Opinion
No. 22438
Decided June 10, 1931.
Wills — Fabricated and forged will probated by perjured testimony — Action lies against wrongdoers by devisees under valid destroyed and suppressed will.
ERROR to the Court of Appeals of Cuyahoga county.
This is a very unusual case in its alleged facts. The facts are clearly and concisely stated in the petition. Omitting the formal parts, the petition reads as follows:
"On the 4th day of June, 1905, one, Milton Morton, a widower, died, a resident of this County of Cuyahoga, State of Ohio, leaving the defendants, William C. Morton, Kathleen Morton and Maud Morton, as his children and as his only heirs at law.
"This plaintiff, Morton Petitt, was a grandnephew of said Milton Morton.
"One year before his death, said Milton Morton, of sound mind and memory and not under restraint, duly executed a Last Will and Testament wherein he named this plaintiff as sole devisee in fee simple of the certain premises located in Cleveland, Ohio, then known as the Garlock Hotel, but now known as the Savoy Hotel; said premises are also known as No. 1600 Euclid Avenue, said city, and are more particularly described as follows:
" 'Situated in the City of Cleveland, County of Cuyahoga and State of Ohio, and known as sub-lot No. 16 in Seymour Baldwin's subdivision, as shown in Deed Book Vol. V-19, page 616 of Cuyahoga County Records of Deeds; said parcel has a frontage of sixty-six (66) feet on the Southerly side of Euclid Avenue and runs back between parallel lines 189.4 feet to Brownell Court, be the same more or less, but subject to all legal highways.'
"At the time said Last Will was executed and at the time of his death said Milton Morton was seized of said premises in fee simple; and he left said Last Will physically intact, and unrevoked, fully intending that it should be admitted to probate and record, and effectuated according to law.
"At the time of Milton Morton's death, the reasonable market value of said premises was One Hundred Fifty Thousand Dollars ($150,000.00). The residue of Milton Morton's estate, with the exception of several minor legacies, was by said Last Will bequeathed to these defendants, and the reasonable market value of such residue then was approximately Six Hundred Fifty Thousand Dollars ($650,000.00).
"At all times, the defendant, William C. Morton, has fully known of the existence of his father's said Last Will; but at his father's death the defendant, William C. Morton, fraudulently concealed and suppressed said Last Will, and at all times since he has concealed and suppressed the same or caused the same to be concealed and suppressed.
"And on the day of Milton Morton's death, namely, on said June 4, 1905, the defendant, William C. Morton, having written another paper in his own hand-writing purporting to be the Last Will of said Milton Morton, unlawfully and feloniously lifted his father's hand after he was unconscious or dead and caused said spurious writing to be signed with a mark; thereupon the defendants, Kathleen Morton and Maud Morton, signed said spurious paper as witnesses although they well knew or ought to have known that such spurious paper was not the Last Will of their said father.
"Thereafter, on the 16th day of August, 1905, the defendant, William C. Morton, well knowing that said fraudulent, spurious and forged writing was not the Last Will of his father, filed same in the Probate Court of said Cuyahoga County, Ohio, together with a sworn application falsely alleging that said writing was 'The Last Will and Testament of Milton Morton,' and praying for the probate thereof as the Last Will of his father, Milton Morton.
"Thereafter, on the 18th day of August, 1905, the defendants, Kathleen Morton and Maud Morton, testified under oath in said Probate Court that said writing of date June 4, 1905, was the Last Will of their father, Milton Morton, although they knew or ought to have known that it was spurious and that it was not in fact and in law the Last Will of their father.
"Solely by reason of defendants' said unlawful acts, said Probate Court, on the same day, that is, on the 18th day of August, 1905, admitted to Probate and Record said spurious writing as the Last Will of said Milton Morton, as is shown in Vol. 61, Page 425 of the Record of Wills of said Court.
"In said spurious writing, this plaintiff is not named at all, but the defendant, William C. Morton, is named as the sole and only devisee of said premises in fee simple.
"Except for said fraudulent and unlawful suppression of said genuine Last Will, and said fabrication and forgery of said spurious paper and the fraudulent probate thereof, said true Last Will would have been duly admitted to Probate, and said premises would have succeeded to the plaintiff; but by reason of said unlawful and fraudulent acts on the part of the defendants, plaintiff's title in and to said premises was fraudulently intercepted and he has at all times been deprived of the use and enjoyment of the same and of all of the same.
"But, at all times since the probate of said spurious writing, and by reason thereof, the defendant, William C. Morton, has been possessed of said premises and has had the sole use and enjoyment of the same.
"The present reasonable market value of said premises, solely due to unearned increment, is One Million Two Hundred and Fifty Thousand Dollars ($1,250,000.00).
"Plaintiff did not discover that said spurious writing, admitted to Probate and Record, as aforesaid, is a forgery, until May or June, 1925; nor did he discover that its admission to Probate was procured by fraud and perjury, until said time.
"And plaintiff did not discover that said Milton Morton left said true Last Will wherein he, the plaintiff, is named as the sole devisee of said premises, until after the discovery of said fraud in relation to the fabrication and forgery and fraudulent probate of said spurious writing.
"Plaintiff is informed and believes and therefore alleges that said true Last Will of Milton Morton was preserved until 1923, and that it was then destroyed; but, as aforesaid, plaintiff was wholly ignorant of such Will until May or June, 1925.
"Said true Last Will could now be admitted to Probate as a lost will, but for the fact that said spurious writing, later in date, admitted to Probate and Record, expressly revokes and annuls said true Last Will and Testament; plaintiff did not and could not contest said spurious writing after the probate thereof because he had no knowledge of said Last Will and Testament during the statutory period of one year from the Probate of said spurious paper; such fraudulent probate of said spurious writing therefore stands unimpeached on the record of said Probate Court and said true Last Will is revoked by said spurious writing so admitted to probate and record, and said true Last Will cannot be admitted to probate.
"By reason of the unlawful and fraudulent suppression of said true Last Will, and by reason of the felonious substitution therefor of said spurious writing, the plaintiff has been damaged in the sum of One Million Two Hundred and Fifty Thousand Dollars ($1,250,000.00); and he is entitled to punitive damages and to his attorneys' fees.
"Wherefore, plaintiff prays judgment against the defendants in the sum of One Million Two Hundred and Fifty Thousand ($1,250,000.00) Dollars; and for punitive damages and for reasonable attorneys' fees."
Messrs. Day Day, Mr. J.A. Curtis, Mr. Donald W. Kling and Mr. Edward J. Curtis, for plaintiffs in error.
Messrs. Squire, Sanders Dempsey and Mr. H.L. Deibel, for defendant in error.
The parties will be referred to as they stood in the trial court.
The defendants, William C. Morton and others, filed a demurrer to the petition, based on two grounds: First, that the petition did not state a cause of action; and second, that the cause of action therein attempted to be stated was barred by the statute of limitations. The trial court sustained the demurrer on the first ground. The second ground was not urged, and is not now relied upon here. Plaintiff, Morton Petitt, not desiring to plead further, judgment was entered against him in the trial court. Error was prosecuted by plaintiff to the Court of Appeals ( 38 Ohio App. 348, 176 N.E. 497) which court reversed the judgment of the trial court and remanded the cause for trial. The defendants prosecute error to this court.
There has as yet been no trial of the case on its merits on evidence. What the actual facts are cannot be foretold in advance of such trial. The demurrer admits the truth of all the facts well pleaded as they are set forth in the petition. This presents for consideration the sole legal question whether these facts constitute a cause of action against the defendants.
The testator did everything he could possibly do to insure the transfer of about one-third of his estate to his grandnephew upon the death of the testator. If the facts stated in the petition are true, then the testator died leaving that, his last will and testament, in full force and effect; that will was wrongfully and deliberately destroyed and suppressed, and another will was fabricated and forged to take its place, and was probated by the aid of perjured testimony. How could anything possibly present less of right and more of wrong than this? The malicious destruction and suppression of the valid will was a crime under the statute, as was also the forging and probating of the spurious will.
To claim that any rights can arise out of such combined wrongs, in favor of the wrongdoers, is the equivalent of saying that a good title to property can be secured by larceny, robbery, fraud, or by any form of duress. In short, it is to state an absurdity that has no legal abiding place known to the law.
The following authorities sustain this position: Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193, 52 A. L. R., 761; Dulin v. Bailey, 172 N.C. 608, 90 S.E. 689, L.R.A., 1917B, 556; Lewis v. Corbin, 195 Mass. 520, 81 N.E. 248, 122 Am. St. Rep., 261; Murphy v. Mitchell, (D.C.), 245 F., 219.
However, no citation of authorities is necessary to sustain an entirely self-evident right, or to truly characterize an entirely self-evident wrong. Forgery and perjury are not terms of uncertain meaning. They describe the very essence of wrong; conduct that has always been and always will be wrong, according to the common judgment of mankind; conduct that cannot be dressed up or manipulated or associated so as to invest it with any element of right.
We are by no manner of means attempting to say what the actual facts are. The plaintiff may fail utterly in his attempt to prove the facts he alleges in his petition to be true. We are only saying that he has the right to submit his evidence to a jury in his effort to establish the truth of those alleged facts.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MARSHALL, C.J., ALLEN and ROBINSON, JJ., concur.