
    Morehead v. The Central Trust Co., Exr. and Trustee, et al.
    (Decided November 12, 1935.)
    
      
      Mr. George W. Hawlce, for plaintiff in error.
    
      Mr. William J. Riellg, for defendant in error The Central Trust Company. -
   Matthews, J.

The Central Trust Company, as executor and trustee under the will of Bingaman H. Morehead, filed an action in the Court of Common Pleas of Hamilton county against Charlotte-Morehead and others, beneficiaries under the will, and The St. Leger Corporation, asking the judgment and direction of the court respecting its rights, powers and duties in relation to the trust created by the terms of the will; and, particularly, whether it was empowered to convey the fee simple title to certain real estate that it had contracted to convey, conditioned upon the court’s direction.

Charlotte Morehead filed an answer and cross-petition alleging maladministration of the trust in many respects, and the improvidence of the contract to convey, and praying that the trustee be enjoined from selling the property for any amount less than its true value; and, further, that the sale be set aside.

The Central Trust Company demurred to certain parts of the answer, on the ground that they were insufficient in law, and demurred to the cross-petition on the ground that the court had no jurisdiction of the subject-matter and that the cross-petition did not state a cause of action.

The court overruled the demurrer to the answer and sustained the demurrer to the cross-petition, and dismissed the cross-petition at the cost of Charlotte More-head.

Charlotte Morehead prosecutes error from these rulings of the court.

The Central Trust Company has moved to dismiss the proceedings in error on the ground that no final order was made by the Court of Common Pleas.

We find that the court on sustaining the demurrer to the cross-petition did not limit its action to adjudging the costs on the demurrer against Charlotte More-head, hut went further and dismissed the cross-petition at her costs. As we construe this it means that the court ruled that whatever cause of action was alleged in the cross-petition was beyond the jurisdiction of the court, or that no cause of action was alleged, or that the cross-petition was defective in both respects, and, therefore, that Charlotte Morehead was entitled to no relief in this action. No matter what the basis of the court’s action was, it effectually determined the action on the cross-petition and prevented a judgment thereon. Such is a final order under Section 12258, G-eneral Code. The motion to dismiss this proceeding in error is therefore overruled.

Now, does the cross-petition state a cause of action within the jurisdiction of the Common Pleas Court?

It is urged that the petition is defective, and that the demurrer to the cross-petition searches the record and discloses that defect. Assuming that in a proper case a demurrer does search the record, that could not have the effect of strengthening insufficient allegations of a cross-petition. Even though a search of the record should disclose that The Central Trust Company was not entitled to the judgment and direction of the court in the administration of the trust, that would have no relation whatever to, the question whether Charlotte Morehead was entitled to an injunction restraining The Central Trust Company from selling property for less than its real value, and for a judgment setting aside a sale. If the demurrer to the cross-petition raised the question of the sufficiency of the petition, we would answer that the allegations of the petition state a cause of action.

The question is whether the court was right in sustaining the demurrer to the cross-petition, and that depends on whether the cross-petition states a cause of action within the jurisdiction of the court. A reading and analyzing of the allegations of the rather lengthy cross-petition disclose that it does contain charges of mismanagement of the trust estate, and evinces an intention on the part of the trustee to lease and sell' the real estate referred to in the petition at a price far below its real value. A trustee can always be called at the suit of the cestui que trust to account for his administration of . the trust. We, therefore, conclude that giving the allegations of the cross-petition a reasonable construction, most favorable to the pleader, it does state a cause of action cognizable in some court in a proper proceeding.

The remaining question is whether this is the proper forum and proceeding. It appears that The Central Trust Company was named executor and trustee under the last will of Bingaman H. Morehead, and was duly appointed to execute the trusts by the Probate Court of Hamilton county, and that it was and is engaged in administering the trusts under the orders of the court. That the Probate Court had jurisdiction over testamentary trusts prior to passage of the “Probate Code,” effective January 1, 1932, is clear. Fidelity & Deposit Co. v. Wolfe, 100 Ohio St., 332, 126 N. E., 414. By. Section 10501-53, General Code, a part of the Probate Code of January 1, 1932, the Probate Court is given jurisdiction “To appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts * * *.” There can, therefore, be no possible doubt about the jurisdiction of the Probate Court over testamentary trustees at the present time. This jurisdietipn having been invoked in this case, does it exclude other courts from assuming jurisdiction? On general principles of comity, the authority of a court of competent jurisdiction that first assumes jurisdiction of a subject-matter “continues # * * until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty to interfere with its action.” 7 Ruling Case Law, 1067. In the absence then of any statutory declaration on the subject, and assuming that the Court of Common Pleas is a court of competent jurisdiction for this purpose, we would still hold that the Court of Common Pleas did not have jurisdiction to grant the cross-petitioner the relief for which she prays in this case, the Probate Court having previously acquired jurisdiction which it had not surrendered. However, there is a statutory declaration that is controlling. In Section 10501-53, General Code, which confers jurisdiction upon the Probate Court over testamentary trustees, etc., it is enacted that “Such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law.” We know of no contrary provision.

We, therefore, hold that the court did not err in sustaining the demurrer and dismissing the cross-petition.

Judgment affirmed.

Ross, P. J., and Hamilton, J., concur.  