
    Skehan v. Larkin.
    (Decided May 19, 1930.)
    
      Mr. M. B. McCarthy and Mr. George N. Fell, for plaintiff in error.
    
      Messrs. Powell $ Starritt, for defendant in erpor.
   Williams, J.

Anna Larkin died testate January 13, 1929, survived by her brothers and sisters, John Larkin, Mary Larkin Strain, James Larkin and Elizabeth Larkin Skehan. By decedent’s will Elizabeth Larkin Skehan, the plaintiff in error, was named executrix. Decedent, more than a year prior to her death, made alleged gifts of personal property, consisting of deposits in banks and bonds of a considerable amount, to her sister Elizabeth Larkin Skehan, who took possession of such property and treated it as her own until the death of her said sister. The alleged gifts were evidenced by assignments and transfers made in writing and signed by said decedent. Shortly after testatrix’s death, John Larkin began a proceeding in the court of common pleas of this county claiming that at the time the alleged gifts were made the decedent was of unsound mind and incapable of making a gift by reason thereof, and that Elizabeth Larkin Skehan had obtained possession of the personal property by undue influence, and had appropriated it to her own use.

Upon trial of the cause in the court below the judge treated the cause as a summary proceeding to reach assets of an estate which had been conveyed away under the provisions of Section 10673, General Code. The jury returned a verdict in favor of the plaintiff finding the defendant, Elizabeth Larkin Skehan, guilty of having received, appropriated, converted to her own use, and conveyed away certain moneys, stock, bank deposits and bonds, all of the personal property of Anna Larkin, deceased, and found and declared the amount to be recovered on account thereof to be the sum of $10,000. The court entered judgment on the verdict in favor of the state of Ohio for the sum of $10,000, plus 10 per cent, penalty under and by virtue of Section 10678, General Code, amounting in all to $11,000.

In this proceeding in error many grounds of reversal are urged, and among them the claim is made that the property received was not assets of the estate, and, if so, that no assets of the estate of decedent were concealed, embezzled, or conveyed away by plaintiff in error. That contention is well founded. The personal property claimed to have passed by way of gift was not, under the circumstances in the case, assets of the decedent’s estate. There only passed to the personal representative of the decedent a right of action to set aside the alleged transfers or gifts and recover the property, or the value thereof, and in such an action the real party in interest would he the personal representative of the decedent.

In the case of Losee, Admr., v. Krieger, Admr., 22 Ohio App., 395, 153 N. E., 857, this court held that the petition stated a good cause of action not only under Section 10673, General Code, but also under the Code of Civil Procedure. It will be observed, however, that in that case the action was brought by the administrator of the decedent’s estate in his representative capacity. In the instant case the action is brought by John Larkin, a brother and legatee, individually, and he cannot maintain the cause of action under the Code for the reason that he is not the real party in interest.

This court does not pass upon the question whether or not the summary remedy under Section 10673, General Code, may be maintained by one who has an interest in the estate of a deceased insane person, against another who wrongfully conceals or conveys away decedent’s personal property immediately before her death, and in anticipation thereof. This court is of the opinion that that question is not presented by the record in the instant case.

As the plaintiff below could not maintain the summary remedy under Section 10673, General Code, and was not the real party in interest in an action under the Code of Civil Procedure, the judgment must be reversed and final judgment entered in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Lloyd and Richards, JJ., concur.  