
    KEITH v ESTATE OF CALAHAN
    Ohio Appeals, 1st Dist., Hamilton, Co.
    No. 6086.
    Decided April 6th, 1942.
    Frank J. McErlane, Cincinnati, and Clifford C. McGary, Cincinnati, for appellant.
    Harry Marble, Cincinnati, and Edward R. Dorr, Cincinnati, for appellee.
   OPINION

BY THE COURT:

The motion to strike the bill of exceptions from the files is overruled on the authority of State v Wirick, 81 Oh St 343, and Krall v Close, 82 Oh St 190.

This is an appeal from an order of the Probate Court of Hamilton county overruling a motion for the appointment of appraisers for partnership assets.

The appellant claimed to be the surviving partner of the decedent in an undertaking business. The administrator denied the existence of any partnership.

A reading of the bill of exceptions discloses that the only evidence of a partnership is the testimony of witnesses that the decedent many years before his death made the general statement that the appellant was his partner in the purchase of this business. There was no evidence as to the terms of the partnership agreement.

On the other hand there was evidence that the appellant loaned some money to the decedent to enable him to buy the business, and that the relation of debtor and creditor existed between them.

The Probate Court found that no partnership existed and overruled the motion.

On this state of the record this court would not be justified in substituting its judgment for that of the Probate Court. We cannot say that the finding is manifestly against the weight of the evidence. The judgment is affirmed.

MATTHEWS, PJ., ROSS & HAMILTON, JJ., concur.  