Opinion
No. 26108
Decided December 23, 1936.
Wills — Contest — Beneficiaries under prior unprobated purported will not necessary parties.
APPEAL from the Court of Appeals of Cuyahoga county.
An action to contest the last will and testament of Joseph Hanze, deceased, theretofore duly admitted to probate, was brought by Hattie Machovina and Margaret Cordy, plaintiffs-appellees, in the Court of Common Pleas of Cuyahoga county, Ohio. Bennie Machovina, decedent's nephew, and Olive Machovina, his wife, and The Cleveland Trust Company, as executor of the last will and testament, were named as defendants They are appellants in this court.
An issue was made up as to whether the paper writing involved was the last will and testament of the deceased, and the cause came on for trial before a jury in the Court of Common Pleas of Cuyahoga county, Ohio.
The will which was contested is dated September 7, 1932, and the testator died September 29, 1934.
Bennie Machovina and his wife Olive were named as sole beneficiaries. The testator was never married and he left surviving him, his sisters, the plaintiffs-appellees.
Upon trial, plaintiffs-appellees offered in evidence another writing purporting to be the last will and testament of the deceased which named Sam Banachowicz and his wife, Anna Banachowicz, as beneficiaries of a testamentary trust, and which had been executed about nine months before the contested writing. The signature of the testator on the prior writing was conceded by the defendants to be genuine and the writing was admitted in evidence. Neither Sam Banachowicz nor his wife Anna was made a party to the will contest.
No evidence was offered that the earlier writing was executed according to law but it appears to have been signed by two witnesses and executed otherwise according to the statute.
Sam Banachowicz was called as a witness and testified that he was interested in the outcome of the contest for the reason that if the contestants prevailed he intended to assert his rights and those of his wife under the unprobated will to which reference has been made. Evidence was offered tending to show that the testator had at an earlier period executed two other purported wills.
At the conclusion of plaintiff's evidence a motion to dismiss the action "for want of necessary parties" was made and the cause dismissed, to which action of the court plaintiffs excepted. Thereupon judgment was rendered for defendants.
An appeal was taken to the Court of Appeals on questions of law, and that court reversed the judgment and remanded the cause for the reason that the beneficiaries under a prior purported will are not necessary parties to an action to contest the validity of the will.
This Court allowed a motion to certify the record.
Mr. Omer E. Malisky, Mr. Jos. S. Kay and Messrs. Deibel, Price, Elbrecht Roberts, for appellees.
Mr. Howard D. Burnett and Messrs. Hyre Myron, for appellants.
Is the beneficiary under an unprobated will a necessary party to an action to contest a later will which has been duly admitted to probate?
In Kennedy, Exr., v. Walcutt, 118 Ohio St. 442, 161 N.E. 336, it was held that a beneficiary under a prior unprobated will could maintain an action to contest a later probated will. It was, however, pointed out in the opinion that the contestant could maintain the action only by making out a prima facie case as to the validity of the will under which he claims and that the validity of such will could not be a question for the jury, but a mixed question of law and fact for the court. It does not follow because such beneficiary could maintain an action as contestant that all beneficiaries under prior wills are necessary parties defendant in will contest cases.
Section 12080, General Code, provides as follows: "All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action." It has been held that this section is mandatory and that the parties indicated therein are necessary and indispensable and must be joined as defendants. Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638; Sears v. Stinehelfer, 89 Ohio St. 163, 105 N.E. 1047.
There is a distinction between Sections 12079 and 12080, General Code. Under the former a "person interested in a will" which has been admitted to probate may contest its validity. This court is content with the interpretation of that section made in Kennedy, Exr., v. Walcutt, supra, but is unwilling to so interpret the words "other interested persons" in Section 12080, General Code, as to require beneficiaries under prior wills to be brought in as indispensable parties defendant. By requiring that prior unprobated wills must be searched out and beneficiaries named therein made parties defendant, almost insurmountable difficulties would be presented in will contests. Frequently such wills are not discovered until long after the death of the testator and as they are not of record contestants would have no means of ascertaining their existence in many instances.
This court holds that Sam and Anna Banachowicz were proper but not necessary parties defendant to the action in the trial court.
Judgment of the Court of Appeals will therefore be affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.