147 N.E.2d 609

ABBOTT, APPELLANT v. DAWSON, EXR., ET AL., APPELLEES.

No. 35173Supreme Court of Ohio.
Decided January 29, 1958.

Contest of will — Executor or administrator made party — Named only as such in caption and body of petition — Not named as such in precipe — Summons served with caption of petition thereon — Party summoned in fiduciary capacity.

In a will contest, where the executor or administrator is made a party, is named in the caption of the petition as executor or administrator and in no other capacity, is described in the body of the petition as executor or administrator and in no other capacity, and in fact has no relation to such case in any other capacity, and where, attached to the petition, there is a precipe for the issuance of summons, naming such executor or administrator but not with his title attached, and where service of summons is made upon such executor or administrator, with the caption of the petition upon the summons, in which caption the party is named as executor or administrator and in no other capacity, such executor or administrator is summoned as a party to the will contest in his fiduciary capacity. (Mangan v. Hopkins, 166 Ohio St. 41, distinguished.)

APPEAL from the Court of Appeals for Clermont County.

On October 15, 1955, Fannie Abbott, hereinafter designated plaintiff, an heir at law of Ocie R. Elstun, deceased, instituted an action in the Common Pleas Court of Clermont County to contest the will of Ocie R. Elstun, which will was admitted to probate in the Probate Court of Clermont County on August 30, 1955. All the remaining heirs at law, as well as the devisees and legatees named in such will, and the executor, Lucian H. Dawson, are named as defendants in such action, and in the caption of the petition Dawson is named as executor and in no other capacity. In the body of the petition Dawson is described only as being the executor.

Attached to the petition is a precipe addressed to the clerk of the court for the issuance of summons upon the defendants, Lucian H. Dawson being named in such precipe but not being designated therein as executor. As a result, summons was served upon Lucian H. Dawson, and on the summons was the caption of the case, in which Dawson was again designated as executor and in no other way.

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After six months from the probate of the will, a motion to dismiss the petition was filed by some of the defendants because of the failure to serve the executor with summons within the six-month period.

Under the provisions of Section 2309.58, Revised Code, plaintiff made a motion to amend the precipe, summons and return by adding after the name of Lucian H. Dawson the term, “executor.”

The motion to dismiss was sustained, and the motion to amend was overruled.

On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.

The cause is before this court upon the allowance of a motion to certify the record.

Mr. Sterling L. Brown, Messrs. Harmon, Colston, Goldsmith Hoadly, Mr. Henry B. Street and Mr. Douglas G. Cole, for appellant.

Messrs. Nichols, Speidel Nichols, for appellees.

STEWART, J.

In the present case no question is made that all the proper parties, except the executor, were either served with or waived the issuance of summons, within six months from the probate of the Elstun will, and the only question presented to us is whether Dawson was served as executor within the six-month period.

Under Section 2741.09, Revised Code, an action to contest a will must be brought within six months after it has been admitted to probate, and under Section 2741.02, Revised Code, all the devisees, legatees, and heirs of the testator, as well as other interested persons, including the executor or administrator, must be made parties to such action.

This court has decided three cases which are claimed to bear upon the question before us.

In Peters v. Moore, 154 Ohio St. 177, 93 N.E.2d 683, this court unanimously held that it is mandatory and jurisdictional that the executor be made a party to a will contest, and that the court is without jurisdiction unless the executor is made a party, and a summons, duly followed by service, is issued

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within six months after the will has been admitted to probate.

In the Peters case, the executrix of the will was likewise a devisee and legatee. She was not named as executrix in the caption of the petition but was named only in her individual capacity, and she was served individually. Since she occupied a dual capacity, this court decided that the requirement that an executor must be made a party was not complied with, where, occupying the capacities of heir, legatee and executrix, she was made a party in her individual capacity as heir and legatee but not in her distinctive capacity as executrix.

In Bynner v. Jones, 154 Ohio St. 184, 93 N.E.2d 687, a similar question was presented.

The executor in the Bynner case was named and served as a defendant in his individual capacity as devisee and legatee alone, no one was made a party in the capacity of executor, and no precipe was filed or summons served within the statutory period on anyone in that capacity.

This court unanimously arrived at the same decision in th Bynner case as it did in the Peters case.

In Mangan v. Hopkins, 166 Ohio St. 41, 138 N.E.2d 872, a different question arose.

Hopkins was the administrator with the will annexed and had no other relationship to the estate. However, he was named individually in the caption of the petition, without any indication that he was a party in a representative capacity. That fact is noted in the statement of facts in the Mangan case. A precipe was issued and summons served upon Hopkins in his individual capacity, but no summons was issued upon him as administrator with the will annexed.

After the expiration of the six-month period, a motion to dismiss the petition was filed because of the failure to serve the administrator within such period, which motion was sustained.

The judgment of the trial court was affirmed by the Court of Appeals, and this court affirmed the judgment of the Court of Appeals, with three judges dissenting.

It was upon the authority of the Mangan case that the Court of Appeals in the present case affirmed the judgment of the trial court. However, the facts in the present case are markedly different from those in the Mangan case.

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In the Mangan case the majority opinion states, in part, as follows:

“In an action to contest a will, the fact that the executor or administrator is named as a party and was so served must clearly appear from the record of the case, and the fact that the person serving as executor or administrator may or may not be a party in another capacity does not eliminate the requirement that he be served in his fiduciary capacity.”

In the present case, differing from the Mangan case, a majority of the court is of the opinion that the record does clearly show that Dawson, as executor, is named as a party and was so served.

In the first place, in the caption of the petition Dawson is named as executor and in no other capacity. In the second place, in the body of the petition he is described as executor and in no other capacity. In the third place he has in fact no other relation to this case except as executor of the will.

The precipe for service of summons upon him is attached to the petition, and, when the service was made, the caption of the petition, naming Dawson as executor and in no other capacity, was on the summons with which he was served.

These distinguishing facts in the present case, which differentiate it so materially from the Mangan case, seem to indicate clearly that Dawson as executor was named as a party and was so served, and we so hold.

From what we have said, it is unnecessary for us to discuss the overruling of the motion to amend the precipe, summons and return.

The judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

ZIMMERMAN, TAFT, BELL and HERBERT, JJ., concur.

MATTHIAS, J., dissents.

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