In Re Trust of Marshall , 78 Ohio App. 45 ( 1945 )

This matter is submitted on motion to dismiss the appeal of Mary M. Von Schmidt, trustee, for the following reasons: (1) The proceeding and judgment below are not appealable on questions of law and fact; and (2) no valid reason exists to hold this appeal as an appeal on questions of law.

The record discloses that the action below was on motion of John L. Marshall, a beneficiary of the trust, to remove Mary M. Von Schmidt as trustee. The proceeding was instituted under the provisions of Section 10506-53, General Code. The Probate Court sustained the motion and ordered the trustee removed.

This appeal on questions of law and fact can stand as such only if the motion for a dismissal of the trustee is a chancery case within the meaning of that term as used in Section 6, Article IV of the Constitution of Ohio. It may be conceded that under the common law the administering of trusts and the appointment of guardians were chancery cases. However, in the case of In reEstate of Gurnea, 111 Ohio St. 715, 146 N.E. 308, the court held that probate matters have lost their chancery character in Ohio, and that such proceedings are not now chancery cases as that term is used in the Constitution. That decision was followed in Squire, Supt. ofBanks, v. Bates, 132 Ohio St. 161, 5 N.E.2d 690; In reGuardianship of Moyer, 68 Ohio App. 319, 40 N.E.2d 695; andIn re Estate of Bates, 142 Ohio St. 622, 53 N.E.2d 787. In the last cited case, the court said:

"The question before the Probate Court in this case related to exceptions to the inventory and appraisement filed by an executor. It is not a chancery case. If there had previously been any basis for controversy relative thereto, it was definitely determined by the decision of this court in the case of Squire,Supt. of Banks, v. Bates, 132 Ohio St. 161, 5 N.E.2d 690, where it is held in the first proposition of the syllabus as follows:

"``The settlement of the account of a testamentary trustee in the Probate Court is not a chancery case and hence not appealable as such from the Probate Court to the Court of Appeals.'"

The appellant cites the case of Madden v. Shallenberger,121 Ohio St. 401, 169 N.E. 450, which we hold is not in conflict with the views stated. That was an action in the Common Pleas Court, not the Probate Court, for the ostensible purpose of securing the advice and direction of the court as to the provisional settlement of a case to set aside the will of testatrix, instituted by her daughters and heirs at law, by and under which will the wards of the plaintiffs took all their interests in the estate of the testatrix. The court held that was a chancery case, but we do not think that it is in conflict with the doctrine announced in the case of In re Estate of Gurnea,supra.

Coming now to the second branch of the motion, we find that this appeal was made in good faith and the appeal should be allowed to stand as one on questions of law. The appeal on questions of law and fact will be dismissed. Leave is granted the appellant to prepare and file a bill of exceptions within thirty days from the filing of the entry.

Judgment accordingly.

HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.