Citation Numbers： 29 Ohio Law. Abs. 161
Judges： Crow, Guernsey, Klinger
Filed Date： 4/15/1939
Status： Precedential
Modified Date： 11/12/2024
This is an appeal on questions of law from a judgment of the Common Pleas Court of Union county overruling exceptions to the first partial account of Fred Gabriel, administrator of the estate of Ella S. Blue, deceased, on an appeal on questions of law and fact from a judgment of the Probate Court of said county overruling exceptions to said first partial account.
Two separate appeals have been perfected, one by Nellie Turner Newborn and one by Ottie M. Amrine and others, all claiming as heirs of said decedent.
Ella S. Blue died intestate on Hay 18, 1938. On the day following her death Fred Gabriel filed an application for letters of administration and was subsequently appointed as administrator. Thereafter, on June 20, 1938, Mrs. Tommie Southard, a sister-in-law of the deceased, presented to the administrator a claim against the estate of $7,800 based upon services alleged to have been performed for the deceased. At about the same time Dr. Harry G. Southard, a first cousin of the deceased, presented to the administrator a claim against the estate for $3,120.16. This claim was subdivided into two parts, the sum of $779 being for certain automobile trips- and the balance of $2,341.16 being for professional services alleged to have been' rendered to the deceased.
On June 22, 1938, the day after these claims were presented the administrator filed in the Probate Court a schedule of debts severally listing the foregoing claims in the respective amounts mentioned together with certain other fclaims as allowed by said administrator as claims against said estate. The matter was assigned for hearing on July 2, 1938, and notice thereof was given by publication. One of the heirs, Philis Blue, filed exceptions to this schedule.
In the exceptions, Philis E. Blue represented that he is interested in the estate of Ella S. Blue, deceased, and excepted to the schedule of claims, debts and liabilities, in this, to-wit: “That said claims are not specified nor itemized and are excessive, and particularly the claims of Dr. H. G. Southard and Mrs. Tommie Southard which claims are listed in said schedule of claims, debts and liabilities, and further that said claims are unjust and should oe disallowed.”
On July 5,1938, said schedule of debts and the exceptions of Philis Blue thereto were heard by the court and in the entry on the hearing thereof the Probate Court made the following findings and orders: “And the court being fully advised in the premises and after evidence was duly taken on behalf of said administrator and on behalf of the creditors of said estate and on behalf of said exceptors, finds that said schedule of claims, debts and liabilities is in all respects in conformity to law and that the claims of Dr. Harry G. Southard and Tommie L. Southard are not excessive and that the same should be approved and allowed as set forth in said schedule of claims, debts and liabilities.
“It is therefore ordered, adjudged and decreed that schedule of claims, debts and liabilities be, and the same hereby is, approved and confirmed and it is ordered that said administrator proceed according to law with respect to the same.”
No appeal was perfected from the findings and orders of the court made on said hearing.
O» July 8th said administrator filed his first partial account of said estate, in the Probate Court, showing among other things the payment of the following claims for which credit is claimed by said administrator in said account, to-wit:
July 8, Voucher No. 20, “Paid to Harry G. Southard, $3,120.16 ”
July 8, Voucher No. 21, “Paid to Mrs. Tommie Southard $7,800.”
The payment of the two claims above mentioned for which credits are claimed are in the respective amounts for which said claims appear as allowed in said schedule of debts, and are evidenced by separate vouchers filed with said ac
On July 23rd one Barbara Southard, an heir of the decedent, filed her exceptions to the account. in which she stated: “That said account is not true and proper in that; the administrator has set forth therein a payment of $3,120.16 to H. G. Southard for medical services rendered to the decedent and this claimant says said decedent suffered no illness of any great length nor were any operations performed on the decedent to warrant an expenditure of $3,120.16 for medical services.
' “The heir herein also excepts as to an item of $7,800 which said account reflects as having been paid by the administrator to Mrs. Tommie L. Southard for care and keep of the deceased and alleges that the services rendered to the decedent by Tommie L. Southard were not of such value and therefore objects to the approval of the first partial account of Fred Gabriel, administrator of the estate of Ella S. Blue.”
On the same day, Nellie Turner Newborn, representing that she is an heir at law of Ella S. Blue, deceased, filed exceptions to said account, in which she states: “That said first partial account is not correct and is especially not correct wherein said administrator credits himself with the following payments: Dr. H. G. Southard, $3,120.16. Mrs. Tommie Southard, $7,800.”
And on the same date, the said Philis E. Blue filed his exceptions to said account in which he excepted in the following particulars: “That said claims are not specified nor itemized and are excessive, and particularly the claims of Dr. R. G. Southard and Mrs. Tommie Southard, which claims are itemized in the first partial account of said estate. Exceptor further represents to the court that said claims are unjust and unreasonable and should be disallowed.”
On August 18th, the court upon the hearing of said first partial account and said exceptions thereto, found that said exceptions were not well taken and that said account is in all respects correct and according to law, and approved and confirmed the same and assessed the costs of said exceptions against the ex-ceptors and fixed bond of appeal in the sum of fifty dollars, and Nellie Turner Newborn and Philis E. Blue each gave separate notices of appeal to the Common Pleas Court and gave bonds pursuant to the order of the court.
Upon said appeals to the Common Pleas Court said account and the exceptions thereto were heard de novo by said court.
As shown by the bill of exceptions in this case, Dr. Southard testified he had been paid the amount of his account by the administrator around July 8th, payment being made by cashier’s check and that the money that was paid to him is under nis exclusive control and he would be responsible if anything for Or against and that he did not know of any restrictions of any kind tied to the payment.
Mrs. Tommie Southard also testified that she had been paid $7,800 by the administrator and that she had the money in her control in the bank in which Mr. Gabriel worked, and that the payment of $7,800 was in a cashier’s check which she had not cashed yet to protect Mr. Gabriel in case anything comes against him; that she didn’t have the check and didn’t know who had it; that she saw the check. On cross-examination, in reply to a question “But as I understand it you are not to cash that check until this law suit is finished?” she answered, “Well, not the cashier’s check to protect Mr. Gabriel.”
On direct examination Fred Gabriel the administrator testified that he paid the claims of Dr. Southard and Mrs. Tommie Southard as shown in his partial account. But later, on cross-examination he testified as follows:
“Q. Mr. Gabriel, do you have in your possession the $7,800 check payable to Mrs. Tommie Southard?
“A. No sir..
“Q. Do you know where it is?
“A. No sir.
*164 “By Mr. Sanders: (One of the attorneys for the administrator.) I can tell you where it is. Mrs. Southard’s attorney has it.
“By Mr. C. A. Hoopes: (One of the attorneys for the administrator.) Her attorney has it.
“Q. Does the same situation exist with reference to the check given Tommie Southard, that is that it is a cashier’s check uncashed?
“A. I presume it is.”
As shown by the bill of exceptions other evidence was offered on the hearing of the exceptions in the Common Pleas Court, both on the part of the administrator and the exceptors with reference to the circumstances under which the services rendered by Doctor Southard and Mrs. Tommie Southard had been rendered, ánd the nature and value of such services, but in the view we take of this case as hereafter set forth, it is unnecessary to set forth or discuss this evidence.
A number of errors are assigned in the respective briefs of appellants but as argued in the briefs are limited to two contentions. First, that the judgment of the court is contrary to law in that it is not sustained- by any evidence. Second, the judgment of the court is against the weight of the evidence.
The determination of each of these assignments of error involves the consideration of the provisions of §10509-118, GC, and §10509-119, GC, as amended, 116 Ohio Laws, pages 389 and 399, and §10509-120, GC, in effect at all times during the administration of the decedent’s estate, and these provisions will therefore be considered before the assignments are considered in detail.
Such sections provide as follows:
“Section 10509-118, Schedule of Debts. Not later than five months after the date of his appointment, every executor or administrator shall make and return upon oath into court a schedule of all known claims, debts and liabilities against the estate, including any which may be known to the executor or administrator but not presented. Such schedule shall state the name and address of each claimant, the amount claimed, whether allowed or rejected, whether secured by mortgage or otherwise, and the date of maturity if not yet due.
“Section 10509-119. Upon the filing of the schedule of debts the court shall forthwith set a day, not later than one month after the day such schedule of debts was filed * * * nor prior to one week from the day of publication of notice for hearing * * * thereon. * * * One week’s notice of the hearing * * * shall be given by publication thereof in a newspaper of general circulation in the county. If more than one schedule is specified in the notice the costs must be paid in equal proportions by the respective estates. In addition to the notice by publication, ten days’ notice of the hearing shall be given to all creditors whose claims are shown on the schedule to have been rejected in whole or in part by the executor or administrator.
“For good cause the hearing may be continued for such time as the court deems reasonable. Exceptions to the schedule of debts may be filed at any time prior to five days before the date set for the hearing or the date * * * to which hearing has been continued- as provided herein * * * by any person interested in the estate. When exceptions are filed, notice of the filing thereof and the day when the same will be heard must forthwith be given to the executor or administrator and to his attorney, and to the claimant or claimants whose claims are in question and their attorneys, by registered mail or personal service, unless such notice is waived. At the hearing the executor or * * * administrator * * * and any witness may be examined under oath. * * * The court shall have power to affirm, modify or reverse the action of the executor or administrator as to any item contained in the schedule of debts, excepting action on claims on which suit has already been brought, or which have been referred to referees, or which have been disallowed by requisition, and may dis*165 pose of any other matters properly raised by exceptions without the intervention of a jury.
“Subject to the right of review, and to be opened up ror fraud, collusion or mistake, the finding and order of the court shall be final as oetween parties who have filed exceptions or otherwise voluntarily entered their appearance.
“Section 10509-120. When a person interested in an estate files exceptions to the schedule of debts, m the Probate Court, either party may appeal from its finding, order or judgment or hearing thereof, to the Common Pleas Court.”
There are two decisions of Courts of Appeals in which §10509-119, GO has been construed, Lacotosh v Brothers, Admrx., 52 Oh Ap 158, 6 OO 274 and In re Estate of Perkins, 22 Abs 513, but both of these decisions relate to the provisions of said section before its amendment in 1935 and are inapplicable to the provisions of the section as amended.
In Lamneck’s Probate Digest, page 376, the author in commenting on this section states:
“The purpose of filing a schedule of debts is to enable the fiduciary to pay claims after the approval of the schedule without peril to himself. In other words, the validity of the claims is determined before payment, and the fiduciary does not subject himself to exceptions to his account for either paying or not paying a claim.”
And in the supplement to Deibel’s Ohio Practice under Rule 9, page 188-189, in commenting up this section it is Stated:
“The purpose of filing a schedule of debts is to enable the fiduciary , to pay claims after the approval of the schedule without peril to nimself. In other words, the validity of the claims is determined before payment, and the fiduciary does not subject himself to exceptions to his account for either paying or not paying a claim. It is deemed conclusive that if a fiduciary has allowed a claim, the court can review the allowance on the filing of exceptions. Likewise, if a claim nas been disallowed, the court can review the disallowance on the filing o'f exceptions subject to other possible limitations. * * *
“On exceptions filed to a schedule of debts, the probate iudge should proceed to a full hearing on tne questions raised which would include the validity of claims and the amount thereof because such questions were always determined when exceptions were filed to the account.”
It will be noted that under the provisions of §10509-118 it is the duty of every executor or administrator to make and return upon oath into the Probate Court a schedule of all known claims and liabilities against the estate, including any which may be known to executor or administrator but not presented; and it is mandatory that such schedule state the name and address of each claimant, the amount claimed, whether allowed or rejected, whether secured by mortgage or otherwise, and the date of maturity if not yet due.
It will also be noted that §10509-119, as amended, provides such details as to the hearing of such schedule, the giving of notices thereof, and of the filing of exceptions thereto and notices thereof, and of the examination of witnesses at such hearing, and of the powers of the court over the subject -matter and as to the finality of its findings and orders, as are only incident and essential to the validity of adversary proceedings.
It will also be noted that under the provisions of the last mentioned section the right to file exceptions to such schedule of debts is conferred on any person interested in said estate; and power is conferred on the court on the hearing of the schedule of debts and exceptions, if any thereto, to affirm, modify or reverse the action of the executor or administrator as to any item contained in the schedule of defts, ex-; cepting action on claims upon which suit has already been brought, or which have been referred to referees,, or which
From a consideration of the provisions above mentioned and the broad conferrance of power on the court on the hearing of a schedule of debts, it is clear that the Legislature in the enactment of said sections intended and accomplished a complete change in the policy of the laws of Ohio with reference- to the allowance of claims against the estate of a decedent, in that the validity of the allowance of the claim is no longer subject to determination upon exceptions to the account of the fiduciary but is finally determined on the hearing of the schedule of debts and exceptions, if any, thereto.
The jurisdiction in testamentary matters was originally vested in and exercised exclusively by the ecclesiastical courts and courts of chancery, in which all matters were determined by the courts without the intervention of juries. Since the adoption of the first Constitution in Ohio, jurisdiction in such matters has been conferred on the Probate Court, the eighth section of the fourth article of the Constitution now in effect providing that “the Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators * * *.”
With reference to this constitutional provision it has been held that: “This provision in the organic law of- the state gave to the Probate Court separate existence and separate jurisdiction.” In re Gurnea, 111 Oh St 715. See also, Brown, Executor v Reed, 56 Oh St 264 at page 270.
Section 10501-32, GC, provides: “Unless otherwise provided by law all questions of fact shall be determined by the probate judge, unless, in his discretion, he orders them to be tried by a jury or referred, as provided herein.”
Under the practice in the ecclesiastical courts, and in the courts of chancery persons interested in the estate of a decedent either as creditors or heirs had no right to trial by jury of their claims against or interest in such estate. And under the constitutional provision conferring jurisdiction on the Probate Court no such right exists except as it may be conferred by statute. §10509-119 expressly provides for a hearing without the intervention of a jury, and in other matters by force of §10501-32, unless it is otherwise provided by law all questions of fact shall be tried by the probate judge unless in his discretion, he orders them to be tried by a jury or referred.
The constitution preserves the right to trial by jury in those cases only where it existed previously' to its adoption, so that the statutory provisions as to the hearing without the intervention of a jury on the schedule of debts and exceptions, if any thereto, does not deny to any one his constitutional right to trial by jury. Brown, Executor v Reed, supra.
The constitutional provisions conferring jurisdiction on the Probate Court, above mentioned, confers no constitutional right in persons interested in the estate of decedents either as creditors or heirs to intervene in the administration of estates or except to the action of the fiduciaries therein, and such rights as such persons may have in the premises are derived soleJy from statutes, and in the absence of statutory provision conferring such rights, are without any rights whatever in the premises. Crawford, Admr. v Zeigler, et al, 84 Oh St 224.
The amended section mentioned expressly provides that subject to the right of review' and to be opened up for fraud, collusion or mistake, the finding and order of the court shall be final as between parties who have filed exceptions or otherwise voluntarily entered their appearance.
The. effect of this provision is clearly to bind the exceptors and those who have otherwise voluntarily entered their appearance and where they
As hereinbefore mentioned, under the provisions of §10509-119, GC, as amended, the right to file exceptions to the schedule of debts is conferred on any person interested in the estate which includes persons interested as creditors or heirs, and the finding and order of the court made therein is final as between parties who have filed exceptions or otherwise voluntarily entered their appearance, subject to the right of review and to be opened up for fraud, collusion or mistake.
Under the provisions of §10509-120, GC, when a person interested in the estate files exceptions to the schedule of debts in the Probate Court either party may appeal from its finding, order or judgment on hearing thereof, to the Common Pleas Court.
Considering these provisions in connection with the matters herein above considered, the question arises as to whether the finding and order made by the Probate Court is also final and binding upon persons interested in the estate who have neither availed themselves of their right to file exceptions nor otherwise voluntarily entered their appearance.
To determine this question it is necessary to consider the nature of the proceeding in which che finding and order ,is made. Its general purpose is to determine what claims are to be paid out of the personal estate in the hands of the fiduciary of the decedent. Unless the personal estate is insufficient to pay all claims, a creditor has no interest in the allowance or disallowance of the claims of another creditor and where, as in the ease at bar the estate of an intestate is involved, and the personal estate in the hands of the administrator is sufficient to pay all claims the affirmance, reversal or modification of the action of the administrator in allowing or disallowing claims is a matter of adjudication affecting only the individual claimants severally on the one side and the administrator as the representative of the estate and the heirs and distributees of the decedent on.the other side. In such a case the interest of the heirs and distributees in the matter adjudicated is joint and inseparable as their respective shares in the estate are affected pro tanto in the same manner by the action of the court; or to express it in another way, by reason of the nature of the subject matter the action of the court in affirming, reversing or modifying the action of the administrator in allowing or disallowing a claim as to one heir has a similar effect on the shares of the other heirs in the corpus of the estate.
A proceeding for the allowance or rejection of claims for payment out of a fund being administered by a court constitutes a proceeding in rem. St. Clair v Morris, 9 Ohio 16, 18; Bradford v Armstrong et, 20 Oh St 208, 219; Cross v Armstrong, 44 Oh St 613, 623, 624, 625; McMahon, Admr. v Aubach Co., et, 79 Oh St 103, 114; 1 C. J. S. 944, 1148, 1149, 1150; 34 C. J. 1171, et seq; Trimble et v Kansas City P. G. R. Co., Supreme Court of Missouri, Division No. 1, February 10, 1904, 79 Southwestern 678, 680.
The distinction between an action in rem and an action in personam is that in an action in rem a valid judgment may be obtained so far as it affects the res without personal service of process, while in an action to recover a judgment in personam, process must be personally served or there must be a personal or authorized appearance in
“While actual notice of personal service of process is not required yet in the absence of actual notice there must be such published or constructive notice or proclamation as the law requires in the particular case by which persons having interests to be affected are supposed to be informed of the proceeding.” 34 C. J. 1172.
“A judgment in rem is conclusive and binding ‘upon all the world/ that is, upon all persons who' may have or claim any right or interest in the subject matter of the litigation.” 34 C. J. 1172.
“In the strict sense of the term only those are parties to an action within the doctrine of res judicata whose names appear on the record as such, and who have continued in the case, without being dismissed or stricken out, including those who intervene or connect themselves with the record by entering an appearance or filing an answer or other pleading, * * * But in the larger sense the term ‘parties' includes all persons who have a direct- interest in the subject matter of the action, and have a right to control the proceedings, make defense, examine witnesses, and appeal if any appeal lies, and if a person who has such an interest in the subject matter as would be injuriously affected by the judgment, or is in privity with, or bound to indemnify, one of the parties, has notice of the pendency of the action and refuses or neglects to appear and avail himself of his rights, he will be concluded by the judgment, although not named as a party to the action.” 34 C. J. 992.
In t-he state of Illinois where the allowance of claims against an estate is made by the Probate Court upon hearing after publication of notice thereof with opportunity to persons interested in the estate to except to the allowance of the claims, it is held that as to the personal estate the allowance of a claim against an estate, not appealed from is conclusive not only upon the executors, but upon the heirs and legatees, unless its allowance was procured by fraud and collusion between the claimant and the personal representatives. Ward v Durham, 134 Ill. 195; Gold v Bailey, 44 Ill. 491.
And it is also held that: “Any other rule would lead to the intolerable practice of compelling persons holding claims against an estate to litigate them first with the administrator or executor and afterwards with the heirs or legatees, upon the same points which might have been investigated in the first case.” Sherman v Whiteside, 93 Ill. Ap. 572, 574, 575.
For these reasons, and upon the authorities hereinbefore mentioned, it is clear that unless otherwise expressly provided in statute, where a proceeding in Probate Court authorized by statute has as its object the affirmance, reversal or modification of the action of a fiduciary in the allowance or rejection of claims against the estate of a decedent in the process of administration in said court, and pursuant to statute, notice of the pendency thereof is given by publication with the right to any person interested in said estate to file exceptions to the schedule of debts exhibiting the action of the fiduciary on such claims, and to appear at the hearing of said schedule of debts and exceptions if any, thereto, at which witnesses may be examined under oath, and be heard thereon, and by further statutory provision additional notice of the filing of said exceptions, and of the hearing thereon, is required to be given to the fiduciary and his attorney and the claimant or claimants whose claims are in question, and their attorneys, an order entered by the court on said hearing affirming, reversing or modifying the actions of the fiduciary with reference to the allowance or rejection of claims is a final order having the force and effect of a judgment concluding all persons interested in said estate irre
And an examination of the cases in jurisdictions in which it is held that an order of the Probate Court allowing a claim or approving the action of a fiduciary in allowing a claim against an estate is not conclusive as against the heirs and distributees discloses that such allowances were made ex parte and/or it was specifically provided by statute that the allowance of a claim is the subject of exceptions to the account of the fiduciary.
In most jurisdictions the right to appeal from a final order of the character mentioned is derived from and regulated by statute, but in Ohio, by virtue of the provisions of §6 of Art. IV of the Constitution conferring jurisdiction on the Court of Appeals to review, affirm, modify or reverse the judgments of the Common Pleas Court, Superior Courts and other courts of record within the district, as may be provided by law, the right to appeal from such order to the Court of Appeals on questions of law exists, irrespective of statutory provisions.' The right mentioned applies to any person affected by the judgment of the Probate Court with respect to clainis against the estate wherether such person is a party to the record or not. 24 C. J. 385.
On the other hand, in Ohio the right of appeal from the Probate Court to the Common Pleas Court is derived from and governed exclusively by statute.
Under the provisions of the General Code of Ohio relating to the allowance or rejection of claims against estates of decedents the power to allow or reject is conferred on the fiduciary, and the jurisdiction conferred on the Probate Court under §10509-119 is to review the action of the fiduciary.
Under the general rules heretofore mentioned, assuming there are no statutes otherwise expressly providing, when upon such review the Probate Court affirms the action ol' the fiduciary in allowing a claim, or reverses the action of the fiduciary in disallowing a claim, the order of affirmance or reversal finally determines the validity of the claim for payment out of the personal estate of the decedent as against all persons interested in the estate; and when the Probate Court affirms the action of the fiduciary in disallowing a claim, or reverses the action of the fiduciady in allowing the claim, the claim stands as rejected and the claimant is remitted to his remedy of an action at law to establish and enforce his claim; and when the Probate Court modifies the action of. the fiduciary in allowing or rejecting a claim, if the part allowed is severable from the part disallowed the claim stands as allowed as to the part allowed and disallowed as to the balance, and as to the balance the claimant is remitted to his action at law; and in case the part disallowed is not severable the claimant may treat such partial disallowance as a rejection of the entire claim and sue for the entire amount. 24 C. J. 384.
In the enactment of the new Probate Code, in effect at all times pertinent to the case at bar, no changes were made in the phrasing of statutory provisions relating to the filing and subject matter of exceptions to accounts of the fiduciary of the estate of a decedent except as hereinafter mentioned'.
Section 10506-37, GC, a section of the new Probate Code, provides for the giving of notice by publication of the filing of an account and that exceptions to an account may be filed by an interested party not less than five days prior to the day set for hearing.
The provisions of this section are similar to those of repealed §11201, GC, except that in it the persons who may file exceptions are described and a time limit is fixed for filing exceptions. The description of persons who may file exceptions did not constitute any material change in statutory provisions as it had been uniformly held in the absence of such statutory description - that exceptions to the account may be filed by an interested. person.
Section 10506-38, GC, a section of the new Probate Code, provides that the probate judge may examine under oath
Section 10506-39, GC, a section of the Probate Code, provides that the Probate Court may hear and determine all matters relative to the manner in which the fiduciary has executed his trust, and as to the correctness of his accounts. There are no provisions in this section or any other statute specifically making the matter of the of the allowance of a claim against an estate the subject of exceptions to'an account. The provisions of this section are similar to the provisions of repealed §11031, GC, which were applicable to guardians and their accounts, but until the enactment of the new Probate Code there were no similar provisions in effect applying to fiduciaries of decedent’s estates and their accounts These provisions, however, made no material change in the matter of exceptions to an account, as in the absence of such provisions it had been uniformly held that all matters relative to the manner in which the fiduciary had excuted his trust, and as to the correctness of his account, were proper subjects for exceptions to the account. Prior to the taking effect of the new Probate Code the correctness of the account being a subject of exceptions and the statutes then in effect not providing for the adjudication by the court on the allowance or rejection of claims against the estate of a decedent by a fiduciary, it was further uniformly held that the matter of the allowance of a claim, credit for the payment of which was claimed in his account by the fiduciary, was a proper subject for determination on exceptions to his account.
Tt is obvious, however, that if under the -provisions of §10509-119, GC, of the new Probate Code, affirmance by thé qourt of the action of a fiduciary of á decedent’s estate allowing a claim against the estate has the force and effect of a judgment as- to all persons interested in the estate, the matter of the allowance of such claim and the credit claimed by the ■ fiduciary - for payment thereof pursuant to such affirmed allowance do not under the new Probate Code constitute a subject of exceptions to an account of a fiduciary as all persons interested in the estate are concluded in the premises by the judgment of affirmance.
"While, as hereinbefore noted, no material changes have been made in the substance of the statutory provisions relating to the filing and subject matter of exceptions to the "accounts of the fiduciaries of the estates of decedents, there is a provision of the new Probate Code, not existing under former statutes, which throws light on the effect to be given to the provisions of §10509-119, GC, supra. The provision referred to is as follows:
“The Probate Court shall have plenary power at law and in equity to dispose of any matter properly before the court unless the power is expressly otherwise limited or denied by statute.”
This provision clarifies the matter of the jurisdiction of the Probate Court at law and in equity and applies to the jurisdiction of the court the rules hereinbefore mentioned which in the absence of statutes otherwise expressly providing, are applicable to courts having general'jurisdiction over a subject matter.
We will therefore examine the provisions of §10509-119, GC, in the light of these rules.
As hereinbefore mentioned, the proceedings 'and order provided by said section are of such nature as to be final and binding on all persons interested in the estate unless otherwise expressly provided by statute. Said section provides that “subject to the right of review, and to be opened up for fraud, collusion or mistake, the finding and order shall be final as between parties who have filed exceptions or otherwise voluntarily entered their appearance,” •but does not purport to define the effect of the finding and order on persons interested in the estate who have neither availed themselves of the right to -file-’exceptions nor otherwise voluntar
The Probate Court, under the general principles of law applicable to courts exercising a similar jurisdiction, and the above quoted provisions of §10501-53, GC, has plenary power at law and in equity to dispose of any matters properly before the court unless the power is expressly otherwise limited or denied by statute. Such power, insofar as the persons interested in the estate not ex-' cepting nor voluntarily entering their appearance is concerned, is not expressly otherwise limited or denied by statute. In this situation, both under the general principles of law and the provisions of §10501-53, GC, above mentioned, the power exercised by the Probate Court under the provisions of §10509-119, GC, in entering its finding and judgment is plenary in law and in equity, and the pawer exercised being plenary and the proceeding being in rem and the court by reason of the nature of the proceeding and the publication of notice having acquired jurisdiction over all persons interested in the estate, such finding and judgment are conclusive as to those persons interested in the estate not coming within the classes mentioned without express statutory provision to that effect, subject only to their constitutional right of appeal to the Court of Appeals on questions of law, hereinbefore mentioned, and their right, hereinafter mentioned, to have said finding and judgment opened up for fraud, collusion or mistake.
This conclusion is supported by a consideration of the subject matter of the proceeding provided for in §10509-119, GC, as by reason of the nature of the subject matter an order affirming the allowance of a claim binding on one or more heirs must necessarily be binding as to all other heirs as their interests, insofar as the allowance is concerned, are inseparable.
The fact that persons interested in the estate who have neither availed themselves of their right to file exceptions nor otherwise voluntarily entered their appearance, have no right of appeal from the finding, order or judgment or hearing thereof of the Probate Court to the Common Pleas Court, in no wise affects the conclusiveness of the judgment as to them as they have the right under §10509-119 to file exceptions or voluntarily enter their appearance and thereby entitle themselves to appeal under the provisions of §10509-120, and the availability of the right and not its exercise is the criterion for determing the conclusiveness of the finding and order as to them, and furthermore notwithstanding their failure to avail themselves of the right to file exceptions or voluntarily enter their appearance they have, as above mentioned, the constitutional right of appeal on questions of law to the Court of Appeals.
We will turn now to the question as to what rights persons interested in the estate of a decedent who have failed to file exceptions to the schedule-of debts or voluntarily enter their appearance have to open up the finding and order of the court entered thereon.
Section 10501-17, GC, a section of the new Probate Code, provides: “The Probate Court shall have the same power as the Common Pleas Court to vacate or modify its orders or judgments.”
This section extends to the Probate Court, control of its own orders and judgments during the term at which they are rendered, which control may; be exercised, within the sphere of sound discretion, as an inherent right founded upon common law, and such jurisdiction includes equitable as well as statutory grounds. Bank v Smith, 102 Oh St 120; Abicht v O’Donnell, 52 Oh Ap 513, 6 OO 462; Seeds v Seeds, 116 Oh St 144; 23 O. J. page 1269, §1209. It also extends to the Probate Court, control of its own orders and judgments after term upon equitable grounds as well as
The order of the Probate Court entered on the hearing of the schedule of debts and the exceptions thereto, affirming allowance of the claims in controversy therefore became final, in the absence of an appeal from said order by a party thereto, as to all persons interested in said estate, subject only to the statutory right of the ex-ceptor and persons voluntarify appearing as parties in said proceeding to have the same set aside for fraud, collusion or mistake, and the rights of such persons and other persons interested in the estate to have the same vacated or modified under the provisions of §10501-17, GC, above referred to.
Assuming, but not deciding, that a finding and order of the Probate Court affirming the allowance of claims by an administrator may be attacked for fraud, collusion, or mistake, on exceptions to an account of the administrator, there is in the instant case no charge and no evidence of fraud, collusion or mistake as to said finding and order, and consequently the same are final and binding as to all persons interested in the estate, including those who have excepted to said account.
As the finding and order of the Probate Court allowing the claims in question are conclusive on the administrator and all persons interested in the estate, for the reasons above mentioned it became the duty of the administrator to pay the same and the matter or manner of payment by the administrator is not the subject of exceptions to his account by heirs of the decedent.
With these matters in mind ws will now consider the assignments of error that the judgment of the Common Pleas Court is contrary to law in that it is not sustained by any evidence and the judgment of the court is against the weight of the evidence.
The evidence and record in the case conclusively show that the Probate Court on the hearing of the schedule of debts and exceptions thereto affirmed the allowance of the claims to which the exceptions to the account are directed, and that no appeal was perfected from said finding and order which thereby became final and binding and established the validity of the claims for payment as to the exceptor and all other persons interested in the estate, as above mentioned. As the exceptions did not lie to the matter or manner of payment this evidence is sufficient to support the finding and judgment of the Common Pleas Court, and the same is not contrary to law by reason of not being supported by any evidence nor against the weight of the evidence.
Finding no error in any particular assigned and argued in the briefs, the judgment will be affirmed at costs of appellants.