
    PROBATE COURTS — EXECUTORS AND TRUSTEES.
    [Lucas Circuit Court,
    January Term, 1901.]
    Haynes, Parker and Hull, JJ.
    Stafford, Exr., Etc. v. American Missionary Association et al.
    1. Exclusive Jurisdiction of Probate Court.
    Section 524, Rev. Stat., giving the probate court exclusive jurisdiction to grant - and revoke letters testamentary and of administration, confers exclusive and final jurisdiction upon the probate court as to such matters, in the strict sense of the term and not simply exclusive original jurisdiction. No other court, therefore, has jurisdiction therein, either original or by appeal or in error.
    g. Removal of Trustee not Subject to Review.
    Authority is vested in the probate court under Sec. 6334, Rev. Stat., to proceed upon its own motion to remove a trustee for neglect of duty, incompetency or fraudulent conduct, or because the interest of the trust property requires his removal, just as complete and exclusive and as free from restriction as is conferred by Sec. 6017, Rev. Stat., to remove an executor. Therefore, an order oi the probate court removing an executor and trustee under a will, upon the court’s own motion, as an unsuitable person to administer the trust, is within the discretion of the court and cannot be reviewed on error under Sec. 6708, Rev. Stat.
    8. Rule Applied — Removal of Trustee.
    Where an executor and trustee, in an examination upon an application for hia removal, was asked by counsel for complainants to produce a certain lettei which he had written in reference either to his administration of the affairs of the estate or to the action of the court upon some matters pertaining to the estate, and he declined to do so, on the ground that it was a privileged communication, and upon being ordered by the court to produce the letter, and upon his still refusing, the court announced that he did not care to hear further evidence, but would remove such executor and trustee, the order so made was upon the court’s own motion, in the interests of the estate, and within his discretion and is not subject to review.
    4. Order, a Nullity as to Property Held Independently.
    An order of the probate court removing a trustee and requiring him to convey to his successor property without the state, vested in him by the will independently of his letters as executor and trustee, is a nullity and entirelj ineffectual, so far as the conveyance of the property is concerned and cannot be prejudicial further than to cast a cloud over the title of the trustee.
    Heard on Error.
    
      Charles G. Wilson and E. F. Bacon. for plaintifl in error, cited:
    The general rule is that it is not sufficient to charge mismanagement, misapplication of funds or maladministration in general terms, but the facts must be stated which constitute the alleged cause for removal. 1 Woeruer Am. haw Adm. 272; White v. Spaulding, 50 Mich. 22; Fox v. Keister, 9 Dec. 816 (6 N. P. 327).
    Section 5241 provides as follows: “The following persons shall not testily in certain respects: (1) Ah attorney, concerning a communication made to him by his client in that relation,” etc.
    The general rule ot jurisprudence is, that where an attorney is employed by a client professionally, to transact professional business, all the communications that pass between the client and the attorney in the course and for the purpose ot that business are privileged communications, and that the privilege is the privilege of the client and not ol the attorney. Duttenhofer v. State, 34 Ohio St. 91 [36 Am. Rep. 362],
    The privilege applies to the communication; and it is immaterial whether the client is or is not a party to the action in which the question arises, or whether the disclosure is sought from the client or his legal adviser. Wharton on Ev.,Sec. 588; Stephens on Ev.,Art. 115; Herring v. Globery, 1 Phil. 91; Pearse v. Pearse, 1 DeGex & Srnale, 25.
    From the very necessities of the case the client must be the sole judge of the character ot the communication sought to be reached. For, to require him to divulge it in order that it might be seen whether or not it came within the rule, would be to destroy the rule itself.
    As to the claim that the order of the probate court for the removal of an executor and trustee is not reviewable, on the authority of Monger v. Jeffries, 62 Ohio St. 149 [56 N. E. Rep. 654].
    The power to remove an executor is given to the probate court by Sec. 6017. The power to remove a trustee is given by Sec. 6334. As to the question of the removal of a testamentary trustee, Stafford was appointed trustee by the will of Maoel Crawford. All her real and personal estate was willed to him in lee simple as such trustee, and he was authorized to sell, make deeds, etc., and was not required to give bond.
    The power of removal granted by Sec. 6334, Rev. Staf, is far different from that granted by Sec. 6017, under which the case of Monger v. Jeffries was decided. The Supreme Court in Monger v. Jeffries based its decision as far as the statute is concerned, on these words alone, contained in Sec. 6017s ‘‘The probate court may at any time remove any executor or administrator for * * * or any other cause which in the opinion of the court renders it for the interest ot the estate that such executor or administrator be removed.”
    The decision of Monger v. Jeffries, is, at most, based' upon two reasons: (1) That section 6017 vests a discretionary power in the probate court, the exercise of which will not be reviewed on error. (2) That the order removing an executor or administrator does not affect property rights.
    The first of these reasons does not apply to Sec. 6834. The second of these reasons does not apply to the facts of this case.
    Section 6017 provides that the probate court may remove “for any cause which in the opinion ot the court renders it for the interest of the estate,” etc. Section 6834 provides that the probate court “shall remove because the interest of the estate requires such removal.” This is a question of fact, which is issuable and which is to be tried as any other question of fact, and decided upon evidence and upon the application oí established rules oi law. The first reason upon which Monger v. Jeffries, supra, was decided, therefore, does not apply.
    Sy discretion, when applied io a court of justice, is meant sound discretion guided by law. It must be governed by rule, not by humor; it must be not arbitrary, vague or fanciiul, but legal and regular. Rord Mansfield in Rex v. Wilkes, 4 Burr. 2539.
    While the exercise of a discretion is not ordinarily reviewable on error, nevertheless, when it is apparent irom the record that the court in the exercise of its discretionary power acts arbitrarily and in violation of an established principle or rule of law, such action is reviewable. Fowble v. Rayberg, 4 Ohio, 45, 61, b2; Gandolfo v. State, 11 Ohio St. 114, 118.
    When the exercise of such discretion -is arbitrary, tyrannical and oppressive, the same may be reviewed on error. Also when the exercise ol such discretion is manifestly and grossly erroneous, error will lie. Hurley v. State, 6 Ohio 399, 400, 405.
    The probate court fias no exclusive jurisdiction in all probate and testamentary matters. The júrisdiction conferred by Sec. 8, Art. 4 ot the constitution is not exclusive. Hagany v. Cohnen, 29 Ohio St. 82. This question again came beiore the Supreme Court instate v. Archibald, 52 Ohio St. 1, in the consideration of the act oi May 21, 1894, establishing a court ot insolvency, 91 O. R. 844, holding that this act was not in violation of Sec. 8, Art. 4 of the constitution.
    The cases of Gregory, In re, 19 Ohio St.'357, and Mosier v. Harmon, 29 Ohio St. 220, are discussed and disposed of, as authorities on this subject, in Missionary Society v. Ely, 56 Ohio St. 405-410 [47 N. E. Rep. 537]. The claim' of exclusive jurisdiction then, must be based entirely upon Sec. 524, Rev. Stat., which provides: “The probate court shall have exclusive jurisdiction, except, as hereinafter provided. * * * Second, to grant and revoke letters testamentary and of administration,” etc.
    Section 6708, Rev. Stat., provides: “A judgment rendered or final order made by a probate court * * * may be reversed, vacated or modified by the court of common pleas.” There is no limitation to the scope of this section, and the case at brr comes both within the letter : nd spirit of the act. For here there is both a'final order and a judgment. Baker v. Rehman, Wright, 522; Teatt v. Hewitt,-1 Ohio St. 511 [59 Am. Dec. 634]; Evans v. Dunn, 26 Ohio St. 439.
    
      Rhoades & Rhoades, for deiendants in error.
   Parker, J.

In this matter a proceeding in error is brought by William R. Stafford, executor and trustee, as plaintiff in error, against the American Missionary Association, a corporation of New York, and the American Board oi Commissioners of Foreign Missions, a corporation ot Massachusetts, to obtain the renewal of an order and judgment of the probate court, removing Mr. Stallord as executor and trustee, and a judgment ot the court of common pleas, in a proceeding in error based thereon, which court declined to disturb this judgment and order of the probate court.

It appears upon the record submitted that Mabel Crawford, deceased, late a resident of the city of Toledo, died testate, in this county, and that on May 22, 1891, her last will and testament was admitted to probate in the probate court of Rucas county, Ohio, and on the same day, “On proper application and showing made to the court, letters testamentary, on said estate, were granted to Clay Craw lord and William R. Stafford, executors named in the will of said decedent, without bond as in said will provided,” and appraisers ot the estate were appointed.

The record discloses that in pursuance of that appointment these executors and trustees made various reports to that court and considerable business was there transacted, and, some time in the year 1900, in consequence of their dissatisfaction with his administration of the estate, these defendants in error filed a motion in that court, asking for the removal ot William R. Stafford, as executor and trustee, on the ground that he had refused to file accounts of his doings as executor and trustee, as required by the law ot Ohio and an order of that court, and that because of his malieasance in said office he was not a fit and suitable person to be entrusted with the management ot said estate. The matter came on to be heard in the probate court, Mr. Stafford resisting the application, and a motion was submitted on his behalf by his attorney asking that the complaint be made more specific, definite and certain in that it set forth wherein he had been delinquent. That motion was overruled and the conclusion of the court in overruling the motion is spoken of here and assigned as one of the errors committed by the court.

Then the matter came on to be heard upon the application, and some evidence was taken. Stafford was sworn as a witness and cross-examined on behalf ot the complainant. In the course ot this examination it came out that he had written a letter to one of his counsel in reference to either his administration of the affairs ot the estate or the action of the court upon some matters pertaining to the estate, and he was asked by counsel tor the complainants, who were examining him, to produce that letter, and he declined to do so, on the ground that it was a privileged communication. The court ordered him to produce the letter, and upon his still refusing, the court announced that it did not care to hear any turther evidence in the case, but that it would remove Mr. Stafford, and an order was. accordingly entered removing him and providing for some other matters, and that is complained ot here.

It said that the court proceeded arbitrarily, without satisfactory evidence, and improperly, in that it was punishing this man for standing upon his right to not disclose or produce a privileged communication. The journal entry, in part, reads as follows:

“After hearing partially said application and motion and the evidence, and upon refusal ot said William R. Stafford to comply with the order of the court to produce in evidence a letter written by said executor to his counsel, in relation to the subject matter under consideration, and which communication said counsel claimed to be privileged, the court finds that said William R. Stafford, as such executor and trustee, is guilty ot gross neglect ot duty in his administration ot said estate; that he has not administered the same to the best interest of said estate, and that by reason thereof and his refusal to disclose to the court his full action as such executor, as shown by letters written by him in the course of such administration of said estate, he, the said William R. Stafford, is an unsuitable person to administer said trust.
“It is therefore ordered and adjudged by the court that the said William R. Stafford be, and he hereby is, removed from said office of executor and trustee ot the estate, and that the letters heretofore issued to him by this court as executor ot said Mabel Crawford, deceased, be, and the same are hereby, wholly revoked and set aside.”

It appears from the will, which is a part oí the record here, that Stafford had been nominated as one of the executors and trustees, and it is contended that the title to certain real estate lying in the state of Michigan, is, by force and virtue of that will vested in him as trustee, and that this results independently of the action of the court in proceeding to issue to him letters testamentary in pursuance of his nomination in the will. The court, after what I have just read, proceeds further to order that he shall render an account as executor and trustee of his conduct of the aflairs of the estate; that he shall turn over all books, papers and property to Clay Crawtord, who is the other executor and trustee, and that he shall also execute and deliver to Clay Crawtord, as such executor and trustee, a deed or deeds of these lands in the state of Michigan fand I believe, some lands elsewhere or some mining interests), conveying this property to Clay Crawford as executor; and with respect to this part of the order, it is urged that if the court had the power to remove said Staflord as trustee, it had no power or authority to require him to divest himself of the title to property which he derived through the will and to convey it to Clay Crawford.

On the other hand, it is contended by the delendants in error that under the statute the probate court is given such exclusive and final jurisdiction in the matter of removing executors and trustees, as amounts to full discretionary authority and power in the premises, and that this is not subject to review in any other court, and that since the probate court has found, as set forth in the journal entry, that the trustee has been guilty of gross neglect ot duty in the administration of said estate, and that he has not administered the same to the best interests of said estate, and that by reason thereof, as well as by his relusal to disclose, the letter, he is an unsuitable person to administer said trust, that even though the court’s action might not have been justifiable if based entirely upon the declination to submit the letter to the inspection of the court, or to produce it, it cannot be questioned in another court by a proceeding brought to obtain a review and reversal, since the court had this full discretionary power and authority.

The constitution of this state, prior to 1851, by its terms, conferred upon the probate court exclusive jurisdiction ot all probate' matters, but it has been held under the constitution of 1851, that jurisdiction over probate matters may be conferred upon other courts as well, so that to determine now whether or not the jurisdiction is exclusive, as contended by counsel for defendants in error, we must consult the statutes rather than the constitution.

Section 524, Rev. Stat. provides:

‘‘The probate court shall have exclusive jurisdiction, except as hereinafter provided: * * * to grant and revoke letters testamentary and ot administration.”

It is contended on behalf of the defendants in error that this means exclusive and final jurisdiction, not .simply exclusive original jurisdiction, but exclusive jurisdiction in the strict sense of the terms; that no other court shall have jurisdiction over the matter, either original or by the way ot appeal or a proceeding in error, unless other provisions therefor shall be found in the statutes; and the court of common pleas took this view of the statute, and we are of the opinion, that that is a proper interpretation of the statute.

Still, it is contended on behalf of the defendants in error that it is otherwise provided in Sec. 6334, Rev. Stat.:

“The probate court may accept the resignation of any trustee accounting therein, or who has been appointed thereby, and shall remove any such trustee, he having ten days notice thereol, for habitual drunkenness, neglect of his duties, incompetency, fraudulent conduct, or because the interests of the trust requires such removal, or upon the written application of more than one-half of the heirs, or next of kin or legatees having an interest in the estate so controlled by such trustee, but the trustee himself is not to be considered an heir, next of kin or legatee under such proceedings.”

And the section concludes with this proviso: “Provided, no trustee appointed under a will shall be removed upon such written application of said heirs, next ot kin or legatees having an interest in such trust estate, unless for good cause.”

And it is insisted that this provision that removal shall not be made unless tor good cause shown, amounts to a limitation upon the authority ot the probate court in the premises, and that unless it shall appear that there was good cause shown lor removal, the probate court has not this power to remove, or, in other words, the common pleas court, exercising jurisdiction conferred by Sec. 6708, Rev. Stat., may proceed to review, vacate or modify such judgment or final order of the probate court.

But we find in the provisions of this section what we understand to be an authority vested in the probate court, as full and as complete and as free from any restrictions, to remove a trustee for neglect ot duties or incompetency, or fraudulent conduct, or because the interest of the trust property requires his removal, as is conferred upon the probate court to remove an executor under Sec. 6017, Rev. Stat. (saying nothing about the question of what the authority ot the court might be if the record should state that it undertook to proceed distinctly and exclusively upon the complaint of an heir or legatee). It seems to us that the provision of the statute authorizes the probate court in its discretion, to proceed upon its own motion to remove a trustee just as it may remove an executor under Sec. 6017, Rev. Stat., and it is conceded by counsel for plaintiff in error that the authority of the probate court to iemove an executor under Sec. 6017, Rev. Stat., is complete and exclusive; and that if the court exercise its discretion its action in the premises cannot be questioned by an appellate proceeding in another court.

That is distinctly held in a number of cases, the last case upon the subject being that of Monger v. Jeflries, 62 Ohio St. 149 [56 N. E. Rep. 654], the syllabus there reading:

1 ‘An order of the probate court removing an executor is not the subject of review on petition in error in the court of common pleas.”

The further contention on the part of the plaintiff in error here, is, that since Mr. Stafford was not only an executor but a trustee, the authority of the probate court did not extend beyond removing him as executor; that the court was bound to allow him to retain his office as trustee.

As I have indicated, in so far as his authority rests upon the letters testamentary that were issued to him, we are of the opinion that the authority of the probate court is full and complete to remove him from his office as executor; that the jurisdiction of the court in the premises is exclusive in the sense that it is final and not subject to appeal or review on error. This view oí the matter makes it unnecessary for us to inquire whether the court erred in its order retusing to require the complainants to make their complaint more specific and definite. It also makes it unnecessary for us to inquire into another question submitted by the plaintiff in error, that is to say, whether or not one-half of the legatees joined in this complaint, which seems to be required by Sec. 6334, Rev. Stat. if the court undertakes to proceed altogether upon the complaint of legatees or heirs.

After looking carefully over this order, we think there is sufficient in it to show that the court was undertaking to exercise and did exercise its authority to act upon its own motion, in what it conceived to be the interest of the estate, in removing this trustee, and that its action in that regard is not subject to review.

As I have said, plaintiff in error also complains of the further order of the court requiring Mr. Staflord to convey this property in Michigan to the remaining executor and trustee. We have not seen fit to examine that question very closely, because we did not feel called upon to pass upon it; we do not think it necessary. If the court has exceeded its jurisdiction in undertaking to require the conveyance of property lying in another state, certainly its order, to that extent is a nullity and can eflect nothing. If Mr. Stafford, as trustee, is vested with'the title to any property in another state by virtue of a will and independently of his letters as executor and trustee, then the order of the court in so far as it undertakes to divest that title, would be a nullity and entirely ineffective, and we do not think it would be prejudicial further than that it might possibly cast a cloud over the title of the trustee. Whether he has a title that cannot be disturbed by the order of the probate court of this county, we do 'not undertake to say; we simply suggest that if he has such a title, the order of the probate court would not affect it. Finding no error in the action of the probate court or in the action of the court of common pleas in declining to disturb the order and iudgment of the probate court, the judgment of the courts below will be affirmed.  