Clawson v. Davy , 21 Ohio App. 214 ( 1925 )

Proceedings in the lower court: This action in the court below was filed by Maggie Clawson, plaintiff in error herein, to contest the will of Mary A.C. Harwood. Defendants below answered, and by the first defense of the amended answer denied that Maggie Clawson had any interest in the estate or will of Mary A.C. Harwood, and therefore asserted she had no legal right to contest said will. The cause came on to be tried on the issue raised by the petition, the said first defense, and the reply thereto, and was tried by the court below on this issue, without the intervention of a jury, and the court below found for defendants and dismissed the plaintiff's petition. This is a proceeding in error to reverse that judgment.

Statement of facts: William Gilmore died intestate about the year 1902, leaving Mary A.C. Gilmore, his widow and sole heir at law surviving, and seized in fee simple of certain lands and tenements, all of which came to the said William Gilmore by purchase. Later said widow intermarried with one William Harwood, who preceded her in death, and without issue.

On the 7th day of April, 1921, the said Mary A.C. Harwood executed and delivered a deed to her brothers and sisters, etc., thereby conveying to them all her real estate, which deed was duly recorded in the deed records of Knox county, Ohio. Thereafter, to wit, on the 2d day of November, 1921, said real estate was reconveyed to Mary A.C. Harwood by her said grantees; the consideration named in the deed being "one dollar and other good and valuable considerations." Said deed was duly left for record and recorded on December 14, 1921, in the Knox county deed records.

Mary A.C. Harwood died October 31, 1922, leaving the will herein sought to be set aside.

The plaintiff, Maggie Clawson, is a niece of the first husband of testatrix, and no relation to testatrix.

Question: Under these facts and the law, is Maggie Clawson, the plaintiff in error, an "interested party," under the provisions of Section 12079, General Code of Ohio, and thereby entitled to prosecute a suit to contest the will of Mary A.C. Harwood, deceased?

If this inquiry be answered in the affirmative, then the judgment of the common pleas court must be reversed; otherwise affirmed.

This cause was ably presented to this court by learned counsel of the parties to the suit, in oral argument and written brief. We have carefully considered the suggestions made and questions discussed in oral argument, and have read and examined the authorities cited in the briefs of counsel.

Counsel for plaintiff in error in their brief say: "First. The question presented by the record is whether any conveyance or reconveyance of real estate destroys the ancestral quality in inheritance. Opposing counsel contend that any conveyance and reconveyance for an expressed valuable consideration of a dollar, whether there was any actual or real consideration is immaterial, will and does destroy the ancestral character. Opposing counsel does cite, or can cite and recite, on the holding or ruling of the Supreme Court of Ohio, in the case of Hasse v. Morison etal., 110 Ohio St., page 153, 143 N.E. 551, the first paragraph of the syllabus of which reads:

"``1. Where ancestral real estate is conveyed by quitclaim deed, based upon a valuable consideration, and afterwards the same real estate is reconveyed to the person who first conveyed it, and the deed of reconveyance recites a valuable consideration, the title thereby conveyed becomes one of purchase, and the same loses its ancestral quality.'

"If the case cited — the last decision of the Supreme Court of Ohio — is deemed and held applicable and controlling in the case at bar, then we have no case."

We commend counsel for plaintiff in error, who hold the "laboring oar" in this suit, upon their frankness and openness in telling us just where they stand, and we shall return in kind and say that we are unanimous in our conclusion that plaintiff in error "has no case" if the rules of law laid down in the case ofHasse v. Morison, supra, and the authorities cited therein, are applicable to and decisive of the facts in the instant case, which we find and hold.

It seems to us unnecessary to say more, except to remind counsel that this is the omega of this case so far as this court is concerned.

Judgment of the common pleas court is affirmed.

Judgment affirmed.

SHIELDS and PATTERSON, JJ., concur.