Opinion
No. 37588
Decided March 13, 1963.
Executors and administrators — Inventory and appraisement — Exceptions filed thereto — Application by executor to amend by adding claim against person — Parties to proceeding — Collateral interest.
In a proceeding in the Probate Court, where an exception to the inventory and appraisement in an estate is filed on the ground that a claim against a certain person should be included in the inventory and appraisement, and an application by the executor of the estate is filed to amend the inventory and appraisement to include such claim against this person, the exceptor and the executor are parties in the proceeding. The person against whom it is contended such claim should be made has a collateral interest in this proceeding, but he is not a party in such proceeding, where he does not enter his appearance therein and oppose the proposed changes in the inventory.
APPEAL from the Court of Appeals for Sandusky County.
This cause arose in the Probate Court of Sandusky County upon the filing, by the executors, of an application to amend the inventory and appraisement in the estate of William H. Haas, and the filing of exceptions to the inventory and appraisement by Northwestern University, a legatee under the will of Haas.
In 1945, Haas, a retired professor of geology and geography at Northwestern University, established "the William H. Haas and Marian M. Haas Research Fund."
On March 17, 1958, Haas executed a will, item third (c) of which provides as follows:
"To Northwestern University, Evanston, Illinois, to be added to the William H. Haas and Marian M. Haas Research Fund for the Department of Geography, two hundred (200) shares of the common stock of United States Steel Corporation, if I own such stock at the time of my death."
At the time of the execution of his will, Haas owned 400 shares of common stock of the United States Steel Corporation.
The inventory and appraisement of Haas' estate listed shares in 25 separate corporations, valued at $132,468.42, none of them being shares of the United States Steel Corporation.
Northwestern University excepted to the inventory and appraisement on the ground that 200 shares of the common stock of United States Steel Corporation had been omitted from the inventory.
The executors requested that the inventory and appraisement be amended by adding to schedule D the following:
"A claim against Florence P. Stearns, 1105 Asbury, Evanston, Illinois, for the appropriation of three hundred (300) shares of common stock in the United States Steel Corporation, formerly owned by decedent, William H. Haas, value of claim at this time is unknown."
Prior to a hearing upon the exceptions to the inventory and appraisement and pursuant to a special commission issued by the Probate Court of Sandusky County, Mrs. Stearns' deposition was taken in Evanston, Illinois. She was represented by an attorney who participated in the taking of the deposition. Mrs. Stearns refused to sign the deposition.
The depositions of Turnbull, Haas' physician, and Peterman, an Evanston, Illinois, banker, were taken the same day.
Notice of the hearing on the inventory and appraisement, the exceptions thereto and motion to amend the same was properly given to all interested persons, including Mrs. Stearns and her attorney. Neither Mrs. Stearns nor her attorney attended the hearing.
No exceptions to any of the depositions were filed prior to or during the hearing in the Probate Court.
After hearing, the court found that 100 shares of United States Steel stock belonging to the decedent were pledged to The First National Bank of Evanston to secure a loan of Mrs. Stearns and were subsequently sold for $9,970.86 and the proceeds applied in reduction of the debt.
The court found further that, at the time of his death, Haas was, therefore, the owner of a claim against Mrs. Stearns for $9,970.86.
The court found further that 200 additional shares were eventually assigned directly to Mrs. Stearns.
The court ordered that the inventory be amended to include a claim against Mrs. Stearns for $9,970.86, plus interest, and that, if she failed to pay, such claim be set off against her distributive share of the estate.
The court ordered that the inventory be further amended to include a claim of unknown value against Mrs. Stearns for 200 shares of stock of United States Steel Corporation.
The inventory was approved as amended.
Mrs. Stearns appealed on questions of law to the Court of Appeals.
The Court of Appeals reversed the judgment of the Probate Court and remanded the cause for further proceedings according to law.
The grounds upon which the Court of Appeals reversed the judgment of the Probate Court were that Mrs. Stearns' deposition was "not a deposition" because she had neither signed it nor waived signature; that Turnbull's and Peterman's depositions were not taken on written interrogatories; that the proceeds of the sale of 100 shares of United States Steel stock, in the amount of $970.86, applied to the debt of Mrs. Stearns were not appraised by the appraisers of the estate; and that a stipulation of fact was made in the Probate Court, to which Mrs. Stearns was not a party.
This cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Leo W. Kenny, for appellant, Northwestern University.
Messrs. Culbert, Hyzer Culbert, for appellee, Florence P. Stearns.
Mr. William F. Aigler, for the executors.
The appellee, Florence P. Stearns, contends that the judgment of the Court of Appeals is proper upon the grounds (1) that she was an adverse party in the cause before the Probate Court, (2) that she did not receive written notice of the intention to take her deposition and those of Turnbull and Peterman, as provided in Section 2319.15, Revised Code, (3) that the depositions of Turnbull and Peterman were not taken upon written interrogatories as required by Section 2319.14, Revised Code, and she did not waive this requirement, (4) that she did not receive notice of the time and place of hearing on the motion to take the above depositions as provided by Sections 2309.69 and 2309.70, Revised Code, and (5) that she refused to sign her deposition as required by Section 2319.18, Revised Code, and did not waive the provisions of this section.
She takes the position, therefore, that her deposition was "not a deposition" under the law, and that the depositions of Turnbull and Peterman were not properly admissible in the record.
Mrs. Stearns did give her deposition voluntarily and was represented by counsel at the taking of the deposition.
Stipulations were entered into by counsel for the executors and counsel for Northwestern University, prior to the taking of the depositions, at the time of the taking of the depositions and at the time of trial before the Probate Court, waiving the provisions of the statutes to which Mrs. Stearns refers, in accordance with the provisions for waiver of such statutes.
The fallacy in the position of Mrs. Stearns and the error in the judgment of the Court of Appeals are that Mrs. Stearns was not a party in the proceeding before the Probate Court. The parties in such proceeding were the executors, whose motion requested an amendment to the inventory and appraisement, and Northwestern University, which filed an exception to the inventory and appraisement. Mrs. Stearns was only collaterally interested in this proceeding. Therefore, the provisions of the statutes referred to by Mrs. Stearns have been complied with in respect to all the parties to this proceeding or have been properly waived by all such parties.
Where exceptions are filed to an inventory and appraisement of a decedent's estate and its appears that there was sufficient evidence presented at the hearing to support the finding of the Probate Court, a reviewing court will not interfere. In re Estate of Hatch, 154 Ohio St. 149.
This court will not interfere with that portion of the judgment of the Probate Court which orders "that said inventory be amended to include a claim against said Florence P. Stearns in the amount of $9,970.86 [being the proceeds of the sale of one hundred shares of stock by The First National Bank Trust Company of Evanston on October 12, 1959, which amount was applied to her debt to the bank], with interest at 6 per cent per annum from October 12, 1959, to the date of payment." However, the Probate Court erred in that portion of its judgment which provides that "failing payment, such claim be set off against her distributive share as a beneficiary of said estate."
Mrs. Stearns was not a party to that proceeding; therefore she has no right to appeal from a judgment therein. She is entitled to her day in court in any litigation to recover upon the above claim or any litigation to obtain a setoff in the amount of this claim or any part of it against the bequest to her under the will.
The contention of Mrs. Stearns that the Probate Court could not enter the cash price for which the stock was sold as its appraised value on the inventory and appraisement, without appraisal by the appraisers, is without merit. See Sections 2115.02 and 2113.69, Revised Code.
The judgment of the Court of Appeals is, therefore, reversed, and the judgment of the Probate Court is affirmed in every respect except that it is modified by striking therefrom that portion which provides that "failing payment, such claim be set off against her distributive share as a beneficiary of said estate."
Judgment of the Court of Appeals reversed and judgment of the Probate Court affirmed as modified.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH, HERBERT and GIBSON, JJ., concur.