
    Bricker v. Elliott, Administrator.
    
      Suit to compel accounting of trustee — Action appealable.
    
    A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Knox county.
    The defendant in error brought suit in the common pleas court against the defendant in error, alleging his appointment and qualification as administrator of the estate of Indiana Bricker, deceased ; that David Bricker, who was the husband of said Indiana Bricker, and the father of said Hiram, had died in 1878, leaving a will, whereby he devised to said Hiram, real and personal property of great value, but charged with an annuity of $150.00, payable to said Indiana during her life, which said defendant accepted, subject to said charge; that said David also devised to said Indiana, in lieu of dower, certain described real and personal estate for life; that said Indiana survived her said husband about eight years, but was, at the time of his death, very old, and infirm in both mind and body, and continued to be so infirm until her death; that in consequence of such, infirmity she was incapable of managing her said property, or of transacting any business whatever, and that the defendant, her son, assumed the active control and management of all her affairs, including the annuity and property so devised, and continued therein as her agent and trustee from the death of her said husband until her death, receiving in that capacity the proceeds of said annuity and said property of a policy of fire insurance belonging to her; that the plaintiff is unable to state the sums so received by said defendant as such trustee, or the amount paid out by him, or the amount of interest with which he is chargeable, and that the defendant holds and is liable to account to the plaintiff for said annuity, moneys and rents, with interest thereon. The prayer of the petition is as follows:
    “Wherefore the plaintiff prays that the defendant may be required to answer, and set forth fully the amount of rents and profits received by him as such agent and trustee, from the rent of said property as aforesaid, together with the dates and amounts when so received; also state explicitly what payments the defendant has made to the said Indiana Bricker, or on her account, out of said annuity, insurance fund, and moneys arising from said rents and profits, together with the dates and amounts thereof when so paid; and that upon a final hearing of this cause, the defendant be required by a proper decree of this court, and adjudged to account and pay over to this plaintiff all balance that may be found in his hands of said annuity, insurance fund, and moneys arising from said rents and profits, together with, interest on each annual installment of annuity when the same became due and payable; and the interest on said insurance fund, from the date of the receipt thereof, and on said moneys received from the said rents and profits from said property from the dates of the several receipts of the same; and for such other and further and different equitable relief as shall be just in the premises. ’ ’
    An answer and reply were filed, but they did not change the character of the issues tendered by the petition. In the-common pleas the ease was tried to the court. The judgment being unsatisfactory to the defendant there he appealed the cause to the circuit court, where the administrator moved to dismiss the appeal “upon the ground that the action is not one in which the defendant has the right to appeal. ”
    -The order of the circuit court sustaining the motion to dismiss is the subject of the petition in error here.
    
      John Adams, for plaintiff in error.
    
      Critchfield <& Graham and Charles H. Follett, for defendant in error.
   Shauck, J.

The administrator in this case stands upon the rights of his intestate, and the question submitted is to be determined as though she had brought the suit in her lifetime. If upon the trial of these issues in the court of common pleas either party was entitled to demand a jury, the appeal was properly dismissed; and that right existed if the action was for the recovery of money only. The adjudications of this court determine that, if the action is for that purpose only, it is triable by jury, even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine that eases are so triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures from the defendant may he desired.

Chapman v. Zee, 45 Ohio St., 356; Gunsaulus, Admr., v. Pettit, Admr., 46 Ohio St., 27.

But an action is not for the recovery of money only if it invokes the exercise of equitable jurisdiction, which, in cases of this character, must be found, if at all, in that prolific source of equitable jurisdiction — the inadequacy of legal remedies.

In the original petition the plaintiff did not allege .an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transactions out of which it arose.

The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew, and she did not. The ease was not for money only. It invoked the exercise of equitable jurisdiction to compel the trustee to render an account necessary to the ascertainment of the amount due, and for a judgment for that amount when ascertained. Pomeroy’s Eq., section 1421, and notes.

Judgment reversed.  