
    Roth v. Siefert.
    
      Application to establish lost will — Appeal from probate to common pleas court lies, when — Error cannot be prosecuted to circuit court, when — Court procedure.
    
    1. An appeal lies to the court of common pleas from an order of the orobate court overruling an application to find and establish the contents of a lost will.
    2. An order of the court of common pleas finding and establishing the contents of a lost will is not reviewable upon petition in error.
    (No. 10402
    Decided January 21, 1908.)
    Error to the Circuit Court of Wyandot County.
    September 3, 1903, Mary Roth died leaving Adam Roth, her widower, and ten children her only heirs at law.
    July 7, 1905, Adam Roth made application to the probate court of Wyandot county to admit to probate the last will and testament of said Mary Roth, which he represented' she had left at the time of her decease, and that the same subsequently thereto had been lost or destroyed.
    To this application he attached what he averred was a copy of the will, and concluded his application as follows: “Your petitioner offers said
    will for .probate and prays that a time may be fixed for the proving of the same, and that said above named persons resident in this state may be notified according to law of the pendency of said proceedings.”
    On the same day the probate court ordered a copy of the will to be filed and fixed the 17th day of July for the hearing of the application, and ordered that due notice be given to the widower and next of kin of the testatrix, resident of the state of Ohio.
    July 17, 1905, the probate court examined the witnesses that appeared and reduced their testimony to writing and filed it, and found that the testimony failed to show that the will was lost or destroyed, and that there was no testimony to show the contents of the will and refused to admit the same to probate.
    Adam Roth gave notice of appeal, and on July 31, 1905, filed in the court of common pleas the transcript of the proceedings before the probate court and the original papers.
    October 16, 1905, the court of common pleas overruled the motion, filed by two of the heirs, to dismiss the appeal.
    October 30, 1905, the following entry appears on the records of the court of common pleas:
    
      “In the matter of the application to admit to probate the last will and testament of Mary Roth, deceased.
    “Adam Roth came this day before this court for the purpose of proving the execution and contents of the last will and testament of Mary Roth, late of Wyandot county, deceased; and it appearing to the court that due notice has been given all persons interested in said will, thereupon Bernice B. Stutz and Arthur A. Stutz, subscribing witnesses to said will, and also Adam Roth, appeared in open court and were duly sworn and examined touching the execution and contents of said will, and their testimony thereon was reduced to writing and filed.
    “And the court being satisfied from the testimony so taken that the said Mary Roth did, in the year of 1900 or 1901, duly execute her last will and testament, in the mode provided by the law in force at the time of its execution, and that said will was not revoked by said testatrix, but that it has been lost subsequent to the death of said testatrix, the court finds and does hereby establish the contents of said will to have been, as near as can be ascertained, as follows:
    Tn the name of the Benevolent Father of all, I, Mary Roth, of Upper Sandusky, Wyandot County and State of Ohio, being of sound and disposing mind and memory, considering the uncertainty of the continuance in life, and desiring to make such disposition of my worldly estate as I deem best to make, publish this and declare this to be my last will and testament, hereby revoking all former wills by me made.
    
      ‘Item 1st. It is my will and desire that all my funeral expenses be paid out of my estate.
    ‘Item 2d. I will and bequeath to my beloved husband, Adam Roth, all my estate both real and personal.
    ‘Should my husband, Adam Roth, die before my demise, it is my will and desire that my estate shall be divided share and share alike between my sons, Adam Roth, Charles Roth, Christ Roth, George Roth, William Roth, John Roth, Henry Roth and Frederick Roth and my daughter, Mary Roth, wife of Jacob Siefert.
    ■ ‘My son, Jacob Roth, to have one ($1.00) dollar as his share in my estate in the event that my beloved husband, Adam Roth, • dies before- my death.
    . ‘Item 3d. ' I hereby maintain and appoint my beloved husband, Adam Roth, executor of this my ■last will and testament, and desire that he shall not be required to give bond as such executor, and that the court of probate direct the omission of the same in pursuance of the statute.
    ‘In testimony. whereof I have hereunto set my hand and seal this .... day of........, 1900 or 1901.
    : ‘Mary Roth.
    ‘Signed and acknowledged by the said Mary Roth, as her last will and testament in our presence, and subscribed and attested by. us as witnesses in her presence and at her request.
    ‘Bernice B. Stutz, (Seal).
    ‘Arthur A. Stütz, (Seal).’
    • “And it is further, ordered that the clerk of this court certify to the probate court the final order of this court, together with the will and testimony so taken, the will, order and testimony shall be recorded in the probate court as in the case of other wills admitted to probate. .
    “To all of which Mary Siefert and Jacob Roth, severally except.
    “This day this matter came on to be heard on motion of Mary Siefert and Jacob Roth for a rehearing of said matter, on consideration said motion is overruled, to which said Mary Siefert and Jacob Roth except.”
    February 20, 1906, petition in error and bill of exceptions were filed in the circuit court.
    October 12, 1906, the circuit court found that there was error,' “in this, to-wit: in refusing to allow cross-examination of witnesses called by defendant in error and because the alleged will submitted to and passed upon by the court of common pleas was not the same alleged will that was submitted to and passed upon by the probate court, and the court finds no qther error,” and reversed the judgment and remanded the case to the court of common pleas for a new trial and other proceedings according to law.
    Error is prosecuted in this court.
    
      Messrs. Meek & Stalter, for plaintiff in error.
    
      Messrs. Carter & Goodrich and Mr. Thomas Beer, for defendants in error.
   Summers, J.

It may be that in a proceeding to establish a lost will it is error to refuse permission to persons whose interest it may be to resist the probate, to cross-examine witnesses. In the Missionary Society of the M. E. Church v. Ely et al., 56 Ohio St., 405-409, the judge writing the opinion says, respecting the statutes relating to the probate of wills, that they provide for bringing in the interested parties who are permitted to cross-examine the witnesses. But that question is not presented by the record. It was decided in Hollrah v. Lasance et al., 63 Ohio St., 58, that: “An order of the probate court admitting a paper to probate as a last will and testament is not reviewable on petition in error, though an order refusing to admit such paper to probate is reviewable.” If the court of common pleas acquired jurisdiction by; the appeal, its order finding and establishing the lost will was not reviewable upon petition in error in the circuit court. If the court of common pleas did not have jurisdiction upon appeal, then it was error in that court to find and establish the lost will, and the circuit court on petition in error would have jurisdiction to reverse the order of probate and to dismiss the appeal, so that the only question presented is whether an appeal lies to the court of common pleas from an order of the probate court refusing to find and establish a lost will in a proceeding pending before it for that purpose.

Section 5944 of the Revised Statutes is as follows: “The probate court shall have full power and authority to admit to probate, any last will and testament which such court may be satisfied was duly executed according to the provisions of the law upon the subject in force at the time of the execution of such last will and testament, and not revoked at the death of the testator, when such original will has been lost, spoliated, or destroyed, subsequent to the death of such testator, or after the testator has become incapable of making a will-by reason of insanity, and it can not be produced in court in as full, ample, and complete a manner as such court now admits to probate last wills and testaments, the originals of which are actually produced -in court for probate.”

Section 5945 provides for notice; Section 5946 provides what and how testimony shall be taken, and Section 5947 provides: “If the court, upon such proof, shall be satisfied that such last will and testament was duly executed in the mode provided by the law in force at the time of its execution; that the contents thereof are substantially proved, and that the same was unrevoked at the death of the testator, and has been lost, spoliated or destroyed subsequent to the death of such testator, or his becoming incapable, as aforesaid, such court shall find and establish the contents of such will as near as the same can be ascertained, and cause the same and the testimony taken in the case to be recorded in said court,” and Section 5948 provides that the same effect shall be given to the will so established as would have been given to the original will when admitted to probate and record.

These sections of the Revised Statutes are derived from the wills act of 1852, 50 O. L., 297, Sections 47-51, and contain substantially the same provisions. These provisions, were first enacted in 1848, 46 O. L., 66, and then conferred the power upon the, court of common pleas. The constitution of 1851. directed that there should be established in each county in the state a probate court, and that it should have jurisdiction in probate and testamentary matters. The act of 1852 necessarily placed the original jurisdiction in such matters in the probate court.

Section 4 of the act of 1852, 50 O. L., 84, defining the jurisdiction and regulating the practice of probate courts, provided, “That in case the judge of probate shall refuse to admit any will of a deceased person to probate, the person or persons presenting the same for probate shall have the right to appeal from such decision to the court of common pleas of the proper county; and in all cases where any will of a deceased person shall be regularly admitted to probate, any persons shall have the right to contest the validity of said will, by filing his or her petition for that purpose in the court of common pleas of the proper county.” This act was repealed in 1853, 51 O. L., 167, by an act defining the jurisdiction and regulating the practice of probate courts. Section 22 of this act is as follows: “In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal within ten days.” Section 23 • is as follows: “The person appealing shall procure and file in the court of common pleas a certified copy of the order of said probate court rejecting the will, and thereupon said appeal shall be deemed perfected.” These sections are incorporated in the Revised Statutes as Sections 5934 and 5935 and read as follows: “Sec. 5934. In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal within ten days.”

“Sec. 5935. The person appealing shall procure and file in the court of common pleas a certified cop}r of the order of said probate court, rejecting the will, together with the will, and thereupon said appeal shall be deemed perfected; and the court of common pleas, on the hearing, shall take testimony touching the execution of such will, and have the same reduced to writing; and the final order of the court of common pleas shall, together with the will and testimony so taken, be certified by the clerk to the probate court; and if by such order the will is admitted to probate, the will, order, and testimony shall be recorded in the probate court.”

It is contended that an appeal does not lie in the case of a lost will because the statute provides that the person appealing shall procure and file the will in the court of common pleas, and this is impossible where the will is lost or destroyed and where the probate court refuses to find and establish the same.

This requirement did not appear in the statutes until the revision in 1880. Before the establishment of the probate court the court of common pleas had jurisdiction to find and establish the contents of a lost will, as well as to admit a will to probate, and we are of opinion that the statutes prior to 1880 gave the right of appeal, when the probate court refused to find and establish a lost or spoliated will, • as well as when it refused to admit an existing will to probate. No reason is suggested and none occurs to us why the legislature should make the discrimination, and if such had been its intention, it is hardly conceivable that it should be manifested only by a direction to file the will with the certified copy of the order of the probate court. That requirement must be interpreted as limited to cases in which a will is in existence. In Hollrah v. Lasance et al., 63 Ohio St., 58, supra, it is held, when the probate court found and established the contents of a lost will, that error did not lie, because the remedy is by contest, but if counsel’s contention is sound there could in such case be no contest, because it is impossible for the probate court to transmit the will to the common pleas court as Section 5936 directs.

The circuit court was without jurisdiction to reverse the judgment of the'court of common pleas, and its judgment is reversed and the petition in error in that court dismissed.

Reversed.

Si-iaucic, C. J., Price, Crew, Spear and Davis, JJ., concur.  