Cleveland Trust Co. v. Clancy

DISSENTING OPINION

By HURD, J,

(Dissenting)

In view of the peculiar state of the record in this case and the unusual facts and circumstances surrounding it, I am unable to concur in the majority opinion of this court and the judgment of reversal of the Probate Court. In my opinion, the judgment of Probate Court should be affirmed for two principal reasons which are basic as follows:

(1) A determination of the issue on appeal necessarily involves a consideration of the weight of the evidence, and there is no bill of exceptions by which evidence may be weighed and prejudicial and reversible error demonstrated and

(2) because there is no error manifest on the face of the record.

The issues herein were joined in the trial court by an appeal to the Probate Court from the award of the appraisers by invoking the provisions of §10509-77 GC which reads as follows:

“On petition of the widow or other person interested, the Probate Court may review the allowance made to the widow or children and increase the allowance or diminish it, and make such order in the premises as it deems right.” (Emphasis ours.)

Trial was had on the issues joined and the court “having heard the testimony and arguments of counsel and being fully advised in the premises” found the allowance made by the appraisers for the support of the widow for twelve months to be insufficient and ordered and increased the amount therefor as' appears by its journal entry as follows:

“On this 26th day of August, 1949, this cause came on to be heard on the petition of Anna Clancy, executrix of the estate of Mary J. Croke, deceased, widow of Thomas E. Croke, for an order of the Court increasing the widow’s allowance for .a year’s support; and the Court having heard the testimony and arguments of counsel and being fully advised in the premises finds that all parties having interest in this cause have been duly notified of the filing of the petition as required by law, and the Court further finds that the allowance made by the appraisers of said estate for the support of the widow for twelve months from the death of said decedent in the sum of $750.00 (Seven Hundred and Fifty Dollars) is insufficient and that the same should be increased.

It is therefore ordered that said allowance as fixed by the appraisers be and it is hereby vacated and set aside; and the Court finds that the sum of $5,000.00 (Five Thousand Dollars) is a proper amount under the circumstances in this case for the year’s allowance granted to a widow by §10509-74 GC, which amount the executor of the estate of Thomas E. Croke is ordered to pay to the executrix of the estate of Mary J. Croke, according to law, instead of the amount allowed by said appraisers. (Emphasis ours.)

The face of the record shows that a bill of exceptions was filed by appellant. On motion this bill of exceptions was stricken from the record by the unanimous action of this •court because it was not timely filed in the trial court pursuant to §11564 GC. The appellant then proceeded with this appeal claiming error demonstrable on the face of the record.

In my opinion, in the absence of a bill of exceptions, this court cannot conclude that the judgment of the trial court is contrary to the manifest weight of the evidence, nor can we determine that there was an abuse of discretion on the part of the trial judge.

On the record now before us we are unable to determine what evidentiary facts were considered by the trial court in finding that the allowance made by the appraisers for the support of the widow for twelve months was insufficient and the finding and order that an increased sum was proper and should be allowed under the circumstances of this case.

The majority, however, undertake to conclude from the face of the record why the appraisers fixed a certain amount for the widow’s year’s allowance and why the Probate Court increased that amount under the provisions of §10509-77 GC.

Inasmuch as the judgment of the Probate Court under authority of the statute supersedes that of the appraisers the question of how or why the appraisers arrived at an amount for the widow’s allowance is irrelevant and immaterial. Inasmuch as this court cannot read into the record something that does not appear on its face, we are unable to determine why the probate court upon evidence arrived at the increased amount. Certainly we cannot do so by reason of any judicial knowledge of the facts possessed by us. Therefore, any such conclusions on our part must be speculative and merely arguendo from assumed premises.

The provisions of §10509-77 GC are such that broad discretionary jurisdiction is vested in the Probate Court to determine ultimately the amount of the year’s allowance to be set off and allowed to the widow under the provisions of §10509-74 GC.

There can be no doubt of the jurisdiction of the probate court upon review to increase or diminish the allowance made by the appraisers under §10509-77 GC, the wording of which is plain and unambiguous. Furthermore, its validity is not under attack in this proceeding. Consequently a reversal of the judgment predicated upon claimed error appearing on the face of the record has the effect of nullifying the provisions of the statute by placing the judgment of the appraisers above that of the court in contravention of the exclusive jurisdiction of the probate court as fixed by the statute.

The award of the probate court upon review is final and conclusive, having the force and effect of an adjudication. In the absence of a bill of exceptions showing the basis of the adjudication, this court is without jurisdiction to reverse or modify.

Decided May 15, 1950.

For the reasons stated it is my conclusion that we do not have this case before us on this appeal for decision on the merits. Therefore, while I dissent from the judgment and opinion of the majority I see no point in entering into a discussion of issues which, according to my view, are not before us for determination. I conclude, therefore, that the judgment of the probate court should be affirmed.