Pettit v. Morton

SULLIVAN, PJ'. The vital question is whether a court of equity,, under the unprobated will, can declare a trust on the ground of fraud, and in that manner ultimately have declared invalid the will in favor of the heirs at law, duly probated under the statute, and under which occupancy, possession and rents and profits ensue? In Seeds v. Seeds, 156 N.B. 193, the Supreme Court held that an heir at law might maintain an action in equity to have a devisee under a forged will, fraudulently admitted to probate, declared a trustee ex maleficio, even after the statutory time for contesting the will had.expired, but in that case the person seeking to have the trust declared was the heir at law of the testator and, therefore, was an interested person in the will itself and would be benefited upon the setting aside of the fraudulent will. That case cannot, in our judgment, be a basis for authority to declare a trust in the instant case, because, the plaintiff in error has no interest in the property now and could have no interest in the distribution of the property if the will assaulted were declared null and void, because he is not an heir at law, and the un-probated will which he claims under as a legal document with force and effect in law, is a piece of worthless paper in the face of the will duly probated by the Probate Court. The right to maintain the action in the instant case depends for its prerequisite upon some interest, either legal or equitable, in the property, before the capacity to sue exists. In the present case the legal title is in Morton, and there is no allegation in the amended petition that the plaintiff in error has any rights whatsoever in the property that may be considered substantive in law and eonstiluing such requisites as are necessary to pray for the declaration of a trust. Under Sec. 10541 GC., it says: “Unless it has been duly admitted to probate or record, as provided in this chapter, no will shall be effectual to pass real or personal estate.” Thus the unprobated will is no basis for property rights in the plaintiff in error and without them, especially inasmuch as he is not an heir at law, he cannot maintain the action for the declaration of a trust, because he is incapacitated in law to sue. [550] Thus it is our unanimous judgment that for the purpose of the declaration of a trust as prayed for in the amended petition, the un-probated will is absolutely inoperative, and when the party plaintiff leans upon it as a basis for his cause of action, it is as a broken reed, without any legal strength to furnish any support whatsoever, to litigation in Ohio courts. There has been, a considerable discussion by counsel as to the language of the court in Seeds v. Seeds, supra, and opposing counsel take opposite views, especially by reference to the case of Gaines v. Chew (1844) 43 U.S. (2 How.) 619, 11 L. Ed. 402, but we think the decision of the Supreme Court in Kieley v. McGlynn, known as the case of Broderick’s Will, 21 Wall. 503, 22 Law Ed. 599, settles the difference of opinion. There was no holding in Gaines v. Chew, that a devisee, under an unprobated will, could successfully maintain an action like the one at bar. Again, in Morningstar v. Selby, 15 Ohio, 345, we find the same authority stating that the language in Gaines v. Chew was obiter dicta, and is no legal authority for sustaining an action for a trust like the one at bar. The authorities are so numerous that a court of equity has no jurisdiction to admit a will to probate or to give validity to an unprobated will, that it is useless to refer to them, but the question is settled in Joseph Hunter’s Will, 6 Ohio 499 and in Lessee of Swazey’s Heirs v. Blackman et ux, 8 Ohio, page 5, and in Morningstar v. Selby, supra. Holding these views, the judgment of the lower court is hereby affirmed. (Vickery and Levine, JJ., concur.)