
    THOROMAN, Estate of, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 1784
    Decided September 2, 1943.
    Iddings, Jeffrey & Weisman, Dayton, for executrix.
    Joseph W. Sharts, Dayton, for appellant.
   OPINION

By THE COURT:

The above entitled cause is now being determined on motion of executrix to dismiss the appeal on question of law and fact for the reason that this court does not have jurisdiction to try such an appeal.

The controversy arose in the Probate Court on the widow’s amended exceptions to the executor’s account.

Upon hearing, the exceptions were overruled in part and sustained as to one exception.

Within due time the widow filed notice of appeal on questions of law and fact.

We have no difficulty in determining that the appeal may not be heard de novo, since our court does not have jurisdiction to so hear except in chancery cases.

The courts in this state have definitely determined that exception to a fiduciary’s account is a statutory proceeding and hence not appealable de novo.

In re Gurnea, 111 Oh St, 715; In re Arrasmith, 54 Oh Ap, 391; In re Beach, 16 Abs, 655.

Counsel for appellant argues that the case really involves a construction of the will, and is therefore a chancery proceeding. We can not so hold, since any necessary reference to the will would be purely incidental.

Following our practice, we determine that the case may not be heard as an appeal on law and fact and will hold the case for determination as an appeal on questions of law. Thirty days will be given for the preparation and allowance of a. bill of exceptions.

We find that appellant has proceeded as though the appeal was upon law, that is a bill of exceptions has been filed, also assignments of error and briefs. Under the form of appeal this was irregular. If counsel for executrix will agree, the entry may contain the provision that the bill of exceptions may be accepted without refiling. If such an agreement is not obtained, then the same should be refiled as should the assignments of error and the briefs. The refiling should follow the filing of the entry as authorized under this opinion.

Entry may be prepared in accordance with this opinion.

BARNES, PJ, HORNBECK and GEIGER, JJ, concur.  