, although three heirs at law were originally named as defendants. As in Case v. Smith, supra, only the sole beneficiary and the executrix were made parties and served with summons. In view of this factual situation, none of the heirs at law could be joined as defendants after the termination of the six-month period because none was united in interest with the sole beneficiary and executrix as provided by Section 11230 General Code (Section 2305.17, Revised Code), which, so far as applicable, provides as follows:

“An action shall be deemed commenced within the meaning of this chapter, as to each defendant, at the date of summons which -is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him.” (Emphasis supplied.)

Faced with this dilemma, the original plaintiffs then sought to join the three heirs at law originally named as defendants, but not served with summons, together with nine other heirs at law later discovered, as plaintiffs, but long after termination of the six-month period, on the theory that the said plaintiffs are united in interest with the original plaintiffs. This attempt is abortive, because there is no warrant for such action either by statute or at common law.

Section 11230, General Code (Section 2305.17, Revised Code), is unavailing to plaintiffs because by its express terms it is limited to defendants and codefendants. There is no similar statutory provision favoring plaintiffs who may be united in interest. Had summons been issued upon the original heirs at law named as defendants, followed by service upon them, we would be confronted with an entirely different situation by reason whereof the nine heirs at law might be joined as codefendants because united in interest as provided by Section 11230, General Code (Section 2305.17, Revised Code). However, as we do not have this question before us, it is not necessary to discuss or decide it. In any event, we are certain that the obvious jurisdictional defect in procedure cannot be cured by unseasonably transferring the three parties originally named as defendants to the plaintiff’s side of the petition, and belatedly adding other heirs at law as plaintiffs.

We think this proposition has now been definitely and finally established by the Supreme Court precluding this court from holding to the contrary, however much we might think it desirable to give all parties their day in court.

It is our conclusion that under the doctrine and authority of the cases of McVeigh v. Fetterman, supra; McCord v. McCord, supra; and Case v. Smith, supra, and the later cases of Peters v. Moore, supra; and Bynner v. Jones, 154 Ohio St., 184, 93 N. E. (2d), 687, to the same general effect, the Court of Common Pleas did not err in dismissing the action for want of jurisdiction; and the judgment is, therefore, affirmed.

Judgment affirmed.

Skeel, J., concurs.

Kovachy, J.,

dissenting.

The facts are fully stated in the majority opinion.

The case of Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142, in my opinion, is not factually identified with the instant case. It is true in both cases the heirs at law or next of kin commenced the action to contest the will against the sole beneficiary who was neither an heir at law nor next of ldn of the decedent, and the administratrix in one and the executrix in the other, as parties defendant, and obtained service on these defendants within the time limitation required by law. However, in Case v. Smith, the heirs at law or next of kin entered the lawsuit as parties defendant; whereas, in the instant case, they entered as parties plaintiff.

It seems apparent therefore, in the case of Case v. Smith, that since no heir at law or next of kin was made a party defendant within six months from the date of probate of the will, no party defendant united in interest with the new defendants was in the case and no action with respect to them had been properly commenced as required under Section 12080, G-eneral Code (Section 2741.02, Revised Code), the Court of Common Pleas was without jurisdiction to proceed with the action.

In the instant case, on the other hand, the new parties plaintiff were united in interest with the original plantiffs and the action was commenced in compliance with Sections 12087 and 12080, General Code (Sections 2741.09 and 2741.02, Revised Code), since it was instituted within six months after the date of probate of the will, with all classes of persons enumerated in the latter section made parties to the action either as plaintiffs or defendants, including the executrix.

The rule with respect to adding new parties plaintiff in a situation such as we have here is stated in 8 A. L. R. (2d), 28, paragraph (10), as follows:

“Where the attempt is made to add a new party plaintiff after the statute of limitations has run, the general rule is that where the original plaintiff seeks to enforce an independent right the amendment does not relate back and the defense of the statute of limitations is available against the added plaintiff, but that where the addition of the new party plaintiff is made necessary because of a failure in the first instance to join persons having a joint interest, the amendment relates back to the commencement of the original suit.”

The Supreme Court of Ohio applied the principle herein contended for by plaintiffs, in the case of Snider’s Exrs. v. Young, 72 Ohio St., 494, 74 N. E., 822, and states it in paragraph 1 of the syllabus:

“1. When some of the plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse the judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants.”

See Baughman v. Hower, 56 Ohio App., 162, 10 N. E. (2d), 176.

The new plaintiffs herein were all united in interest with the original plaintiffs, and consequently there was no attempt on their part to enforce an independent right. Their rights were consonant with and identical to those asserted by the original plaintiffs in the petition filed by them in this case. It is fortunate for these original plaintiffs that they were able to obtain the consent of all the new parties to be made plaintiffs, because only by such procedure were they able in this case to bring them into the lawsuit, under authority of Section 11256, General Code (Section 2307.20, Revised Code); since, under the circumstances, they could not have been brought in as defendants after the lapse of six months from the date of probate.

Section 11256, General Code (Section 2307.20, Revised Code), reads:

“Parties who are united in interest must be joined, as plaintiffs or defendants. If the consent of one who should be joined as plaintiff can not be obtained, or, he is insane, and the consent of his guardian is not obtainable, or he has no guardian, and that fact is stated in the petition, he may be made a defendant.”

The Supreme Court has held that rules of pleading not inconsistent with special statutes, are applicable in will contest cases. Morton v. Fast, Exr., 159 Ohio St. 380, 112 N. E. (2d), 385, paragraph 1 of syllabus:

‘ ‘ The rules of pleading generally applicable in a civil action should be applied in a will contest except where they are inconsistent with special statutory provisions relating to such a contest.”

It seems to me, therefore, that the trial court erred in holding that it was without jurisdiction to hear this case under the circumstances and facts therein, and that the judgment rendered by it should be reversed.  