In re Smith Estate

OPINION

BY THE COURT:

Application for rehearing denied. Exceptions saved.

1. Assuming that the probate court attempted in January, 1937, one year after the resignation of Mooney, trustee of the trust estate, to make decision in an action for concealment of assets brought by applicant’s attorney in the name and on behalf of said Mooney as such trustee; and that the probate court did fail to journalize an entry submitted February 18, 1937, to dismiss the Mooney action; and that the probate court did attempt to make a judgment entry on July 1, 1937, nunc pro tunc, January 19, 1937, in the Mooney action more than one year after the resignation of Mooney as such trustee; and that said actions of the probate court unappealed from are proper subjects of attack in this proceeding; such facts would not preclude the applicant from securing the order for the payment for services performed by him in said action on behalf of and beneficial to the trust estate out of the trust estate; that such facts insofar as. they reflect on the determinative issues in the case mentioned in the opinion, re-fleet only on the weight of the evidence on the issues of the performance of the services on behalf of the trust estate by the applicant, and the reasonable value of such services; and considered in connection with.the other evidence in the case are insufficient to warrant the reversal of the final order of the probate court in directing the payment of compensation- to the applicant, on the ground that said order is against the weight of the evidence.

2. All the facts essential to the granting of the order which are mentioned in the opinion were properly alleged in the application for the order of allowance, and the demurrer thereto was properly overruled; and the probate court had jurisdiction of said application and jurisdiction to make said order. Unger v Wolfe, 134 Oh St 69; 11 OO 483.

HORNBECK, PJ., BARNES & GUERNSEY, JJ., concur.