[Cite as Allen v. McBride, 105 Ohio St.3d 21, 2004-Ohio-7112.]




               ALLEN, APPELLEE, v. MCBRIDE ET AL., APPELLANTS.
         [Cite as Allen v. McBride, 105 Ohio St.3d 21, 2004-Ohio-7112.]
Will-contest actions — R.C. 2107.76 — Saving statute — R.C. 2305.19, the saving
        statute, applies to will-contest actions.
   (Nos. 2004-0242 and 2004-0407 — Submitted October 26, 2004 — Decided
                                  December 30, 2004.)
  APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, No.
                              03AP-432, 2003-Ohio-7158.
                                 __________________
                               SYLLABUS OF THE COURT
R.C. 2305.19, the saving statute, applies to will-contest actions.
                                 __________________
        ALICE ROBIE RESNICK, J.
        {¶ 1} This appeal requires us to consider a single narrow issue—whether
R.C. 2305.19, Ohio’s saving statute, applies to will-contest actions. For the
reasons that follow, we answer this question in the affirmative and affirm the
judgment of the court of appeals.
        {¶ 2} The relevant facts concerning the certified question before us are
undisputed. We focus only on the details necessary to place that issue in context.
        {¶ 3} On March 22, 2002, plaintiff-appellee, Patsy J. Allen, filed a will-
contest action in the Probate Division of the Franklin County Common Pleas
Court concerning the validity of a will executed by Lavenia M. Starr, who had
died on July 8, 2001. On February 24, 2003, Allen voluntarily dismissed her
complaint without prejudice under Civ.R. 41(A)(1)(a), noting that she intended to
refile the complaint under the saving statute, R.C. 2305.19. The next day, Allen
refiled the complaint.
                                SUPREME COURT OF OHIO




        {¶ 4} On March 12, 2003, defendants-appellants Mary Baker, Shirley
Lyttle, Shirley Stringfellow, and Dennis L. Lyttle answered and moved to
dismiss, asserting that R.C. 2305.19 is inapplicable to will-contest actions. The
trial court granted the motion to dismiss, specifically finding that the saving
statute does not apply to will-contest actions.
        {¶ 5} The Court of Appeals for Franklin County reversed the judgment
of the probate court, holding that R.C. 2305.19 applies. Finding its judgment in
conflict with the judgments of the Eleventh District Court of Appeals in Barnes v.
Anderson (1984), 17 Ohio App.3d 142, 17 OBR 242, 478 N.E.2d 248, and Peltz v.
Peltz (June 27, 1997), Geauga App. No. 96-G-2026, 1997 WL 402373, and the
judgment of the Fourth District in Cross v. Conley (July 12, 2000), Highland App.
No. 99CA5, 2000 WL 1010771, the court of appeals granted a motion to certify a
conflict. The cause is now before this court upon our determination that a conflict
exists in case No. 2004-0407 and upon the acceptance of a discretionary appeal in
case No. 2004-0242.
        {¶ 6} The issue certified for our review is straightforward: “whether
R.C. 2305.19 applies in will contest actions.” To resolve that question, we must
consider two statutes. Former R.C. 2305.19, as applicable to this case, provides:
“In an action commenced, or attempted to be commenced, * * * if the plaintiff
fails otherwise than upon the merits, and the time limited for the commencement
of such action at the date of * * * failure has expired, the plaintiff * * * may
commence a new action within one year after such date.”1
        {¶ 7} Former R.C. 2107.76, 145 Ohio Laws, Part III, 5092, 5095, as
applicable to plaintiff in this case, provides: “No person who has received * * *
the notice of the admission of a will to probate * * * may commence an action * *

1. R.C. 2305.19 has been amended, effective June 2, 2004, with the quoted language changed and
that portion of the statute now designated as R.C. 2305.19(A). See 2004 Am.Sub.H.B. No. 161.
The revisions are not substantive for purposes of the issue in this case, and our decision also
applies to the amended statute.




                                              2
                                    January Term, 2004




* to contest the validity of the will more than four months after the filing of the
certificate described in division (A)(3) of section 2107.19 of the Revised Code.”2
        {¶ 8} In finding that R.C. 2305.19 does not apply to will-contest actions,
the probate court followed the holdings of the three appellate cases certified by
the court of appeals as in conflict with its decision and also followed Alakiotis v.
Lancione (1966), 12 Ohio Misc. 257, 261, 41 O.O.2d 381, 232 N.E.2d 663, a
seminal common pleas court decision relied upon within those three appellate
decisions.
        {¶ 9} Alakiotis reasoned that because a will-contest action is a cause of
action created by statute and is unknown to the common law, and because there is
a specific statute of limitations applicable to will-contest actions, R.C. 2305.19
does not apply. Id., 12 Ohio Misc. at 261, 41 O.O.2d 381, 232 N.E.2d 663. See,
also, Barnes, 17 Ohio App.3d at 145, 17 OBR 242, 478 N.E.2d 248 (“Alakiotis *
* * forecloses the application of R.C. 2305.19 to a case of this kind”); Peltz,
Geauga App. No. 96-G-2026, 1997 WL 402373, * 3 (“the General Assembly
intended the specific, four-month time limit set forth in [former] R.C. 2107.76 to
take precedence over the general one-year limit in R.C. 2305.19”); Cross,
Highland App. No. 99CA5, 2000 WL 1010771, * 3 (remarking that the General
Assembly has chosen not to disturb the ruling in Alakiotis, even though it has had
ample opportunity, and stating, “[T]he purpose behind imposing the four-month
limitation period, contained in [former] R.C. 2107.76, is to promote the speedy
administration of estates”).
        {¶ 10} The appellate court below, on the other hand, found that even
though the rule of Alakiotis had governed this issue since that case was decided,
recent decisions of this court have undermined the validity of Alakiotis and the

2. R.C. 2107.76 was amended, effective October 31, 2001, to shorten the time to commence an
action to contest the validity of a will from four months to three months after the filing of the
certificate. See 2001 Sub.H.B. No. 85. Our holding in this case also applies to the amended
statute.




                                               3
                             SUPREME COURT OF OHIO




cited appellate cases based on it. The court of appeals recognized that three
decisions of this court involving R.C. 2305.19 call Alakiotis’s ruling into
question. Further, the court of appeals distinguished statutes that create rights
from those that create remedies.
        {¶ 11} In Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 6
OBR 221, 451 N.E.2d 1196, syllabus, this court held, “R.C. 2305.19 is applicable
to suits against the state in the Court of Claims” and observed, “The Court of
Claims Act, R.C. 2743.01 et seq., * * * does not create new rights or causes of
action but, rather, creates only a remedy.” Id. at 163, 6 OBR 221, 451 N.E.2d
1196.
        {¶ 12} In Lewis v. Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487
N.E.2d 285, syllabus, this court held that R.C. 2305.19 “is applicable to workers’
compensation complaints filed in the common pleas court.” Such complaints
were required by the relevant statute (at that time, R.C. 4123.519, now 4123.512)
to be filed within 60 days after receipt of the Industrial Commission’s decision.
Lewis, 21 Ohio St.3d at 2-3, 21 OBR 266, 487 N.E.2d 285.
        {¶ 13} Both the trial court and the court of appeals in Lewis had found
that the saving statute did not apply to such complaints, with the court of appeals
accepting the arguments that the statute at issue created a substantive right of
action unknown at common law, that the 60-day limitation period within the
statute was an inherent part of the statute that created the right, and that when the
statutory period expires, the right is extinguished. Id., 21 Ohio St.3d at 2, 21
OBR 266, 487 N.E.2d 285. The Lewis court rejected this reasoning.
        {¶ 14} Most recently, in Osborne v. AK Steel/Armco Steel Co., 96 Ohio
St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, syllabus, this court unanimously
held that R.C. 2305.19 applies to R.C. Chapter 4112 age-discrimination actions.
The Osborne court explained that in Lewis, “this court found that R.C. 2305.19
applied to save a claim even though the claim (workers’ compensation) is a




                                         4
                                January Term, 2004




creature of statute and the Workers’ Compensation Act contained its own
limitations period. The Lewis opinion turned on this court’s determination that
R.C. 4123.519, now 4123.512, was a remedial statute, not a right-creating
statute.” Osborne, 96 Ohio St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, ¶ 4,
citing Lewis, 21 Ohio St.3d at 3, 21 OBR 266, 487 N.E.2d 285.
       {¶ 15} This court in Osborne extended the holding in Lewis, remarking,
“Like the court in Lewis, ‘[w]e decline to hold that Osborne has entered the
“twilight zone” where dismissal of her complaint without prejudice after
expiration of the limitation period of [the relevant statute] has the same effect as a
dismissal on the merits, barring any further action with respect to the same claim.’
” Osborne, 96 Ohio St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483, ¶ 5, quoting
Lewis, 21 Ohio St.3d at 4, 21 OBR 266, 487 N.E.2d 285.
       {¶ 16} We fully agree with the court of appeals’ observation that
“Osborne eviscerated the rationale underpinning Alakiotis and the appellate
decisions relying on it. Although R.C. Chapter 4112 created a statutory cause of
action and contained its own statute of limitations, the Supreme Court determined
R.C. 2305.19 applied to actions brought under that chapter of the Revised Code.
See Ruble v. Ream, Washington App. No. 03CA14, 2003-Ohio-5969, [2003 WL
22532858], ¶ 29 (stating that ‘[t]he underlying rationale of Osborne is that when a
cause of action is a creature of statute and that statute contains a specific
limitations period, the savings statute nevertheless applies’).”       The court of
appeals accurately determined that since the rationale of Alakiotis is no longer
valid, the reasoning underlying Osborne is relevant to whether the saving statute
pertains to will-contest actions.
       {¶ 17} When this case is compared to Osborne, the similarities are
apparent. As the court of appeals stated:
       {¶ 18} “[T]he ability to bring a will contest action is no more or less a
right created by statute than the ability to bring an age discrimination action.




                                            5
                            SUPREME COURT OF OHIO




While the statutes governing will contests have been referred to as providing a
right that previously had not existed, so, too, have provisions of R.C. Chapter
4112 been deemed to create rights.
       {¶ 19} “* * * While the remedial aspects of a cause of action for age
discrimination are apparent, the remedial aspects of a will contest action are also
evident, for it provides the sole remedy for an injustice created when a decedent is
wrongly influenced to divert family treasures from their rightful beneficiary.”
       {¶ 20} Consequently, we fully accept the court of appeals’ conclusion that
this case at bottom is indistinguishable on its key points from this court’s holding
in Osborne. As the court of appeals declared, “In the end, the parallels between
this case and Osborne are compelling. Both the action in Osborne and the one
plaintiff brought here legitimately may be characterized as creatures of statutes
that create rights unknown in the common law. Both causes of action have been
characterized as remedies or remedial. While the statute of limitations in the will
contest is short, the statute of limitations in Lewis was even shorter, but that did
not dissuade the court from applying the savings statute.”
       {¶ 21} The court of appeals recognized that when a will contest is
dismissed, the administration of the will continues. This factor distinguishes a
will contest from an age-discrimination action, which is terminated if the
complaint is dismissed. However, this distinction is not significant enough to
remove this case from the ambit of Osborne’s analysis. As the court of appeals
determined, “The issue before us [reduces] to whether application of the savings
statute so adversely affects the administration of the estate that the legislature
could not have intended to apply the savings statute to will contest actions. In the
final analysis, the adverse effects are no greater than those inherent in the
administration of an estate in the absence of the savings statute, and thus we
conclude the savings statute applies to plaintiff’s dismissal of her will contest
action.”




                                         6
                                January Term, 2004




       {¶ 22} The court of appeals made several further observations to support
its conclusion that we find apposite:
       {¶ 23} “Without question, the statute of limitations for will contests[,]
changed from four months to three months, is short. In the case of an expedited
estate, however, the administration of the estate may be completed before the
statute of limitations for a will contest has expired. A successful will contest, in
such an instance, may require that, at least in part, the administration of the estate
be undone, much as might occur if a refiled will contest complaint proved to be
successful. Moreover, application of the savings statute to will contest actions
does not slow the administration of the estate significantly more than does the
right to appeal various rulings of the probate court during the administration of
the estate.     Indeed, because nothing requires that an estate be held open to
determine if a dismissed will contest eventually will be refiled, the failure to refile
before the administration of the estate is completed arguably may preclude further
action and instead become part of the risk a will contestant takes in dismissing a
will contest.
       {¶ 24} “* * *
       {¶ 25} “Because the effect of the savings statute on the estate is not
substantially greater than that posed by other applicable statutes and rules, the
reasoning of the Supreme Court is appropriate. In both Reese and Lewis, the court
noted that nothing in R.C. 2743.16 or 4123.519, respectively, prohibits refiling an
action that was originally timely commenced. Moreover, as with the statute at
issue in Lewis, the will contest statutes do not provide ‘any guidance for the
situation in which a timely filed complaint has been dismissed without prejudice
after the time for commencement set forth in that statute has expired. * * * R.C.
2305.19 “fills this void.” ’ Lewis, [21 Ohio St.3d] at 4 [21 OBR 266], 487 N.E.2d
285, quoting Reese, [6 Ohio St.3d] at 163 [6 OBR 221], 451 N.E.2d 1196.




                                          7
                             SUPREME COURT OF OHIO




       {¶ 26} “The savings statute ‘is neither a statute of limitations nor a tolling
statute extending the statute of limitations. Instead, it is clear that R.C. 2305.19
has no application unless an action is timely commenced and is then dismissed
without prejudice after the applicable statute of limitations has run.’ Lewis, [21
Ohio St.3d] at 4, [21 OBR 266], 487 N.E.2d 285. Because the facts before us fall
within those parameters, we diverge from the other appellate districts on this
issue, apply Osborne and, in the absence of any provision to the contrary in the
will contest statutes, conclude the savings statute applies to plaintiff’s will contest
action.”
       {¶ 27} We fully agree with the cogent analysis of the court of appeals that
led it to disagree with the other districts on this issue, and we further emphasize
several points. First, R.C. 2305.19 is a broad statute of general application and on
its face applies to save the claim in this case. There is nothing within that statute
that could even remotely be read to proscribe its application to will-contest
actions.
       {¶ 28} Second, there is no indication within R.C. 2107.76 that the saving
statute does not apply to will-contest actions. Once a will-contest claim is validly
filed within the applicable (now three-month) period, that statute has been
satisfied on its face, and later developments are beyond the statute’s scope. Given
the generality of R.C. 2305.19 and the inapplicability of R.C. 2107.76 once a will
contest is properly commenced, we determine that normal principles of statutory
construction require that R.C. 2305.19 should apply to will-contest actions. The
features of this case do not compel us to deviate from those principles.
       {¶ 29} Finally, adopting the approach advocated by defendants would
require that we overrule Osborne and would also require that we either overrule
or severely limit Reese and Lewis. Given all the reasons set forth above, we
decline to repudiate those cases and instead reaffirm them. Plaintiff Allen’s
voluntary dismissal without prejudice under Civ.R. 41(A)(1)(a) should not place




                                          8
                                January Term, 2004




her in the “twilight zone” that bars any recovery, and R.C. 2305.19 operates to
save her ability to pursue her claim. Osborne, 96 Ohio St.3d 368, 2002-Ohio-
4846, 775 N.E.2d 483, ¶ 5.
       {¶ 30} Based on all of the foregoing, we hold that R.C. 2305.19 applies to
will-contest actions. The judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., F.E. SWEENEY, PFEIFER and O’CONNOR, JJ., concur.
       LUNDBERG STRATTON and O’DONNELL, JJ., dissent.
                               __________________
       O’DONNELL, J., dissenting.
       {¶ 31} The majority’s narrow focus on the application of the saving
statute to a will-contest action misses the broad impact that today’s decision has
on the administration of estates in Ohio.
       {¶ 32} Without question, well-settled Ohio law is upended, and questions
regarding application, retroactivity, and the effect of this decision on pending
estates and current litigation are created with this opinion. Moreover, today’s
decision disturbs the doctrine of stare decisis et no quieta movere, i.e., to stand by
things decided and not disturb settled points of law. Further, we recently adopted
a test in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797
N.E.2d 1256, paragraph one of the syllabus, regarding when established legal
precedent or settled application of law should be disturbed — of course, referring
to our own precedent:
       {¶ 33} “A prior decision of the Supreme Court may be overruled where
(1) the decision was wrongly decided at that time, or changes in circumstances no
longer justify continued adherence to the decision, (2) the decision defies practical
workability, and (3) abandoning the precedent would not create an undue hardship
for those who have relied upon it.”




                                            9
                               SUPREME COURT OF OHIO




        {¶ 34} Although this standard generally applies to the situation where this
court decides to overrule its own precedent, the legal principles embodied therein
apply equally to the situation confronted by today’s decision. By changing the
well-settled law in Ohio today, the majority violates every part of this test.
Patently, none of the parts of the Galatis test are drawn into question as a basis for
the court to rule in the fashion the majority sees fit to embrace today. Rather, by
announcing its decision, the majority will vault Ohio probate into a frenzy where
the potential for delayed estate administration will flourish.
        {¶ 35} At the time of the events in this case, R.C. 2305.19 provided:
        {¶ 36} “In an action commenced, * * * if the plaintiff fails otherwise than
upon the merits, and the time limited for the commencement of such action * * *
has expired, the plaintiff * * * may commence a new action within one year after
such date.”3
        {¶ 37} Of equal significance here is R.C. 2107.76, which at the relevant
time in this case provided that “[n]o person * * * may commence an action * * *
to contest the validity of the will more than four months after the filing of the
certificate described in division (A)(3) of section 2107.19 of the Revised Code.”4
        {¶ 38} There is longstanding authority in Ohio, going back five decades,
holding that existing precedent and public policy considerations support the
proposition that the saving statute does not apply to will-contest actions. See
Alakiotis v. Lancione (1966), 12 Ohio Misc. 257, 41 O.O.2d 381, 232 N.E.2d 663
(the saving clause of R.C. 2305.19 does not apply to a cause of action created by
statute that is unknown at common law and that contains its own statute of
limitations); Barnes v. Anderson (1984), 17 Ohio App.3d 142, 17 OBR 242, 478


3. The General Assembly has since amended R.C. 2305.19, effective June 2, 2004; however, the
amendments do not affect my analysis in this case.

4. The General Assembly amended R.C. 2107.76, effective October 31, 2001, to change the time
within which to contest the validity of a will from four months to three months.




                                            10
                                 January Term, 2004




N.E.2d 248 (the saving clause is not available to a will-contest action); Peltz v.
Peltz (June 27,1997) Geauga App. No. 96-G-2026, 1997 WL 402373 (precluded
use of saving statute to refile will-contest action); and Cross v. Conley (July 12,
2000), Highland App. No. 99CA005, 2000 WL 1010771 (purpose of short statute
of limitations in will-contest cases is to promote speedy estate administration, and
application of the saving statute would unnecessarily delay the administration of
estates, precisely what the short statute of limitations meant to prevent).
         {¶ 39} The real issue confronted by the courts considering these matters is
best exemplified by the general rule catalogued in 34 Ohio Jurisprudence 2d
(1958) 505, Limitations of Actions, Section 19, as cited by Justice Holmes in his
dissent in Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 165, 6 OBR
221, 451 N.E.2d 1196 (Holmes, J., dissenting):
         {¶ 40} “ ‘Where by statute a right of action is given which did not exist at
common law, and the statute giving the right fixes the time within which the right
may be enforced, the time so fixed becomes a limitation or condition on such
right and will control.’ ” (Emphasis added).
         {¶ 41} Justice Holmes concluded in his dissent in Reese that when the
legislature placed a two-year limitation on the commencement of an action in the
statute creating the right and not in the general statute of limitations, it strongly
denoted that such a limit on filing became part of the statutory right granted. Id.
That rights limitation came into question and fell with the rights/remedy clash in
Reese.
         {¶ 42} In the instant case, however, the court of appeals further
recognized a key distinction between claims against the state, workers’
compensation appeals, and age-discrimination cases seen in Reese, Lewis v.
Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285, and Osborne v.
AK Steel/Armco Steel Co., 96 Ohio St.3d 368, 2002-Ohio-4846, 775 N.E.2d 483,
on the one hand, and a will contest on the other: dismissal of the former causes of




                                          11
                                SUPREME COURT OF OHIO




action leaves nothing pending, while dismissal of a will-contest action does not
stay the continuing administration of an estate. The appellate court opined, “A
successful will contest * * * may require that, at least in part, the administration
of the estate be undone * * *.”
        {¶ 43} In its opinion, the Tenth District further highlighted a concern with
respect to extending the trend of our most recent line of cases to will-contest
actions because it noted that will contests are favored with an increasingly shorter
statute of limitations, presumably to speed the administration of estates.5
However, applying the saving statute to a will-contest action would neither stay
nor prevent the probate court from distributing the assets of an estate; therefore, it
is entirely conceivable that an estate could be closed and a final account filed
during the one-year period of the running of the saving statute.                     Such a
circumstance could result in litigation to recover estate assets that had been
distributed by administrators, executors, or probate courts or could lead to long
delays in the ability to transfer real estate or bank accounts due to potential
liability or future claims, all as forecasted by the appellate court and all contrary
to the legislative intent expressed in R.C. 2107.76.
        {¶ 44} Nor can any meaningful insight be gleaned from the fact that the
legislature has never included a provision in either R.C. 2107.76 or R.C. 2305.19
to render the saving statute inapplicable to will-contest actions. This is because
every judicial decision in Ohio on the subject has held that the saving statute does
not apply to a will-contest action. Therefore, relying on judicial authority, until
today, the legislature had no reason to consider or address this issue. My view is
that the legislature will now act to blunt the impact of the majority opinion, but
only after it becomes aware of the problems created by this decision, which
unsettles the law in this area.

5. Originally four months at the time of this case filing and now amended to three months. See
145 Ohio Laws, Part III, 5092, 5095, and 2001 H.B. No. 85.




                                             12
                               January Term, 2004




        {¶ 45} I see no benefit in retreating from earlier judicial determinations
made in will-contest cases merely because our court has done so in suits against
the state, in workers’ compensation appeals, and in age-discrimination cases.
While each of those respective statutes created causes of action not known at
common law, and while each contained a limited filing period, none are similar to
the administration of an estate – which would proceed during the running of the
one-year period of the saving statute. Thus, will contests are different from other
claims for relief.
        {¶ 46} For these reasons, I respectfully dissent from the majority’s
determination that the saving statute, R.C. 2305.19, applies to a will-contest
action and would reverse the decision of the appellate court.
        LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
                               ________________
        Luper Neidenthal & Logan and Jack D’Aurora, for appellee.
        William T. Bonham, for appellants.
                             ____________________




                                        13
