
    No. 858
    BEST v. McCLURE
    Ohio Supreme Court
    No. 17864
    Decided Oct. 23, 1923
    To Appear in Ohio State Reports
    136. COURTS.
    Proceedings by a guardian to sell the interest of his ward in real estate which had been devised to the defendant, who sought to compel the guardian, before such a sale, to resort to fund provided for the ward’s support, is a case of chancery jurisdiction, and therefore appealable under the Constitution of Ohio, Art. IV, Sec. 6.
    Attorneys — A. H. Miller, Alliance, and W. I Spence, Lisbon, for Best; W. S. Emmons, Alliane contra.
   PER CURIAM,

Epitomized Opinion

Plaintiff George W. Best began his action in the Mahoning Common Pleas, praying for the sale of property in the interest of his ward, Alfred H. McClure, an imbecile.

John McClure,, the father /if Alfred, had bequeathed a farm to his son Walter and daughter Mary. .The will had a provision that the son Alfred was to have a home thereon, and Walter and Mary should furnish him suitable maintenance. Later, Walter died and bequeathed his interest in the farm to William the answering defendant herein.

It appears that when Walter died, for the purpose of discharging the obligation to maintain Alfred imposed upon him by the will, created a trust fund the income from which was to be paid for the sup port of Mary and Alfred.

The petition set up that under the will the care and maintenance became a lien upon the land, am asked that as the farm could not produce enoug'l for the ward’s support, that the property be sold and prayed for such a sale. The answering defend ant set up .that it would be inequitable for the guard ian to resort to his interest in the farm, withou first exhausting this fund.

The trial court found it necessary to sell the pr, ises, and ordered a sale. The defendant, Willi: appealed. The plaintiff then moved a dismissal o the appeal, for the reason that the Court of Appeal had no jurisdiction to entertain it. The Court c Appeals overruled the motion and dismissed tb guardian’s petition, and from this decision error wa carried to the Supreme Court, which held as follow! a Ü 0

The petition and answer determine the characte of this action. .The petition seeks to enforce a lie upon lands devised to another. This was not de nied, but the answer sought to compel the guardia to resort to a' maintenance fund, before selling hi ward's interest in the premises. Under these pleac ings, the case was' clearly one of chancery jurisdic tion, and therefore appealable. The judgment c the Court of Appeals was affirmed.  