Summary
In Jacobsen, the administration had been completed, the estate closed and the period in which a will contest could be brought had elapsed.
Summary of this case from Wolfrum v. WolfrumOpinion
No. 34397
Decided January 11, 1956.
Jurisdiction — Probate Court jurisdiction exclusive, when — Section 10501-53, General Code — Concurrent with that of Common Pleas Court, when — Relief afforded person damaged by fraudulent or forged will — Claim forged instrument probated by perjured testimony — Suit to declare so-called executor trustee ex maleficio — Jurisdiction of Common Pleas Court.
1. By reason of the provisions of Section 10501-53, General Code (Section 2101.24, Revised Code), the Probate Court has exclusive jurisdiction, unless otherwise provided by law, as to all matters specifically set forth therein and as to all matters pertaining directly to the administration and settlement of estates.
2. Whether the Probate Court has jurisdiction or not, the Common Pleas Court may afford relief to parties damaged by a fraudulently procured or forged will.
3. Where it is claimed that a purported beneficiary, under an instrument in the form of a will, secured its execution by forgery, fraudulently procured waivers of next of kin of the purported testator for the purpose of probating such will, procured the probate of the same by false testimony of the witnesses thereto, and had himself appointed executor thereof, such next of kin may maintain a suit in the Common Pleas Court to have the purported beneficiary and executor held to be a trustee ex maleficio for the benefit of such next of kin who would have been entitled to the estate in the event of intestacy.
APPEAL from the Court of Appeals for Ottawa County.
This is an appeal from a judgment of the Court of Appeals for Ottawa County reversing a judgment of the Common Pleas Court of that county dismissing the petition in this action after sustaining a demurrer thereto. The petition was filed in the Common Pleas Court by Louis Jacobsen and five of his brothers, all sons of Christine Jacobsen, deceased, ultimately against the defendants, William Jacobsen and Marie Kruse personally, son and daughter, respectively, of Christine Jacobsen.
The petition alleges that the defendant William Jacobsen fraudulently secured the execution of a will by his mother, Christine C. Jacobsen, when she was infirm and totally blind, naming him, his sister, Marie Kruse, and another sister who predeceased her mother, without issue, sole devisees and legatees; that he fraudulently procured waivers from the plaintiffs for the purpose of probating such will; that he fraudulently procured the probate of the same by false testimony of the witnesses thereto; and that he, as executor of the will, filed an inventory representing that his mother died possessed of only $700 and at the same time failed to account for a large amount of money belonging to his mother's estate, which he had converted to his own use. A second cause of action is set out in the petition against the defendant Marie Kruse in which it is alleged that she received bequests under the will of her mother through the alleged fraudulent acts of William Jacobsen as set out in the statement of the first cause of action.
The prayer of the petition is that the defendants, William Jacobsen and Marie Kruse, be declared constructive trustees of the property and assets of the estate of which they had become possessed.
The defendants demurred to the petition on the ground that it appears on its face that the Common Pleas Court had no jurisdiction of the subject of the action, and that the facts stated therein do not constitute a cause of action. The demurrer was sustained and judgment was entered for the defendants.
On appeal to the Court of Appeals, that court reversed the judgment of the Common Pleas Court, and the cause is now in this court on appeal, a motion to certify the record having been allowed.
Mr. James E. Thierry, Mr. John B. Morton, Mr. John S. Saalfield and Messrs. Taylor, Cruey Kelb, for appellees.
Messrs. Marshall, Melhorn, Bloch Belt, Mr. John B. Spitzer and Mr. A.C. Wilber, for appellants.
The sole question presented is whether the Court of Common Pleas has concurrent jurisdiction with the Probate Court with respect to a claim that one appointed by the Probate Court as executor of a will fraudulently procured the execution and probate of such will, and with respect to a claim that such executor failed to account for assets of the estate.
It is conceded by the defendants that an executor can be held responsible for submitting a fraudulently executed will for probate and for the concealment of assets of the estate which he represents. The defendants concede also that the petition in this case follows closely a form of the petition in the case of Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193, 52 A.L.R., 761, wherein this court held that the Court of Common Pleas had jurisdiction to enforce a constructive trust against a person who fraudulently procured the execution and probate of a will and possession of assets of an estate supposedly distributed by the will.
However, the defendants in the instant case maintain that the Seeds case was decided prior to the revision of the Probate Code in 1932, and that, in view of the changes effected in that revision, the doctrine of the Seeds case is no longer applicable.
Prior to 1932, Section 10531, General Code, provided that, after one year after the probate of a will, no person, except infants, persons of unsound mind or persons in captivity, could contest the validity of a will and were forever barred from contesting the probate of such will. Prior cases had held that the Probate Court had no power to alter or set aside a judgment probating a will after the expiration of the period for contest. See McVeigh v. Fetterman, 95 Ohio St. 292, 116 N.E. 518; Mosier v. Harmon, 29 Ohio St. 220; Bailey v. Bailey, 8 Ohio, 239.
The appellants maintain that the controlling principle in the Seeds case was that persons defrauded through the execution and probate of a will should have a remedy, and that, since there was no provision therefor in the Probate Code, the Common Pleas Court, as a court of general jurisdiction, has jurisdiction in such cases. The appellants maintain further that in 1932 the Probate Code was amended so as to shorten the period within which suit might be filed to six months but accorded the Probate Court power to set aside its own judgments, and that such court has been given, by inference at least, exclusive jurisdiction in such matters, as a result of all of which the instant action may not be maintained in the Common Pleas Court.
This extension of power is made by Section 10501-17, General Code (Section 2101.33, Revised Code), which reads as follows:
"The Probate Court shall have the same power as the Common Pleas Court to vacate or modify its orders or judgments."
Section 10501-53, General Code, as amended in 1932 (Section 2101.24, Revised Code), described and defined the jurisdiction of the Probate Court, in part, as follows:
"Except as hereinafter provided, the Probate Court shall have jurisdiction:
"* * *
"3. To direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates;
"4. To appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts;
"* * *
"11. To construe wills;
"12. To render declaratory judgments;
"13. To direct and control the conduct of fiduciaries and settle their accounts.
"Such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law.
"The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute."
Section 10501-55, General Code (Section 2101.24, Revised Code), provides:
"The jurisdiction acquired by a Probate Court over a matter or proceeding is exclusive of that of any other Probate Court, except when otherwise provided by law."
It will be noted that Section 10501-53, in 13 numbered paragraphs, including 3, 4, 11, 12 and 13, above quoted, specifically defines the jurisdiction of the Probate Court, and the next following paragraph above quoted provides that "such jurisdiction [that is, the jurisdiction provided in the preceding 13 paragraphs] shall be exclusive in the Probate Court unless otherwise provided by law." The statute does give the Probate Court "exclusive jurisdiction" as to the matters set out in the paragraphs above quoted. By statute the Probate Court is given concurrent jurisdiction with the Common Pleas Court to construe wills and to render declaratory judgments. See Sections 12102-1 and 12102-2, General Code (Sections 2721.02 and 2721.03, Revised Code).
From this analysis of the statute, even in its amended form, it is apparent that the Probate Court is given exclusive jurisdiction in the administration of estates, but this does not mean that the Probate Court has exclusive jurisdiction over a cause of action growing out of fraudulent acts committed against a testator, even though such person may thereafter become the executor of the estate.
Judge Fess, in his opinion in the instant case, aptly said:
"It should be repeated that this action is not against the executor or administrator of an estate in process of administration by the Probate Court. It is against an individual alleged to have committed fraud in obtaining the execution of an invalid will, its probate and the fraudulent acquisition of property rightfully belonging to the plaintiffs."
In the Seeds case, this court held that where an instrument in the form of a will is procured by forgery and the same is probated by perjured testimony, and the sole beneficiary named in the will later by legal proceedings procures a transfer of the legal title to property devised by the will to his own name, the defrauded party may maintain an independent suit in the Common Pleas Court to obtain relief from the fraud.
In the course of the opinion in that case it is said:
"All these cases very clearly and conclusively establish the power of a court of equity in an independent action, to impeach the solemn judgment of a court of law, where the judgment has been obtained by fraud and circumvention."
The case of Burlovic v. Farmer, Admr., 162 Ohio St. 46, 120 N.E.2d 705, decided after the amendment of Section 10501-53, General Code, in 1932, the action originating in the Common Pleas Court, was one seeking a declaratory judgment as to the validity of a separation agreement and seeking an injunction restraining an administrator from paying any money to the defendant or surviving spouse. Although the appeal was on questions of law, the Court of Appeals issued a restraining order enjoining the administrator from distributing to the defendant any of the assets of the estate. It was contended by the defendant that the Common Pleas Court had no jurisdiction of the subject matter because the Probate Court had obtained jurisdiction prior to the filing of plaintiff's petition. On appeal, this court held that in the maintenance of the action there was no interference with the jurisdiction of the Probate Court, citing Heck v. Heck, 6 Dec. Rep., 604, affirmed, 34 Ohio St. 369; Kane v. Kane, 146 Ohio St. 686, 691, 67 N.E.2d 783; and Radaszewski v. Keating, Exrx., 141 Ohio St. 489, 49 N.E.2d 167.
As a general rule courts of general jurisdiction, having inherent equity powers, will take jurisdiction of matters, which were expressly within the jurisdiction of courts of limited jurisdiction, to set aside judgments of such latter courts, where it becomes necessary to prevent fraud and illegality from prevailing therein. See State, ex rel. Black et al., Exrs., v. White, Judge, 132 Ohio St. 58, 5 N.E.2d 163; Griffith v. Bank of New York, 147 F.2d 899, certiorari denied, 325 U.S. 874, 89 L. Ed., 1992, 65 S. Ct., 1414; Smith v. Smith, 224 F., 1; O'Brien v. Markham, 17 F. Supp., 633; Caldwell v, Taylor, 218 Cal. 471, 23 P.2d 758, 88 A.L.R., 1194; Griffith v. Godey, 113 U.S. 89, 28 L. Ed., 934, 5 S. Ct., 383; Simonton v. Los Angeles Trust Savings Bank, 192 Cal. 651, 221 P. 368.
The judgment of the Court of Appeals is affirmed, and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment affirmed and cause remanded.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.