In Re Estate of Wernet

After a decision of this cause upon the merits but before journalization, the appellee moved to dismiss the appeal for the reason that the matter was not appealable and this court was therefore without jurisdiction to entertain the appeal.

Although it was not expressly stated in our opinion upon the merits that this cause was directly appealed from the Probate Court to this tribunal, such of course is the fact.

It is recognized by both parties that Courts of Appeals, since their creation in 1912, are constitutional courts which have their jurisdiction conferred, limited and defined by Section 6, Article IV of the state Constitution. We recite its provisions in part:

"The Courts of Appeals shall have * * * appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law."

Section 7 of Article IV makes Probate Courts, courts of record. And now quoting from the recent case of Squire, Supt., v. Bates,132 Ohio St. 161, 163 and 164, 5 N.E.2d 690, we find it again reiterated:

"It is firmly established in this state that the appellate jurisdiction thus conferred can neither be enlarged, curtailed, nor limited, but that the General Assembly may provide the method of exercising such appellate jurisdiction. Commonwealth Oil Co. v. Turk, 118 Ohio St. 273, 275, 160 N.E. 856, 857."

The latter portion of the court's comment is engendered by the phrase "as may be provided by law." With this interjection, we continue and set forth the next succeeding paragraph of the court's opinion, which reads:

"Admitting the validity of a statute which would authorize the appeal of a chancery case direct from a Probate Court to a Court of Appeals, do we have such a case before us?"

The matter therein involved was the questioning of a trustee's account. It was held to be a purely statutory question and not a chancery matter and therefore not appealable as such. The court had directly under consideration Sections 10501-56 and 10501-62, General Code. The latter was held unconstitutional; but concerning Section 10501-56, it was said, "the constitutionality of this measure cannot be successfully challenged." It provides in part that an "appeal may be taken to the Common Pleas Court" from an order effecting the settlement of a trustee's account. (Italics ours.)

Examining the Bates case further, as appears from its report, it shows the appeal to have been perfected on November 2, 1935, from an order of the Probate Court, and that the Court of Appeals dismissed the appeal because it was not a chancery matter. The court in the course of its opinion discourses upon various provisions of the new Appellate Procedure Act and their relation to Sections 10501-56 and 10501-62, General Code, particularly Section 12223-3 thereof. Frankly, for what purpose, we are unable to understand, inasmuch as the act itself, Section 12223-49, General Code, expressly provides "this act shall become effective on the first day of January, 1936, and shall apply to the proceedings in any action where the final order or judgment appealed from is rendered after that date." (Italics ours.) The Bates appeal bears date of November 2, 1935. It follows that the Appellate Procedure Act could have no application to the appeal, but that it was governed by the then existing law.

As we read the Bates case with respect to Section 10501-56, General Code, as it then and does now exist, it is held that a questioning of a trustee's account is not in chancery and not appealable as such on law and fact. It is inferentially held that the word "may" therein, when considered in its relation to the constitutional clause, Section 6, Article IV, "as may be provided by law," is to be construed as legislative creation of a proper "method of exercising such appellate jurisdiction" in equitable causes. (Italics ours.) In other words, the method of appeals from Probate Courts on law and fact must follow Section 10501-56, General Code.

The instant cause in its inception had its principal question enmeshed in the interpretation of a trust created by a will. It therefore presented a chancery matter. See Crowley, Admr., v.Crowley, 124 Ohio St. 454, 179 N.E. 360. It, however, did not continue as such, for the appeal to this court is predicated upon a question of law and not law and fact. With this thought in mind and the fact that this appeal is or may be governed by certain provisions of the new Appellate Procedure Act, not as yet noted, we shall desirously proceed with an apology for our seemingly long comments on the Bates case, which we deem proper because both sides, in part, rely upon it.

The Appellate Procedure Act contains Section 12223-3, General Code. It provides in part:

"Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law, except that appeals from judgments of Probate Courts * * * upon questions of law and fact shall be taken in the manner now provided for in General Code Sections 10501-56 to 10501-61, inclusive * * *."

The portion from the word "except" on, may be elided from this consideration because this is an appeal on a question of law. Looking to the first portion of this statute as set forth, it is clear that the section is declaratory of the jurisdiction conferred upon this court by Section 6, Article IV of the state Constitution. The succeeding sections "provide by law" the method of exercising appellate jurisdiction, that is, the required procedural steps which are to be followed in a given case. The section, however, contains a limitation, for it reads "unless otherwise provided by law." Our search must therefore be extended to learn if any exception statutes have been enacted.

Prior to the Appellate Procedure Act there existed Section 12241, General Code. It provided how proceedings in error upon certain matters arising in the Probate Court should then be prosecuted. It directed that such proceedings "may" be carried to the Court of Common Pleas. Such was then the practice, but the new act repealed Section 12241 and enacted Sections 12223-27, and 12223-3 which refers to Section 10501-56, General Code. Section 12223-27 provides:

"A judgment rendered or final order made by a Court of Common Pleas, a Probate Court or by any other court of record or by a judge of any of such courts may be reversed, vacated or modified upon an appeal on questions of law by the Court of Appeals having jurisdiction in the county wherein the Common Pleas or other court of record is located, for errors appearing on the record."

This section is again declaratory of the constitutional provision. It is not followed by any section prescribing a special manner of procedure differing from the general rules for appeals as found in Sections 12223-4 to 12223-21, inclusive, General Code. The appellant follows this general method of perfecting and prosecuting her appeal and relies upon the constitutional provision and Sections 12223-3 and 12223-27, General Code.

The appellee, however, maintains a special section or sections exclusively control this appeal, and that it is therein otherwise "provided by law." These sections are Sections 10509-190 and 10509-191, General Code. They are found embodied in the new Probate Code (114 Ohio Laws, 442 and 443) under the title of Executors and Administrators, subtitle Distribution. The effective date of this act was January 1, 1932, four years before the effective date of the Appellate Procedure Act. As indicated by the subtitle, both sections have to do with the enforcement of orders of distribution. They provide for appeals and error proceedings which may be taken to the Common Pleas Court and to the Court of Appeals "from any order, judgment or decree * * * relating to the enforcement of orders of distribution."

In view of appellee's claim respecting the applicability of Sections 10509-190 and 10509-191, General Code, and because it is said that "the matter in question solely and exclusively involves the distribution of part of the estate," it behooves us to consider just what is understood by an "order of distribution." In so doing little difficulty is encountered. It is the final direction of a Court of Probate made to an executor after the payment of the debts of an estate and the confirmation of the executor's accounts authorizing the personal representative to divide the balance of the estate remaining in his hand among those entitled to receive it in proper portions.

Surely the judgment from which the present appeal is prosecuted is not such an order. Just because payment of a year's allowance would diminish the distributive balance of an estate, it does not follow that its order of payment is an order of distribution. A year's allowance is not understood to be a distributive portion of an estate. It is unlike a dower interest which ends at the widow's death, because a year's allowance survives death. Since the time of Allen v. Allen's Admr., 18 Ohio St. 234, it has been consistently considered that a year's allowance made by the appraisers of an estate for the benefit of a widow and children is a debt of the estate. It is therefore not an item entering into the distribution of the assets of an estate, but, as a debt, it should be paid as other obligations of an estate are paid and charged as such and credit asked as in the payment of all debts.

The appellant's action is therefore in fact one to collect a debt. It is not an appeal to this court from an order of distribution upon which the executor contemplates a division of estate property in whole or in part, or in money or in kind, which the appellant conceives to be improperly made or about to be made.

It is the judgment of the court that the method of appeal selected by the appellant is proper and confers upon this court jurisdiction of the cause. The motion is overruled, the former judgment of the court is adhered to, and it is ordered to be forthwith journalized along with the order herein made.

Judgment accordingly.

MONTGOMERY, P.J., and LEMERT, J., concur.