[Cite as In re Estate of Cornetet , 2010-Ohio-4874.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              HIGHLAND COUNTY

IN THE MATTER OF:              :
                               : Case No. 09CA24
THE ESTATE OF                  : Released: October 1, 2010
ROY CORNETET                   : DECISION AND JUDGMENT
                               : ENTRY
_____________________________________________________________
                       APPEARANCES:

Susan M. Zurface Daniels, Hillsboro, Ohio, for Appellant.

Chaley Peelle Griffith, Peelle Law Offices, Hillsboro, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1}       Mae Fern Miller, Appellant, appeals the decision of the

Highland County Court of Common Pleas, Probate Division, admitting the

lost will of Roy Cornetet to probate. Appellee, Doris Sears, presented the

lost will to the trial court pursuant to R.C. 2107.26, and the trial court found

that the lost will met the statutory requirements. Miller argues the trial court

erred in 1) finding there was insufficient evidence to overcome the

presumption that the will had been revoked; 2) excluding certain witness

testimony as hearsay; 3) finding that there was no evidence of intent to

revoke the will, as required by R.C. 2107.33. However, because the trial

court's order admitting the will to probate does not constitute a final

appealable order, we must dismiss the current appeal.
Highland App. No. 09CA24                                                         2


                                    I. Facts

      {¶2}     Roy Cornetet, the decedent whose estate is at issue in this

appeal, had attorney Ronald Swonger prepare a will for him in March 2006.

Cornetet's wife was deceased at the time the will was drafted. Under the

terms of the will, after four specific bequests, the rest of Cornetet's estate

was to be equally divided between Doris Sears and Toy Fender. Sears and

Fender are nieces of Cornetet; their mother was the sister of Cornetet's late

wife. The will also named Sears as the executor of the estate.

      {¶3}     Sears testified that before his death Cornetet had told her

where the will was located in his home. After Cornetet's death in March

2009, Sears was unable to locate the will. She testified that other items of

personal property were missing from the home as well. Unable to provide

the original will, Sears moved to admit a copy of the will for probate under

R.C. 2107.26. At the same time, she applied to administer the estate. Mae

Fern Miller, Cornetet's sister, objected to the admission of the copy of the

will. Miller further moved that she, herself, be appointed administrator.

      {¶4}     The matter proceeded to trial in June 2009. Miller’s

opposition to the admission of the copy of the will was based on the theory

that the original will had not been lost. Instead, she claimed Cornetet had

revoked the will sometime before his death by destroying it. To substantiate
Highland App. No. 09CA24                                                       3


her claim, Sears presented the testimony of Gerald Roche, a friend of

Cornetet. Roche testified that while Cornetet was in the hospital,

immediately preceding his death, he told Roche that he had torn up the will.

Sears presented her own witnesses who testified that Cornetet had stated on

several occasions that he had a will and that Sears was going to be the

executor. Further, there was testimony that Cornetet had stated such shortly

before he passed away.

      {¶5}    The trial court subsequently found in favor of Sears and

ordered the copy of the will admitted to probate. Miller appeals that order in

the current appeal.

                           II. Assignments of Error
First Assignment of Error
      THE TRIAL COURT ERRED IN ADMITTING THE
      UNEXECUTED, UNWITNESSED, UNSIGNED, AND UNDATED
      COPY OF DECEDENTS WILL TO PROBATE AS A LOST WILL
      PURSUANT TO O.R.C. § 2107.26, AS THE EVIDENCE
      PRESENTED WAS INSUFFICIENT AS A MATTER OF LAW TO
      OVERCOME THE PRESUMPTION THAT THE WILL WAS
      REVOKED.

Second Assignment of Error

      THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE
      TESTIMONY OFFERED BY THE OPPONENT OF THE
      UNEXECUTED, UNWITNESSED, UNSIGNED AND UNDATED
      COPY OF DECEDENTS WILL TENDING TO SHOW THAT THE
      WILL WAS NOT LOST, BUT HAD BEEN REVOKED, UPON
      APPLICATION OF THE RULES OF EVIDENCE AS THE SAME
      ARE INAPPLICABLE TO THIS TYPE OF PROCEEDING AND,
Highland App. No. 09CA24                                                         4


      EVEN IF APPLIED, THE TESTIMONY FALLS WITHIN A
      DESIGNATED EXCEPTION.
Third Assignment of Error

      THE TRIAL COURT ERRED IN FINDING THAT, EVEN IF THE
      STATEMENTS OF GERALD ROCHE WERE ADMISSIBLE,
      THERE WAS NO EVIDENCE OF INTENT TO REVOKE THE
      WILL AS REQUIRED BY O.R.C. § 2107.33 AND THAT,
      THEREFORE, THE OPPONENT HAD NOT MET HER BURDEN,
      AS THE PRESUMPTION OF REVOCATION ENCOMPASSES
      THE INTENT TO REVOKE.

                         III. Final Appealable Order

      {¶6}     Before an appellate court may consider the merits of an

appeal, it must first determine whether the decision in question constitutes a

final appealable order. Under Ohio law, if an order is not final and

appealable, appellate courts have no jurisdiction to review it. General

Accident Insurance Co. v. Insurance Co. of North America (1989), 44 Ohio

St.3d 17, 20, 540 N.E.2d 266. Even if the parties do not address the lack of

a final appealable order, the reviewing court must raise the issue sua sponte.

Englefield v. Corcoran, 4th Dist. No. 06CA2906, 2007-Ohio-1807, at ¶24

(Kline, J., dissenting); Whitaker-Merrell Co. v. Geupel Construction Co.

(1972), 29 Ohio St.2d 184, 186, 58 O.O.2d 399, 280 N.E.2d 922.

      {¶7}     Under R.C. 2505.02, an order is final when it is: an order that

affects a substantial right in an action that in effect determines the action and

prevents a judgment; an order that affects a substantial right made in a
Highland App. No. 09CA24                                                           5


special proceeding or upon a summary application in an action after

judgment; an order that vacates or sets aside a judgment or grants a new

trial; or an order that grants or denies a provisional remedy. R.C.

2505.02(B)(1)-(4). “A final order determines the whole case, or a distinct

branch thereof, and reserves nothing for future determination, so that it will

not be necessary to bring the cause before the court for further proceedings.”

Savage v. Cody-Ziegler, Inc., 4th Dist. No. 06CA5, 2006-Ohio-2760, at ¶8,

citing Catlin v. United States (1945), 324 U.S. 229, 233, 65 S.Ct. 631, 89

L.Ed. 911 and Coey v. U.S. Health Corp. (Mar. 18, 1997), Scioto App. No.

96CA2439.

      {¶8}     In the case sub judice, the trial court's entry admitting the will

to probate states that it is an appealable order and that there is no just cause

for delay. But the trial court's use of such language does not make it so. A

lower court's assertion that an order is final does not make appealable an

otherwise nonappealable order. See, e.g., Dickess v. Stephens, 4th Dist. No.

04CA29, 2005-Ohio-1293, at ¶12. And Ohio courts have made it clear that

an entry admitting a will to probate is not a final appealable order.

      {¶9}     “[T]he exclusive relief from an order admitting a will to

probate is the filing of a will contest action.” In re Estate of Barkasz v.

Turjanyi (Feb. 9, 1995), 8th Dist. No. 66905, at *2, citing In re Frey's Estate
Highland App. No. 09CA24                                                          6


(1942), 139 Ohio St. 354, 359, 40 N.E.2d 145. Accordingly, a will contest is

a condition precedent to challenging the admission of a will to probate. “It

is clear that there is no judgment or final order in respect to the probate and

contest of the will binding upon a party interested until the termination of

both proceedings.” Frey at 360. “The order of the Probate Court admitting

to probate is only a conditional order; otherwise there would be two final

orders.” Id. at 361. “As to the argument that the court erred in admitting the

Will to probate * * *, we find it to be non-reviewable. This order is non-

reviewable because an order admitting the Will to probate is an interlocutory

order, not a final order.” Barkasz at *2. See, also, Palazzi v. Estate of

Gardner (June 30, 1986), 12th Dist. No. CA85-10-135; In the Matter of the

Estate of Whitman (April 4, 1980), 6th Dist. NO. WD-80-3.

      {¶10} Accordingly, in the case sub judice, the trial court's order

admitting Cornetet's lost will to probate does not constitute a final order.

And because Miller's appeal is based on that interlocutor order, we must

dismiss it.

                                                      APPEAL DISMISSED.
Highland App. No. 09CA24                                                        7


                           JUDGMENT ENTRY

      It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court, Probate Division, to carry this
judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

                                       For the Court,


                                       BY: _________________________
                                           Matthew W. McFarland
                                           Presiding Judge




                           NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
