
    The State, ex rel. Barbee, Executor, v. Allen, Probate Judge, et al.
    
      Power of probate court—To determine where will entitled to probate— Finding as to residence of testator — Judgment of court admitting will to probate — Though erroneous in law and fact — Cannot be reviewed by superior court — In prohibition proceedings.
    
    1. The probate court, vested by the constitution with jurisdiction in probate and testamentary matters and recognized as competent to decide on its own jurisdiction, has power to determine whether a will is entitled to probate and whether letters testamentary thereon shall issue.
    2. When, upon the hearing of an application for the probate of a will and for letters testamentary, the probate court finds that the testator at the time of his death was a resident of the county in which the application is made, an order or judgment of the court admitting the will to probate and issuing letters testamentary thereon, however erroneous the conclusions of law and fact upon which the judgment or order is based may be, cannot be reviewed or. set aside by a superior court in a proceeding in prohibition.
    (No. 15444
    Decided March 6, 1917.)
    In Prohibition.
    The relator is invoking the original jurisdiction of this court in prohibition. The matter is submitted upon a demurrer to the answer.
    On May 21, 1915, in a proceeding in the probate court of Franklin county, Ohio, John B. McLean was found to be a resident of that county and adjudged an imbecile and incapable of taking care of his property, and one Charles G. Saffin, Jr., was appointed guardian of his person and property and continued to be and act as such guardian until the death of McLean, which occurred May 26, 1916. It is alleged in the petition filed in this court that on January 12, 1916, without the consent or permission of his guardian, John B. McLean was removed to Fayette county, Ohio, by Mary F. McLean, his wife. The removal of McLean to Fayette county is admitted in the answer; it is denied, however, that such removal was without the consent or permission of the guardian, but it is averred, on the contrary, that the guardian consented to such removal, paid the necessary expenses thereof, and paid also the expenses of McLean while living in Fayette county, where he continued to live until his death.
    On May 27, 1916, a paper writing dated December 29, 1915, alleged in the answer to be the last will and testament of John B. McLean, and devising and bequeathing real and personal property situate in Fayette county, was offered for probate in the probate court of that county. On May 29, 1916, as required by law, notice of the application to probate said alleged will was served upon the widow and next of kin of the testator. A son and daughter of the decedent objected in writing to the jurisdiction of the probate court of Fayette county to entertain the application to probate said paper writing, upon the ground that John B. McLean was not at the time of his death a resident of Fayette county, but was a resident of Franklin county, Ohio. The objection was overruled, and on June 30, 1916, the instrument was admitted to probate as the last will and testament of John B. McLean, deceased. On the same day, R. G. Allen, the then probate judge of Fayette county, over the objection of the son and daughter of the testator, appointed the defendant Daniel McLean executor under said alleged will, and on July 31, 1916, letters testamentary were issued to said Daniel McLean. In error proceedings in the court of common pleas of Fayette county the order of the probate judge of Fayette county in admitting said alleged will to probate, and the order appointing Daniel McLean executor, were affirmed. It is admitted that error proceedings are now pending in the court of appeals of Fayette county to review the judgment of the court of common pleas.
    On May 31, 1916, a paper writing dated July 24, 1914, alleged in the petition to be the last will and testament of said John R. McLean, and devising real estate situate in Franklin county, was offered for probate in the probate court of Franklin county, and was admitted to probate July 31, 1916, over the written objections of Mary McLean, the widow, who challenged the jurisdiction of the probate court of Franklin county on the ground that a will of later date had been filed in the probate court of Fayette county, application made for the probate thereof, and notice served on the widow and next of kin as required by law, prior to the filing of said alleged will in the probate court of Franklin county. Letters testamentary were issued to the relator by the probate court of Franklin county on August 3, 1916, and he qualified as such executor. The said Mary F. McLean, widow, filed a petition in error in the court of common pleas of Franklin county to review the order and judgment of the probate court of Franklin county admitting said alleged will to probate, and said matter has been submitted to said court of common pleas.
    It is alleged in the petition for writ of prohibition that by reason of the illegal and unauthorized acts of Rell G. Allen, former probate judge, in admitting said pretended will to probate in Fayette county and in issuing letters testamentary thereon; that by reason of the unauthorized act of the defendant Frank M. Allen, present probate judge, in attempting to exercise jurisdiction over the administration of the estate; and that by reason of the defendant Daniel McLean pretending to act as executor under an illegal and invalid appointment, the jurisdiction of the probate court and the probate judge of Franklin county is interfered with and the relator is interfered with and prevented from performing his duties as such executor. It is further alleged that the guardian refuses to settle with and to turn over to relator the personal estate of said John B. McLean.
    The prayer of the petition is that a writ of prohibition issue directed to the defendant Frank M. Allen, probate judge of Fayette county, forbidding him as such probate judge and probate court further to exercise jurisdiction over said estate or to take further proceedings in said matter; and also directing that the record of said probate court in said matter be quashed, that the said letters so issued to said Daniel McLean be canceled and held for naught, and that the order admitting to probate in Fayette county the pretended last will and testament of John B. McLean be canceled and held for naught.
    
      Mr. M. R. Patterson; Mr. Tom S. Maddox and Mr. H. H. McMahon, for relator.
    
      Messrs. Gregg, Patton & Gregg; Mr. E. G. Lloyd and Mr. O. H. Mosier, for defendants.
   Newman, J.

The plaintiff is asking that a writ of prohibition issue. The jurisdiction of the probate court of Fayette county in the probate of the will of John B. McLean and in the issuing of letters testamentary thereon is challenged. The probate courts of this state are courts of record and have jurisdiction in probate and testamentary matters. (Sections 7 and 8, Article IV of the Constitution.) It has.been held repeatedly that these courts are in the fullest sense courts of record, belonging to the class whose records import absolute verity, and competent to decide on their own jurisdiction. They have full jurisdiction to adjudicate all questions arising in proceedings properly before them. In the hearing of an application to probate a will a probate court has jurisdiction to fully and finally determine all questions involved in.the application, including that of the domicile of the testator, and the judgment of the court is protected by the same rule as to collateral attack as other judgments of courts of record. Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.

On May 27, 1916, a paper writing dated December 29, 1915, purporting to be the last will and testament of John B. McLean, was offered for probate in the probate court of Fayette county. The application for probate contained allegations of-facts sufficient to establish the jurisdiction of the probate court, among which was the allegation that McLean was a resident of Fayette county. Notice was served upon his widow and his next of kin, as required by Section 10507, General. Code. Two of the next of kin of McLean contested the jurisdiction of the probate court of that county to entertain the application for probate. This they had the right to do under Section 10520, General Code, which gives to any person interested in the probate of a will the right to contest the jurisdiction of the court to entertain the application. The challenge to the jurisdiction was based upon the ground that McLean was not at the time of his death a resident of Fayette county, but was a resident of Franklin county, the claim being that McLean, on May 21, 1915, had been adjudged by the probate court of Franklin county to be a resident of Franklin county and an imbecile, that a guardian had been appointed of his person and property, that said order and judgment had remained in full force and effect until McLean’s death, and that his residence in Franklin county therefore had been unalterably fixed.

The proceeding in Fayette county which .had to do with the probate of the will and the issuing of letters testamentary thereon was one properly before the court and within its constitutional jurisdiction. That court, under the authority of Wilber ding, Admr., v. Miller et al., supra, had power to determine the question of jurisdiction. Counsel in elaborate and exhaustive briefs and in oral argument have discussed the effect of the adjudication as to the residence of McLean in the guardianship proceeding in the probate court of Franklin county, and the question whether or not the residence could be changed by any act of the ward. But the probate court of Fayette county, having jurisdiction of the subject-matter, had the right to and it was its duty to inquire into the matter of the residence of McLean. This was a jurisdictional fact which that court had the power to determine. It may have been erroneous in its decision, but, as was held in The State, ex rel. Garrison, v. Brough et al., 94 Ohio St., 115, followed in Kelley, Judge, v. The State, ex rel. Gellner, 94 Ohio St., 331, the writ of prohibition cannot be made to serve the purpose of a writ of error to correct mistakes of a lower court in deciding questions of law within its jurisdiction. In the Kelley case, the relatrix based her action for a writ of prohibition upon two grounds, one of which was that the insolvency court of Hamilton county was without jurisdiction in a certain divorce proceeding, for the reason that the plaintiff in that proceeding had not been a resident of the state of Ohio for one year next preceding the filing of the petition. What is said in the opinion in that case in reference to the residence of the plaintiff in the divorce proceeding applies to the matter of residence in the instant case. It is said, at page 341:

“Whether or not the plaintiff in the divorce proceeding had been a resident of the state one year prior to the time of filing his petition for divorce was a question of fact about which there might be, and in this case apparently was, some dispute. In all cases where an inferior court has jurisdiction of the matter in controversy and keeps within the limits prescribed by law for its operation, the superior court should refuse to interfere by prohibition, and it should not consider whether the court below erred in the exercise of its powers, since it has nothing to do with the correctness of the rulings of the inferior court but only with its exercise of jurisdiction.”

It is to be noted that in the application for probate filed in the probate court of Fayette county there was a statement that McLean had an estate in that county, and it is urged by counsel for the defendant that that fact, under the provisions of Section 10511 et seq., General Code, would authorize the probate of the will in that county, although McLean had not been a resident thereof. Counsel for relator, however, say that Section 10511 became a law October 1, 1840, while Section 10604, which provides that upon the death of an inhabitant of this state letters testamentary shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died, did not become effective until November 1st of -that year, and that Section 10511, in so far as it authorizes the original probate of the will of a deceased inhabitant of this state in any county other than the county of last residence, being absolutely inconsistent with the provisions of Section 10604, was repealed by Section 10604. But, in our view of the case, it is unnecessary to consider the question here, for it appears that upon the hearing of both the application for probate and the application for letters testamentary there was a finding by the probate court that McLean was a resident of Fayette county. When this finding was made and the other statutory requirements were complied with the court was authorized to admit the will to probate and issue letters testamentary thereon. It may have been erroneous in its decision, but the person aggrieved had an adequate remedy at law to correct the error. Section 10521, General Code, provides that the decision of the probate court as to its jurisdiction may be reviewed on error, and plaintiff in this case prosecuted error to the court of common pleas where the judgment of the probate court was affirmed. It appears that an error proceeding is now pending in the court of appeals of Fayette county to review the judgment of the court of common pleas. If the judgments of the probate court of Fayette county in admitting the paper writing to probate and in issuing letters testamentary thereon were erroneous, it is to be presumed that these judgments will be reversed.

Again, in this proceeding we are concededly not concerned with the question whether the paper writing admitted to probate by the probate court of Fayette county was or was not the last will and testament of John B. McLean, or whether or not he was competent to make a will on December 29, 1915, while the adjudication of imbecility was in full force and effect and while he was under guardianship. That qttestion, of course, can be determined in an independent action to contest the will. To conclude, if the judgment of the probate court of Fayette county was based upon erroneous conclusions of law or fact, it was subject to attack in a proceeding in error. It cannot be reviewed or set aside in a proceeding in prohibition.

Writ refused.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.  