This case is in this court on appeal from a judgment upon a directed verdict against the will of Fannie Polk, deceased. Two of the beneficiaries under the will of decedent feeling aggrieved at the outcome of the trial filed their notices of appeal and assigned the following errors:
"I. The court erred in removing the consideration of this case from the jury to effect the inequitable agreement between the contestants and the principal beneficiaries, which agreement and action of the court is contrary to public policy.
"II. As a matter of law, the court has no authority to direct a verdict against the proponents of the will once *Page 254 the probate of the will has been admitted into evidence."
From the record, it appears that Lois M. Taylor, William A. Polk, Martha P. Wilhite, plaintiffs, and Helen Vara, defendant, were the only heirs at law of testatrix. They were not mentioned in the will and according to interrogatories and answers thereto had seen their aunt once in their lifetimes. Defendant Glenn Connell was named the executor of the will. The Probate Court of Highland County refused to appoint him executor. Defendant Wayne Connell is the minor son of Glenn Connell.
After a provision for the payment of debts, testatrix bequeathed the sum of $30,000 to the Highland County Child Welfare Department, the sum of $20,000 to the Highland District Hospital, the sum of $2,000 to the Careytown Auburn Methodist Church and the sum of $2,000 to Wayne Connell. All of the residue of the estate was left to Glenn Connell. The estate was a very large one.
After the case had proceeded for a day and a half, some of the attorneys approached the bench and one stated that they had reached an agreement and would like to dictate the agreement into the record in the absence of the jury.
The court must have been privy to what was transpiring as the record shows that it made the following statement:
"The Court: At this time, we're going to have a short recess, members of the jury, and you will understand more about what we're doing pretty soon, but for the present we're going to have another recess. You may sit still or you may move around if you want, please don't discuss the case with anyone."
The terms of the settlement were revealed to be as follows: The four heirs of the decedent were to receive $150,000, and Glenn Connell was to receive the remainder of the property.
The court then directed a verdict against the will. The court, in explaining the procedure just taken, stated to the jury:
"* * * and in fact an agreement was effected between *Page 255 the parties and so what we have just done is a procedural method of protecting that agreement * * *."
Some witnesses had been called for the contestants. A number of other witnesses had been subpoenaed, but had not testified and of course no witnesses for the proponents had been called to testify.
An opportunity was given the attorney for the three charities, the child welfare department, the hospital and the Methodist church and the attorney for Wayne Connell, who was the same as the one for Glenn Connell, to produce evidence in favor of the will. The attorney for the charities, in his brief, claims he was taken by surprise by the sudden turn of events. He further states that he knew a compromise agreement was in the offing and he expected that his clients would be included. He states that he was excluded from the court's chambers when the details were ironed out. As a result, the estate was divided between the four heirs at law and Glenn Connell.
We believe that the first assignment of error is well taken. There is a paucity of Ohio law on this point and there are also relatively few cases in the various jurisdictions of the United States dealing with this precise factual pattern.
We are of the opinion that trial courts have been given authority to direct verdicts against wills on the weight of the evidence, if the state of the record so warrants. We are also of the opinion that a trial court is not authorized to direct a verdict when it is principally motivated in doing so by a desire to carry out a compromise agreement between the heirs at law of a testatrix on the one hand and the principal beneficiary under the will on the other, when all of the parties in the case are not parties to the compromise agreement.
It is significant that no party to the suit made a motion that the court direct a verdict against the will.
The attorneys for the contestants and the attorney for the principal beneficiary by agreement made a new will for the testatrix. This new will was approved by the trial court. The three charities and a minor beneficiary were *Page 256 excluded from the negotiations and were eliminated as beneficiaries under the probated will.
We are of the view that the Supreme Court in Madden v.Shallenberger, 121 Ohio St. 401, expressed the philosophy which decides this case. In that case, the parties were attempting to accelerate the time of their enjoyment of the income from their several trust estates. The court, at pages 408-9, said:
"The grandchildren have no interest in the estate of the testatrix except such as has been conferred upon them by the will, and are therefore powerless to add to the aggregates of their estates anything which the testatrix has not conferred upon them; and the heirs at law are powerless to confer any additional title upon them without first securing such additional title in themselves. When, therefore, these heirs at law and beneficiaries under the will sat in conference, and, by the process of trading their several interests in the estate among themselves, emerged from such conference with a greater estate in the aggregate than was bestowed upon all of them by the will, they, metaphorically speaking, lifted themselves by their own boot straps. They gave to themselves that which the testatrix specifically withheld from them, and which by reason of the will had not been cast upon any of them by the law of descent. They were not content with releasing to each other a part of that which was theirs, but they gave to each other that which was no part of any of their portions."
The charities and Wayne Connell, having a less interest under the will than Glenn Connell, might well have depended upon him to present and support the will and, if that support were secretly withdrawn and the will thereby defeated, the result would be loss and injustice to them.
The law in this respect seems to be well settled.
Though in some jurisdictions an agreement to dispense with the probate of a will has been declared to be against public policy and void, in a majority of the decisions on the point, it has been held that all the persons interested in a decedent's estate may by agreement divide *Page 257 the estate among themselves, without probating such decedent's will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely conceded.
The propriety of the rule that contracts to suppress valid wills are themselves valid is, at best, very doubtful. A devisee has power to renounce a devise, or to dispose of property which has been given to him by will. If two legatees agree upon any division of their legacies between themselves, another legatee can not be heard to object. At the same time, a competent testator has power to dispose of his property by will. The objection to these contracts is that they do not purport to be contracts by a devisee renouncing or transferring all or part of his devise under a valid will, but they provide for a collusive decree which declares that the will is invalid.
Where the agreement to suppress a will is by less than all of the persons interested, the courts seem to be practically unanimous in holding the agreement void, against public policy as tending to thwart justice, and as a fraud upon the beneficiaries excluded from the agreement. Cochran v. Zachery, 137 Iowa 585,115 N.W. 486, 16 L.R.A. (N.S.) 235, 126 Am. St. Rep. 307, 15 Ann. Cas. 297; Gugolz v. Gehrkens, 164 Cal. 596, 130 P. 8,43 L.R.A. (N.S.) 575; Mercier v. Mercier, 50 Ga. 546, 15 Am. Rep. 694; Ridenbaugh v. Young, 145 Mo. 274, 46 S.W. 959; In re Will of Rice, 150 Wis. 401, 136 N.W. 956, 137 N.W. 778.
We think no case can be found in which such a contract has been held to be valid. It has been expressly held that an agreement to resist the probate of a will, and procure it to be set aside so as to cut off the interest of one who is not a party to the agreement is against public policy and tends to thwart justice. See Gray v. McReynolds, 65 Iowa 461,21 N.W. 777, 54 Am. Rep. 16. *Page 258
For the reasons above stated, we are of the opinion that prejudicial error occurred in the trial of this cause in the manner set forth above and, hence, this cause is hereby remanded to the trial court for further proceedings according to law.
Judgment reversed.
ABELE, P. J., concurs.