Mull v. Morris , 1 Ohio Law. Abs. 754 ( 1923 )

PARDEE, J.

Ep-tomized Opinion

Action by Myra Morris, legatee under he. mother’s will, against her brother, Fred Mull, ex ecutor. In her will the mother bequeathed $2,00' to her daughter, but provided that if the latter di< not claim the bequest within two years after he death, then it should go to her son. Morris live: in a distant st.ate and had not communicated with he mother for over twelve years before her deatl She did not claim the bequest until over two year after her mother’d death, but she had not been noti fied of the bequest by her brother and claimed tha he did not use reasonable diligence in trying t locate her. Before Mull bad completed his defens or the case had been rested, the trial judge rendere judgment over defendant’s objection and exceptpior In reviewing the judgment the Court of Appeal held: '

1. “We are therefore unanimously of the opini* that the failure of said plaintiff to claim said legae within the time specified in said will, prevented th same- from vesting in her, and that at the expiratio of said two-year period the same immediately veste in said defendant Frank Mull, and there was n duty imposed on him either by the will or by la’ requiring him to. search for or notify said p'lainti of her rights under said will, and if we should anne such conditions to .said bequest we would be addin conditions which the testatrix did not see fit to in-pose and would in fact be making a new will fc said decedent.” See 2 Chan. L. R. 656, 77 Pa. 283 293 Ill. 441; 74 Mich. 491; 16 Maine 158; 185 Mass 560.

2. It was erron for the trial court to render jud£ mént before defendants had a full and complete oj portunity to be heard, as this deprived them of thei constitutional right to have their day in court.