In Re Trust of Stuckey

The motion to certify the record of this case to the Supreme Court on the ground that the judgment of this court is in conflict with the judgment in the case of Sherrets, Admx., v.Tuscarawas Savings Loan Co., 78 Ohio App. 307,70 N.E.2d 127, is overruled. The instant case, as it came before us, was on appeal from the judgment of the Probate Court in a proceeding properly instituted therein under subdivisions 3 and 4 of Section 10501-53, General Code.

The concluding paragraph of that section is:

"The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute."

As stated in our former opinion, the matter properly before the Probate Court could not have been disposed of without passing upon the validity of the deed in question. There is no limitation or denial by statute of the power exercised.

Referring to the Sherrets case, we direct attention to the statement of facts appearing in the opinion, on page 313, to wit:

"It must be remembered that the entire transaction of which plaintiff complains occurred prior to the death of her decedent. It is not a case of someone withholding an asset of the estate under a claim of gift or ownership from an estate's personal representative; but a fully executed transaction whereby decedent parted with title and possession in her lifetime. All the administratrix of her estate had was a right of action to recover property or its money value. It is exactly in the same situation as a promissory note due the estate, or an action for personal injury to the decedent's person or property, or property withheld which could only be recovered by an action in replevin."

And the court, in the Sherrets case, on page 312, cited Borchard on Declaratory Judgments. Borchard's statement, the generally adopted doctrine relative to declaratory judgments, is that the Declaratory Judgments Act is only a new procedural device or vehicle of relief and is not an expansion of jurisdiction.

Motion overruled.

WISEMAN, P.J., NICHOLS and MONTGOMERY, JJ., concur.

NICHOLS, J., of the Seventh Appellate District, and MONTGOMERY J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.