Kelley v. Hazzard

Citations

• 96 Ohio St. (N.S.) 19

Syllabus

<p>Making, probating and contest of wills — Statutory control — Right of contest not forfeited by previous acceptance, when — Misrepresentation by executor—Tender back of legacy before trial — Sufficiency of estoppel against will contest.</p> <p>1. In Ohio the making, probating and contesting of wills is controlled by the statutes.</p> <p>2. Where an action to contest a will is begun within the statutory period, the right to maintain such action is not forfeited by the fact that the party plaintiff consented in writing to the probating of the will and accepted a legacy thereunder, where such consent and acceptance were induced by false and fraudulent representations as to the amount of the estate and the testamentary capacity of the testator, made by the executor under the will with the intent of inducing the legatee to abide by the will.</p> <p>3. Tender back of such legacy is not a condition precedent to bringing an action to contest a will. Tender back at any time before trial is sufficient.</p> <p>4. A plea of estoppel against such will contest, setting forth the consent to the probate of the will, the payment of the legacy and retention of the same, is not sufficient in law as a defense. In order to constitute an estoppel it is necessary that the representations made by conversation or conduct were relied upon resulting in a course of action which should not now in good conscience be disturbed.</p>