
    Sours et al. v. Shuler.
    (Decided January 13, 1932.)
    
      Mr. A. G. Fuller and Mr. B. E. Fuller, for plaintiffs in error.
    
      Mr. George H. Phelps, for defendant in error.
   Justice, P. J.

The action was brought in the court of common pleas of Hancock county to contest the validity of a certain paper -writing purporting to be the last -will and testament of Huldah Shuler, deceased.

The will was admitted to probate on December 8, 1928. The petition to contest was filed November 30, 1929. Summons was issued on December 3, 1929, for, and thereafter served upon, the defendants Clarence E. Hosier, as administrator with the will annexed of Huldah Shuler, deceased, W. E. Cunningham, Harry Chesebro, Marian P. Heminger and H. J. Chesebro. On December 4, 1929, an affidavit for service by publication for the defendants Isaac Shuler, Loren Chesebro, Albert Chesebro and Blanche McLaughlin was filed; the first publication being made on December 18, 1929. On June 17, 1930, a supplement to the petition to contest was filed in which plaintiff alleged the probation of the will as having occurred on December 8, 1928. On December 2, 1930, Lillie Shuler, John Shuler, Hattie Hosier and Clarence Hosier, individually, on motion of plaintiff and by leave of court, were made defendants and thereafter served with summons. On June 30, 1930, summons was issued for the defendant Clara B. Shuler, but same was not served upon her. On September 18, 1930, an affidavit for service by publication for Clara B. Shuler was filed; the first publication appearing September 19, 1930. On October 1, 1930, Mary A. Powell was, on plaintiff’s motion, made a defendant; and on October 3, 1930, she filed an answer to the petition.

The plaintiff is a daughter of Mary A. Powell, who was a sister of the full blood of the testatrix, and as such took from the decedent an undivided one-fourth interest in her real estate as a next estate of inheritance, which interest the said Mary A. Powell has conveyed by deed in fee simple to plaintiff.

The defendant Clara B. Shuler is a grantee by quitclaim deed from defendant Isaac Shuler, who in said will is named as devisee.

The defendant W. E. Cunningham is the surviving spouse of one Ollie Cunningham, who was a sister of the testatrix and who died childless and intestate at some time since the death of the testatrix.

The defendants Lillie Shuler, John Shuler, Hattie Hosier and Clarence Hosier, individually, are legatees under the will. All the other defendants are the lineal descendants of two deceased brothers of the testatrix.

The foregoing are the salient and controlling record facts in this case.

The case turned upon two motions. The defendant Clarence E. Hosier,.as administrator with the will annexed of Huldah Shuler, deceased, moved to dismiss the cause on the ground that “The court has no jurisdiction either of the subject-matter or of the parties necessary to the contest of a will.” The defendants Lillie Shuler, Hattie Hosier and Clarence Hosier moved to quash the service of summons on them on the ground that “The action was not commenced against them, and that they were not made parties until after the expiration of one year following the probate of the will of which they are legatees.” Both of these motions were sustained by the trial court and a final judgment dismissing the cause was entered. To reverse this judgment this proceeding in error is prosecuted.

The questions are:

(1) Is it necessary in a petition to contest a will to allege that the will has been admitted to probate?

(2) If so, and such an allegation has not been made, may it be supplied by an amendment, filed one year after the will was admitted to probate?

(3) If no legatee, devisee, or transferee of any legatee or devisee, was summoned within one year after the will was admitted to prohate, will a contest of the will lie ?

Section 12079 of the General Code provides, in part, as follows:

“A person interested in a will or codicil admitted to probate * * * may contest its validity by a civil action in the common pleas court of the county in which such probate was had.”

Clearly, by the terms of this statute, a proceeding to contest a will does not lie in the absence of an allegation that the paper writing, purporting to be a will, had been admitted to probate. Bartley, J., in the case of Matter of the Last Will of Hathaway, Deceased, 4 Ohio St., 383, said at page 386:

“Before probate, a will is without any legal effect, and can not even be made the subject of a proceeding to contest it. The form and solemnity of the proceeding to admit a will to probate, is required to show its due execution, and admit it to become a matter of public record.”

Turning now to the second proposition^ Section 11363 of the General Code, in part, provides:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding * * * by inserting other allegations material to the case * * *.”

In the instant case the plaintiff by leave of court filed on June 17, 1930, a supplement to the petition in which she alleged that the paper writing purporting to be the last will and testament of Huldah Shuler, deceased, had been admitted to probate on December 8, 1928. By this amendment, and such it should be deemed and considered to be, the omission in the petition, if such there be, is cured. To hold otherwise would be to ignore the plain provisions of the statute and thus defeat one of the purposes of its existence.

Coming now to the last proposition. Section 12080 of the General Code provides that:

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must he made parties to the action.”

Section 12087 of the General Code provides, in part:

“An action to contest a will or codicil shall be brought within one year after it has been admitted to probate.”

Section 11230 of the General Code provides, as follows :

“An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a co-defendant who is * * * otherwise united in interest with him. When service by publication is proper, the action shall be deemed to be commenced at the date of the first publication, if it be. regularly made.”

Section 11231 of the General Code provides:

“Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days.”

It will be observed that none of the parties summoned within one year after probation of the will, either personally or by publication, were beneficiaries or transferees of a beneficiary under the will. None of them summoned within the year had any financial interest in upholding the will. To the contrary, all who were summoned within the year were interested in having the will set aside and held for naught. It will be further observed that the curative provisions of Section 11231, General Code, have no application to the facts in this case.

Said Section 11230, General Code, has been construed by our Supreme Court. In the case of McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548, it is held:

“Codefendants are ‘united in interest’ within the meaning of the provisions of Section 11230, General Code, only when they are similarly interested in and will be similarly affected by the determination of the issues involved in the action.”

Applying this rule of law to the facts in this case, we are unanimously of the opinion that no will contest was pending within the purview of Section 12087, General Code, within one year after the will was admitted to probate.

All other claims of error have been considered, and we find them to be not well taken.

Holding these views, it follows that the judgment under review should be affirmed.

Judgment affirmed.

Crow and Klinger, JJ., concur.  