
    MURNAN, ESTATE OF, In Re
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3329.
    Decided April 23, 1941
    
      J. Paul McNamara, Columbus, Special Counsel for the Estate of Grace D. Murnan, deceased, and for the motion.
    Gugle & Gugle, Columbus, counsel for appellant, and contra the motion.
   OPINION

BY THE. COURT:

Submitted on motion of the executor to affirm the judgment appealed from, for the reason that no bill of exceptions has been filed in the Probate Court, and the time for filing a bill of exceptions has expired.

In so far as the judgment appealed from is predicated upon the consideration and weighing of testimony, it may not be challenged without a bill of exceptions.

However, it is urged by the appellant that certain of the assignments of error, and possibly all of them, are predicated entirely upon considerations of law which may be ex-> emplified upon the record, which is properly before us, and without testimony which could be brought to the attention- of the court by a bill of exceptions only.

We cannot say upon a consideration of the motion only that no one of the errors assigned may not be exemplified by the record, which is properly in this court on the appeal. In this situation it is only safe procedure to consider the appeal on the merits after all briefs are in, and if it appear that no assignment of error is properly presented, or can not be determined upon the record as presented, it may then be so determined.

The motion will be overruled.

Counsel for the appellant in the brief opposing the motion to affirm suggests that the appellees have filed no briefs on' the merits, although the time within which they should be filed, under rule' has elapsed. This suggestion will be disregarded, inasmuch as the motion which we now consider had been interposed.

Counsel will, now that" the motion has been determined, prepare the briefs promptly, as within the rule, assuming that the date of the entry journalizing the order on this motion is the date when the appellant’s original brief is filed.

GEIGER, PJ., BARNES & HORNBECK, concur. ' ’  