Petitt v. Morton , 28 Ohio App. 227 ( 1928 )

I deemed it wise in this case, because it interested me, to write a concurring opinion to the opinion of the court written by Judge Sullivan, and concurred in by the entire court.

It seems that Morton Petitt, the plaintiff in this action, was a nephew of Milton Morton, who died testate some time in the summer of 1905, leaving what purported to be a last will and testament, which was duly filed for probate, and William C. Morton was the sole beneficiary under said will, except for an annuity to two of his sisters, I believe, and perhaps his aunt, and he was named as executor in the will. That will was probated and administration was carried on by reason of the probation of that will. No contest of any kind had been filed, and for more than 20 years this condition of things lasted, when Morton Petitt brought his action for the purpose of having a trust declared in his favor upon the Savoy Hotel, a hotel situated on Euclid avenue in the downtown district of Cleveland. The value of the hotel does not appear, but it must be in the neighborhood of a million dollars, or more.

The questions propounded by this lawsuit are so novel and so interesting that I have taken the trouble to investigate and to read the authorities with more than usual care.

In the case of Kennedy, Exr., v. Walcutt, 118 Ohio St. 443,161 N.E. 336, decided March 21, 1928, from an opinion written by Judge Day, it would seem that one who was named in an unprobated will has such interest in the estate that he may contest the will.

If Morton Petitt had known of this will when this other will was probated, under the authority of the Kennedy case, supra, he would undoubtedly have had the right to file a contest against the will that was finally probated. It is claimed by the ingenious counsel for the plaintiff below that because Petitt could have contested the will, it therefore followed, as a matter of law, under the case of Seeds v. Seeds, 116 Ohio St. 144,156 N.E. 193, 52 A.L.R., 761, that he might have a trust declared where a will was subsequently found to be forged, and, taking the Seed's case as the basis, in which case a trust had been declared by a court of equity, then it is argued that one who was named in a will that never was probated might, because of his being entitled to contest the will, maintain a suit to have a trust declared in his favor; but does that follow? The petition in this case sets up the making of this will, in which Petitt was named as a devisee to the Savoy Hotel, and there are no allegations that it ever was probated. If there is anything in the petition on this subject it is to the contrary. Subsequently, a will was made by Milton Morton, which was drawn by William Morton, his son, and legatee, I believe in the handwriting of William Morton, and that will was signed by a mark and witnessed by three witnesses, I believe, and it was asserted in the petition that that will was a forgery, that Milton Morton did not sign the will at all, but that it was signed for him by William Morton, and that he was the sole beneficiary under this will, except for the annuities to his sisters, and that that forgery was not discovered until within the last four years, and it is argued that inasmuch as the Petitt will could not be probated, and the other will cannot be contested because the suit to contest a will must be brought within one year from the time of its probation, the only remedy that Morton Petitt would have would be to sue in a court of equity to have a trust declared, although it is asked, in the amended petition that was filed, that the probation of the will by the probate court be vacated and the probation set aside.

It is argued, however, by counsel for the plaintiff, that the court has no power to vacate the probation of a will, that the only remedy is by contest; and such was the holding, I believe, at least inferentially, in the case of Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 52, A.L.R., 761, Chief Justice Marshall rendering the opinion. Whether that be true or not is not for us to determine in the instant case, for no effort was made to probate this second will. It is said by counsel that the second will could not be probated. I do not know if that is true or not, but in the case of Stafford v. Todd, 17 Ohio App. 114, that question was fairly before the Court of Appeals of the Second Appellate District, and it held that where a will had been probated, and a contest filed in the common pleas court, and a subsequent will was offered for probate and the court refused to probate that will, a right of appeal to the common pleas court existed, even though the contest suit was still pending and the will had not been set aside, for the reason that the judgment in the contest of that will would not validate the other will and the party would have the right to appeal, holding, inferentially at least, that in the case of the probation of a will, and the subsequent discovery of another will, the subsequent will might be probated.

The question arose in this case in the following way: This petition already alluded to set up the making of this will in which Petitt was a devisee of the Savoy Hotel, and the subsequent making of the will that was finally probated, and that the subsequent will was a forgery; that the plaintiff had no redress in law, because the time for filing a protest had passed, and the plaintiff asked to have a trust declared in this property.

To this petition an answer was filed which denied the right of capacity of the plaintiff to bring the action, and, furthermore, set up the validity of the probated will; that it was duly made and properly signed; and that it was duly probated and an administration had under it.

Now there was no reply filed denying these allegations, but, on the contrary, a demurrer was filed, and on a hearing of the demurrer the court held that the demurrer was not well taken; in other words, that the answer set up a good defense, and, the truth of that being admitted, there was nothing further to do but enter up judgment. The plaintiff not desiring to plead further, a final judgment was entered, and proceedings in error were prosecuted to this court. That was the condition of the case at the time we heard it.

The right to the remedy that is sought for in this petition is based, it is claimed, on the Seeds case, supra. An examination of that case shows how far afield the pleader is in likening that case to the instant case. In that case a will had been made disinheriting those, who, but for the will, would have inherited the estate that was left by the decedent, and it was later discovered that that will was a forgery, made in the interests of the beneficiary of the estate, and that he was in possession and holding that estate. It was too late to contest this will by the heirs, and therefore they had no remedy unless it was a remedy in equity. Now the will in the Seeds case having been forged, it operated as a fraud upon the court and upon the heirs at law, and the holder of the legal title under that will would have had no interest in this property, except for the will, or, if he were one of the heirs at law, only a proportionate share of it, and it would have ousted the other heirs at law. If it had not been for this will which had been made and signed and probated, the heirs at law would have inherited this property, and therefore the will under which the claimant held being forged, the legal title being in him, it was for the benefit of the heirs that he had defrauded; but it must be borne in mind all the time that, but for this will, they were legally seized of this property and entitled to it in law. Now it is well to bear that in mind because, in the instant case, Petitt was not an heir at law, and had Milton Morton died intestate he would not have received anything, and the only reason he gets anything, if he ever does get anything, will be by virtue of his being named in this will. It does not follow that, because an unprobated will gives such an interest in the estate to one named therein that he may contest a will, he necessarily, therefore, is seized of an estate in the property left by the decedent. In this case Morton Petitt's right to this estate can only be predicated upon this will, and even though it were proven that the will under which William Morton, the defendant below, held and holds this property, was a forgery and set aside, it would not follow that the will upon which Morton Petitt sets up his claim is a valid will. If the will were probated it could be contested by William Morton and any other person interested in the estate, and it might have been shown that that will was a forgery, or made under undue influence, or that Milton Morton was not capable of making a will, or any other thing that would invalidate the will, and before Morton Petitt could recover he would have to have his will probated and his rights fixed and determined, and his title would accrue to him through and by virtue of his will.

Now if, by this sort of a proceeding, a trust may be declared in favor of a beneficiary under a will which never has been probated, a beneficiary who would not be an heir at law if the man died intestate, then it would obviously give the beneficiary under the unprobated will an advantage in this respect, that such a will would confer title upon him without having to run through the process of a contest. In other words, it would cut off those who were entitled to the estate to a right to contest this will. Consequently, there is such a vast difference between the Seedscase, supra, and the instant case, that it is difficult to understand the course of reasoning in the briefs.

Now, the defendant answered in this case and the question arose upon a demurrer to the answer. The defendant, in my judgment, need not have answered at all. I do not think that the petition sets up any claim that would warrant the court in finding for the plaintiff had there been no answer. Had there been a demurrer filed to the petition, it must necessarily have been sustained and judgment entered against the plaintiff, for the reasons already pointed out, that nowhere does the plaintiff show that he would be entitled to this property but for this will, and it is admitted by him that it was not and could not be probated. It is admitted by him that he cannot now set aside the other will, and, he not being an heir at law, therefore no title had vested in him.

So now we have this proposition: If I understand the rules of pleading, a demurrer searches the record and judgment must be applied to the first faulty pleading. That, I believe, is a fair statement of the effect of a demurrer filed in a lawsuit. Now the court overruled the demurrer, which showed that the answer was a good defense. I think that the court could have gone further, and could not only have overruled the demurrer to the defendant's answer, but could have sustained the demurrer to the petition. Now you must not say that there was no demurrer filed to the petition, because, as already pointed out, a demurrer filed by either party searches the entire record, and the first faulty pleading must have judgment entered against it, and, in my judgment, the plaintiff did not state a cause of action in his petition, because he could not have recovered in case no answer were filed, because, admitting all the allegations of the petition to be true, there is no allegation of a devolution of title upon him, either legal or equitable, and, before a trust can be declared, the title either legal or equitable must have been in him. While the legal title is in the defendant and the plaintiff's action is to have the defendant hold that in trust for him, the plaintiff must have the equitable right to the estate before he can have such a decree entered.

Consequently, I think the judgment of the court below was right, but it could have taken another form, that the petition did not state a cause of action and the demurrer would be sustained, but sustained to the petition. The judgment will be exactly the same, and therefore the judgment must be affirmed.