
    CUNNINGHAM v BESSEMER TRUST CO.
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 1039.
    Decided April 18, 1931
    McClure & McClure, for Cunningham.
    Sigler & Denlinger, Dayton, for Cunningham.
    Thomas, Hyers & Leyland, Dayton, for Bessemer Trust Co.
    B. M. Burons, for Bessemer Trust Co.
   ALLREAD, PJ.

The question therefore is should this court, upon the motion of counsel for plaintiffs in error, grant this motion to dismiss this error case dismiss the appeal in the Court of Common Pleas and dismiss the proceedings in the Probate Court.

We have examined all the cases cited in the briefs and we do not think any of them are authorities for the present case. It must be observed that there were two subjects presented in the Probate Court, the first was as to the inheritance tax and the second was the question of the residence of the testator. The first question was between the estate and the taxing authorities. The second'question was between the heirs of the estate or rather the plaintiffs in error and the executor of the estate. The second question was the one considered and-decided by the Court of Common Pleas and is the question for decision here. This question arose under proceedings instituted under §10639 and §10640 GC and was one of which both the Probate and Court of Common Pleas had jurisdiction.

The Court of Common Pleas have decided the one -question over which it had jurisdiction and as to which the tax commission had no concern or interest. Its decision was within its jurisdiction and the judgment of the lower courts cannot be held as erroneous because no notice was given to the state tax commission or county auditor.

The motion now before the court must be overruled.

HORNBECK and KUNKLE, JJ, concur.  