
    Monger v. Jeffries.
    
      Probate court order removing executor — Cannot be reviewed on petition in error in common pleas court.
    
    An order of the probate court removing an executor is not the subject of review on petition in error in the court of common pleas.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Warren county.
    On the 4th day of April, 1889, the last will and testament of Christian B. Odell was admitted to probate by the probate court of Warren county, and Joseph H. Monger was appointed and qualified as executor thereof. On the 27th day of May, 1898, Thomas Jeffries, a legatee named in the will, filed a motion for the removal of Monger from his trust for reasons stated in the motion which included those stated in the entry made by the court on the 2nd day of July, 1898, when, upon a hearing, it ordered his removal for the reasons that “the said Joseph H. Monger is guilty of gross neglect of duty in the administration of said estate; that he has not administered the same to the best interests of said estate; and that said Joseph H: Monger is an unsuitable person to administer said trust.”
    A motion for a new trial was overruled and a bill of exceptions taken. Monger then filed a petition in error in the court of common pleas praying for a reversal of the order of removal upon the grounds, among others, that the probate court had no jurisdiction to make the order and that it was not sustained by sufficient evidence. Jeffries thereupon moved to dismiss the petition in error for the following reasons:
    
      First — Because no substantial right of the present plaintiff in error has been affected by the order of the probate court removing Mm from the trust.
    
      
      Second — Because the jurisdiction of the probate court in the matter of removing administrators and executors is exclusive, and error will not lie to review the action of that court, either in removing or refusing to remove which is by the statute committed to the sound discretion of the probate judge.
    This motion was sustained. On petition in error the circuit court affirmed the order of the common pleas dismissing the petition in error.
    
      Patrick Gaynor and. IF. C. Thompson, for plaintiff in error.
    The probate court can have no exclusive, final or conclusive jurisdiction, except it be so provided by the legislature. Constitution, Art. IY, Secs. 4, 8.
    The exclusive jurisdiction to issue and revoke letters, even though it be final, attaches only when not otherwise provided by the statute. Sec. 524, R. S.
    If a competent person, willing to accept the trust, is named in a will as the executor thereof, the probate court must appoint him as such. Sec. 5995, R. S.
    Certain persons, in a certain order, must be appointed to administer on the estate of a deceased person. Sec. 6005, R. S.; Todhunter v. Stewart, 39 Ohio St., 181; Cobb v. Newcomb, 19 Pick., 336.
    The statute provides the only causes for, and the only manner in which these appointments may be revoked. Revised Statutes, Secs. 5996, 6207, 6108, 6023, Yol. 87, p. 297, and 6047-6049, Yol. 91, p. 96, 6017, 6087, 6178 and 6253.
    Any judgment rendered, or final order made by the probate court, may be reversed, vacated or modified by the court of common pleas. Sec. 6708, R. S.
    An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, or such order in a special proceeding, or upon a summary action, is a final order that may be reversed, vacated or modified. Sec. 6707.
    
      Whether a right is a substantial right or not does not depend on its financial value, but on the fact of whether it is a legal right and protected by law. Railroad Company v. Sloan, 31 Ohio St., 1; Armstrong v. Brewery Co., 53 Ohio St., 467.
    The appointment carries with it the right to serve and that right cannot be taken away except for the causes and in the manner authorized by laAV, or statute. Woerner, Law of Admin., 2nd ed., Yol. 1, par. 268, top of * pages 570-571.
    This then not being merely a preliminary question, but one going to the foundation of the proceedings in error, the lower courts should have, and this court should now proceed to examine the case on its merits.
    The right to the appointment being guaranteed by the statute the right to administer the trust to the end follows, and it cannot be taken away except as provided by the statutes. Woerner, par. 268-272; A. & E. Enc. of Law, 360 and cases there cited.
    Three questions are presented by the record.
    
      First — Is the right of an executor to administer upon an estate a substantial right?
    A substantial right means a legal right, one that is protected by law. Armstrong v. Herancourt, 53 Ohio St., 405.
    
      Second — Has the common pleas court jurisdiction to review on error the action of the probate court in removing an executor?
    The jurisdiction of common pleas courts is not defined by the constitution; they are made capable of receiving any and all jurisdiction that may be provided by law. Const. 1851, Art. IY, Sec. 4; Stevens v. State, 3 Ohio St., 453; Commissioners v. Junkins, 19 Ohio St., 348.
    It is contended by counsel that the jurisdiction of the probate court in matters testamentary is exclusive and conclusive and that its action cannot be review on error, citing R. S., 524, and Gregory, Admr., 19 Ohio St., 357; Mosier v. Harman, 29 Ohio St., 220.
    But this court has denied the authority 19 Ohio St., 357, and limited the authority 29 Ohio St., 220. Society v. Ely, 56 Ohio St., 405.
    Justices have exclusive jurisdiction in certain matters, R. S., 585, and the right to review on error has never been questioned. County commissioners and township trustees have exclusive jurisdiction in road and ditch matters. R. S., 4650, 4677, 4447 and 4511, but error has been allowed. Hoff v. Fuller, 45 Ohio St., 495; Travest v. Frenfrock, 43 Ohio St., 335; Fox v. Kiester, 6 N. P., 216; 8 Dec., 636.
    The records contains all the evidence, and there was no evidence before the probate court to warrant it in removing Monger and in such a case this court should reverse the probate court.- Wooley v. Staley, 39 Ohio St., 354.
    And we therefore present the next question.
    Was the probate court warranted in removing Monger?
    Under the will Mrs. Odell, and Monger was charged with the care and management of the whole estate during the life of Mrs. Odell and at her death, Monger was to sell all of the property and divide the proceeds, and the evidence is that they executed the trust for eight years until the death of the widow. After the death of Mrs. Odell Monger became a testamentary trustee. Veazie v. McGugin, 40 Ohio St., 365; Sowers v. Cyrenius, 39 Ohio St., 29.
    And could not be removed except upon the application of a majority of the legatees and for good cause shown. R. S., 6334, as amended' 90 O. L., 368.
    
      Brandon & Burr, and Runyan & Stanley, for defendants in error.
    1. The order, the execution of which is sought to be stayed, has actually been carried into effect. In fact, the order of removal was self-executing. The moment the order was made, and entered on the records of the probate court, the powers of ^longer to act as executor absolutely ceased. And further, on the 16th day of July, 1898, said probate court duly appointed W. Gilbert Thompson, administrator de bonis non with the will annexed of Christian B. O’Dell, deceased; who on said day duly qualified and entered upon the discharge of his duties as such administrator and has ever since been and now is, acting as such.
    2. An executor removed cannot litigate the question of his removal, because the order removing him affects no substantial right.
    
      (a) Error lies only from final judgments, decrees, or orders the determination of which affects a substantial right. Section 6707, Eevised Statutes; Knisely v. State, 3 Ohio St., 508; Holbrook v. Connelly, 6 Ohio St., 199; Hobbs v. Beckwith, 6 Ohio St., 252; Steubenville v. Patrick, 7 Ohio St., 170; Watson v. Sullivan, 5 Ohio St., 42; Braden v. Hoffman, 46 Ohio St., 639; Railway Co. v. Sloan, 31 Ohio St., 1.
    
      (b) And such order must have been prejudicial to the substantial rights of the plaintiff in error. Scoven v. The State, 6 Ohio St., 288; Baker v. Lawrence, Admr., 27 Ohio St., 418.
    (c) The order of removal affects no property or other substantial right, but merely the administration of the trust. The person so removed is but the appointee of the court, and the only interest he could have under such appointment would be the compensation he might earn in administering the trust.
    3. The probate court, under Art. IY, Sec. 8, of the Constitution of .1851, and Secs. 524 and 6017, Eevised Statutes, is vested with exclusive final jurisdiction over the appointment and removal of executors and administrators. Fraser v. Fulcher, 17 Ohio, 2,60; Gregory’s Admrs., 19 Ohio, 357; Gilliland v. Sellers’s Admr., 2 Ohio St., 223.
    
      The provisions of Art. Ill, Sec. 5 of the Const, of 1802 are substantially identical with the provisions of Art. IV, Sec. 8 of the Const, of 1851; Sec. 5, Art. Ill of the Const, of 1802.
    Therefore the doctrine of the above cases applies with full force to the decrees and orders of probate courts under the Constitution of 1851, and to the case at bar.
    (а) The history of Sec. 6017 clearly shows that the legislature of Ohio intended to grant probate courts exclusive final jurisdiction of matters purely testamentary. Sec. 23 of the act of March 23, 1840, Vol. 38, Ohio Laws, page 146.
    This act remained in force until the amendment in 1875, Vol. 72, O. L. 174. That amendment simply added to the grounds of removal.
    No further change was made in the law until the act of April 11, 1884, Vol. 81, O. L. 137.
    It appears in this legislation that most liberal and extensive authority has been granted to the probate court in these matters, and the tendency has been to enlarge the power of that court in testamentary matters rather than to restrict it.
    (б) This view receivés strong confirmation from the fact that it is the commonly accepted practice in all the courts of Ohio, that neither appeal nor error will lie from the orders of the probate court in matters purely testamentary. Estate of Still, 15 Ohio St., 484; Ebersole v. Schiller, 50 Ohio St., 701; Brigel v. Starbuck, 34 Ohio St., 280; Campbell v. Miner, 3 N. P., 138.
    4. An executor is not a testamentary trustee and has no greater rights than any other person appointed by the probate court to administer the estate of a deceased person. Matthews v. Meek, 23 Ohio St., 272; Gandalfo v. Walker, 15 Ohio St., 251.
    5. The allowance of the order asked for is wholly discretionary with this court. Bldg. Ass. v. Ins. Co., 34 Ohio St., 291; Prim v. Nicholson, 6 Ohio St., 176.
   By the Court :

It is provided in section 6017 of the Revised Statutes, that “the probate court may at any time remove any executor or administrator for * * * or any other cause which, in the opinion of such court, renders it for the interest of the estate that such executor or administrator be removed.” The conclusion reached in the common pleas and circuit courts that an order of the probate court removing an executor is not subject to review on petition in error is justified by this section of the statute, as well as by the views which this court has heretofore expressed upon the general subject. The Estate of Still, 15 Ohio St., 484; Brigel v. Starbuck, 34 Ohio St., 280; Ebersole v. Schiller, Admr., 50 Ohio St., 701.

Judgment affirmed.  