
    Samuel McGarry et al. v. John Smith et al
    Motion for leave to file a petition in error to reverse a judgment rendered by the District Court of Noble county.-
    
      J., being seized in fee of several tracts of land, conveyed one tract by deed of gift to Reed and Sarah, two of his children, to hold jointly in fee, the deed being delivered to Sarah in 1857. In 1858, Sarah, without the knowledge or consent of Reed, handed the deed to J., and he destroyed it; and thereupon J. executed a will devising one-half of the same tract to Sarah in fee, and the other half to Reed for life, remainder to Ann, auother sister, in fee, and making provision for his other children.
    Afterward, J. had born to him two other children — Isaac and Mary — and haviug made advancements to some of lessons, died, leaving nine children. The said will was duly admitted to probate; and thereupon Isaac and Mary prosecuted a civil action in the Court of Common Pleas, making Reed and Sarah, and all the other devisees, legatees, and heirs of J., parties defendant therein, to obtain their full and equal shares of J.’s estate. In this action, the Court of Common Pleas, amongst other things, found that J. died seized in fee of the same tract which, in 1857, he had eonvayed to Reed and Sarah; that Reed held under the will a life estate in the undivided half thereof, and that Ann owned the fee of said half, subject to said life estate. And thereupon the court made a final decree for contribution based upon that finding. This decree was rendered in 18G6.
    In 1869, Reed having, after said decree, died intestate, unmarried, and childless, and Sarah having had her half of- the land set off to her in a partition suit, Samuel, John, and others, brothers and sisters of Reed, began a civil action in the Common Pleas against Ann, claiming that Reed had, by virtue of the deed of 1857, died seized in fee of the one-half of said land, and asking for its partition between themselves and his other heirs at law. Besides other defenses, Ann, by a separate answer, pleaded the aforesaid decree of 1866 as an estoppel, averring that Reed was a party to that action, and that the judgment remained in full force and unreversed. To this answer the plaintiffs demurred, and the District Court (the cause pending there upon appeal) overruled their demurrer and dismissed their petition. They now ask leave to file a petition in error to-reverse said judgment
    
      John F. Hanna, for the motion :
    The Common Pleas had no jurisdiction of the action brought by the after-born children, under section 41 of the-act relating to wills.
    The constitution of Ohio, in section 8 of article 4, provides that “the Probate Court shall have jurisdiction in-probate and testamentary matters,” etc. Now, was this' not a matter pertaining to a testamentary disposition of John McGarry’s estate. If so, then the Probate Court had the jurisdiction of the matter. The legislature could not by law confer a jurisdiction on the Common-Pleas that, by the constitution, was conferred upon another tribunal.
    
      William C. Okey, on the same side :
    It was not necessary for the court in the action for contribution to determine of what land John McGarry died’ seized; the question in that case was only what did each devisee or legatee take under the will. Hence the decree-in that case does not estop the plaintiffs from setting up their title to the land in controversy. Lents v. Wallace, 17 Penn. 412; Lessee of Lose et al. v. Truman, 10 Ohio St. 45, and cases there cited.
    “ The law of estoppel can not be used but to subserve the cause of justice and right.” Buckingham v. Hanna, 2 Ohio St. 551. Reed McGarry was represented in that action by guardian only. Can a ward be prejudiced by a-failure of his guardian to set up a proper defense where noughts of innocent parties intervene ?
    
      D. S. Spriggs and J. S. Foreman, contra:
    1. The action pleaded as an estoppel was not “ a testamentary matter,” for the reason that the rights of the posthumous children, including their right to bring the suit,. were based upon the fact: 1. That no provision toas made for them in the will of their father; and, 2. That the statute gave them a right to bring an action to remove, as it were, the cloud which the will threw upon their title to their proper shares in the estate of their father. These posthumous heirs took nothing under the will; but took by descent under a statutory provision, in its nature supplementary to the statutes of descent and distribution.
    The statute giving to the Common Pleas jurisdiction in such actions will not be held unconstitutional unless it is clearly so.
    2. In the contribution suit, the first duty of the court was to ascertain how much would each of the posthumous children have been entitled to if there had been no will; that could only be determined by finding what was -the value of the entire estate of the testator, and no value could be fixed until it was known of xohat it consisted. Therefore it was necessary for the court, in the action for contribution, to find what estate, if any, John McGarry held at his death in the land in controversy. See secs. 41, 42, Wills Act, S. & C. 1623. We insist that the record of that suit is a complete bar. Hites v. Irvine's Adm’rs, 13 Ohio St. 283; Babcock & Co. v. John G. Camp et al., 12 Ohio St. 11; Bigelow's Ex’r v. Bigelow’s Adm’r, 4 Ohio, 138, and cases cited. 'The case in 10 Ohio St., cited by plaintiffs’ counsel is in our favor.
   By the Court.

1. Notwithstanding section 8, article 4, of the constitution of Ohio provides that the Probate Court shall have jurisdiction in probate and testamentary matters, the Court of Common Pleas of the proper county, under the existing laws, has jurisdiction of a civil action brought to determine and enforce the right to contribution given by section 41 of the wills act (S. & C. 1023) to a child born after the execution of the will of its pare lit.

2. A decree rendered in such an action necessarily determines that the lands and other property which constitute the basis of contribution were received and held by the devisees and legatees respectively under the will.

3. The decree of’ 1866 estops Reed and his heirs, as against the devisee of the remainder, from setting up title to the land in controversy under the deed of gift of the testator made before his will.

Leave to fie petition in error refused.  