
    Brigel v. Starbuck.
    An order, decision, or decree of the probate court, in a proceeding under the statutes in relation to assignments for the benefit of creditors, is not appealable to the court of common pleas, unless it is of a definitive nature, affecting property rights; and the approval by the probate court of the election of an assignee by the creditors, is not an order, decision, or decree of that nature.
    Error to the District Court of Hamilton county.
    George Weber, on December 15, 1874, executed a deed to Alexander Starbuck and Jacob Pfau, assigning his propperty to them for the benefit of his creditors, pursuant to the statutes then in force relating to that subject. 1 S. & O. 709 ; S. & S. 395 ; 68 Ohio L. 41; 69 lb. 71, 172; 71 lb. 28,73; 73 lb. 101, 146; 74 lb. 110. The provisions of these acts have been modified in some respects, and incorporated into the probate code. 75 Ohio L. 935.
    The assignment was filed in the Probate Court of Hamilton county, on the same day, and the assignees gave bond and entered on the pei’formance of their duties.
    May 14, 1878, certain creditors of Weber filed a petition in the probate court for permission to make choice of an assignee in place of Starbuck and Pfau. The petition was filed under the fourteenth section of the assignment law of 1859, which as amended in 1874, (71 Ohio L. 74), is as follows :
    “ That whenever a petition properly verified, signed by creditors whose claims against the estate of the debtor .amount to the sum of one thousand dollars or upward, shall be filed in the probate court, praying for permission to elect an assignee or assignees of the estate of the debtor, it shall be the duty of the probate judge to cause printed •or written notices to be served by mail or personally, upon .all creditors named in the schedule filed in said court, or whose names may be given to him by the debtor, or any •creditor, which notice shall specify the time when the creditors will meet at the office of said probate judge for such election. That on the day mentioned in said notice, if creditors representing fifty per centum or more of the debts of the assignor, shall appear in person or by attorney, said •creditors may proceed to choose one or more assignees of the estate of the debtor, the choice to be made by the greater part in value and number of the creditors who are thus present at said meeting, which choice shall be subject to the approval of the court. The said choice of election shall be evidenced in writing, signed by the creditors so making the election, and filed with the court. Thereupon, if within ten days the assignee or assignees shall personally appear in said court, accept the trust and give bond, as provided in the first section of this act, the said assignee or assignees shall succeed to all the rights and privileges, and be subject to all the duties and liabilities, of any preceding assignee, and the rights, privileges, and powers of any preceding assignee shall thereupon cease and determine. The court shall make and enforce all necessary orders to put the said assignee or assignees into possession of all property, moneys, rights, or credits belonging to the assignor covered by the assignment. The assignee or assignees thus chosen and qualified, shall have power, by suit in the court of common pleas or otherwise, to compel the delivery of all the property, moneys, rights, and credits of the assignor covered by the assignment in the hands or under tbe control of the preceding assignee, and of all books and papers of the assignor to them. The probate-judge shall .have the right at any time to remove any assignee for good cause, and to appoint another in his stead, and to make and enforce all orders necessary to cause the property and effects to be delivered to the new trustee, and to require new undertakings with additional sureties; and on application made by any surety or sureties of any assignee may, if satisfied of the reasonableness of such application, discharge such surety or sureties from further-liability, and require that said trustee shall be removed or give new sureties.”
    The meeting of creditors was held, and the probate court made and entered on the journal, in the insolvencjr proceeding, the following order:
    “ Now, on this 20th day of May, a. n. 1878, the proceedings, in writing, of the meeting of the creditors of the estate of said George Weber, signed by said creditors present at said meeting held on the 18th day of May, a. d. 1878, in the office of the Probate Court of Hamilton county, Ohio, was presented to this court; and it appearing to the court that creditors representing more than fifty per cent, of the debts of the said assignor, George Weber, were present at said meeting, in person or by attorney, and that said-creditors elected and chose Leo A. Brigel assignee of the-estate of said George Weber, said choice being made by the-greater part, in number and value, of the creditors present at said meeting, and the said election and choice so made by said creditors being now submitted to the court for approval, the election and choice of said Leo A. Brigel, as assignee of the estate of George Weber, so made by said creditors, is hereby approved by the court.”
    Peter Andrew, one of the creditors of Weber, and others, gave notice of appeal from the order of approval to the court of common pleas, and gave bond for such appeal,, which was approved by the probate court.
    The appeal was taken under the third section of the act of 1854, relating to the probate court (2 S. & C. 1218; S. & S. 625), which section, as amended in 1871 (68 Ohio L. 57),; was as follows:
    “ That appeals may be taken from any order, decision,, or decree of the probate court in settling the accounts of an executor, administrator, or guardian; in proceedings for the sale of real estate for the payment of debts; in cases where the probate court shall have increased or diminished the allowance made by appraisers of any estate to any widow or minor child or children for their support for one year; in proceedings against persons suspected of having concealed,, embezzled, or conveyed away the property of deceased persons ; in cases for the completion of real contracts ; from any order, decision, or decree made under ‘ an act regulating the-mode of administering assignments in trust for the benefit of creditorsand in proceedings to appoint guardians for lun- ■ atics or idiots, by any person against whom such order, decision, or decree shall be made, or who may be affected thereby, to the court of common pleas of the proper-county; and the cause so appealed shall be tried, heard, and decided in the court of common pleas, in the same manner as though the said court of common pleas had original jurisdiction thereof.”
    This section also has been incorporated in the probate code. 75 Ohio L. 957.
    May 28,1878, the court of common pleas, on motion of Brigel, dismissed the appeal.
    June 15, 1878, the district court, on the petition of Peter Andrew, Alexander Starbuek, and others, reversed the judgment of the court of common pleas, and remanded the matter to that court for further proceedings.
    Leo A. Brigel, on leave, filed, in this court, a petition in error to reverse the judgment of reversal, for the reason that the order of approval by the probate court was not appealable ; and whether that objection is well taken is the; question on this final hearing.
    
      
      Long, Kram.er $ Kramer, for plaintiff in error:
    They insisted that the order was not in its nature final, .and lienee was not appealable, and they cited Teaff v. Hewitt, 1 Ohio St. 543; Lawson v. Bissell, 7 Ohio St. 129 ; Still’s estate, 15 Ohio St. 484; Bell v. Crawford, 25 Ohio St. 402; Aultman v. Seiberling, 31 Ohio St. 204.
    
      Iioadly, Johnson § Colston; Matthews, Ramsey § Matthews ; .and L>. M. Hymans, for defendants in error:
    .1. They claimed that the act authorizing the appeal (68 ■Ohio L. 57) applied as well to the assignment law (includ•ding the fourteenth section thereof), after the amendment of the fourteenth section in 1874 (71 Ohio L. 74), as to the .act in its original form. Ex parte Zellner, 9 Wall. 244.
    2. They also claimed that the approval was in effect a final order as to a branch of the cause separable from the -other parts of it, and therefore appealable. They commented on the cases cited for plaintiff in error, and cited, in addition, the following cases: Clermont Co. v. Robb, Wright, 48 ; s. c., 5 Ohio, 491; Butman v. Fowler, 17 Ohio, 101; Shepard v. Darke Co., 8 Ohio St. 354; 1 Ohio St. 432; Bowersox v. Watson, 20 Ohio St. 496 ; State v. Hamilton Co., 26 Ohio St. 364; Southard v. Stephens, 27 Ohio St. 649. They cited, furthermore, various acts from the statutes of Chase and Curwen, to show the policy of the legislature in providing for appeals in analogous cases.
    3. They insisted, moreover, that the order affected the ¡substantial rights of Starbuck and Pfau, and cited Ex parte Garland, 4 Wall. 333 ; Angell & A. on Corp., § 426.
   Okey, J.

The statutory provision relating to appeals from the probate court, in force at the time these proceedings were had, was passed in 1871 (68 Ohio L. 57), as appears in the statement of the case. The provision, it will be seen, authorized an appeal from that court to the court ■of common pleas “ from any order, decision, or decree made under ‘ an act regulating the mode of administering assignments in trust for the benefit of creditors/ ... by any person against whom such order, decision, or decree shall be made, or who may he affected thereby.” The fourteenth section of the assignment law of 1859 (1 S. & C. 712), in force-in 1871, did not authorize the creditors to select an assignee.. That, as appears in the statement of the case, was provided for in 1874, by an amendment of the section. 71 Ohio L. 74. But this in no manner affects the rights of the parties. The amendment did not leave the assignment law of 1859 without a fourteenth section. The section retained its place in the act in its amended form, and the above mentioned act of 1871, relating to appeals, applied as well to-the act as amended in 1874 as to the original act. McKibben v. Lester, 9 Ohio St. 627 ; Job v. Harlan, 13 Ohio St. 485; Bowers v. Pomeroy, 21 Ohio St. 184; Taylor v. Thorn, 29 Ohio St. 569.

The question for our consideration, then, is whether the-probate court's approval of Brigel as assignee, in place-of Starbuck and Pfau, was an appealable order. The language of the statute, “ any order, decision, or decree,” taken literally, would embrace this order. Nor can it be-doubted that where the words of a statute are perfectly • clear, they are to be adhered to, notwithstanding the consequences are such as the legislature had not contemplated,, and such as might occasion some inconvenience. In such case there is nothing to construe. But where strict adherence-to the mere letter of a remedial statute will manifestly lead to-serious inconvenience, interruption, and delay in the settlement- of an estate, we may sometimes depart from it; and we are always justified in looking to the whole statute to-ascertain in what sense the words were used.

There can be no doubt that general words in a statute-will sometimes be limited in their application. Thus, although the statute to prevent frauds declares that fraudulent conveyances “ shall be deemed utterly void and of no-effect,” yet they are held to be valid except as to creditors- and purchasers. Burgett v. Burgett, 1 Ohio, 469. The word “ void” in a statute is, indeed, frequently construed to mean voidable. Terrill v. Auchauer, 14 Ohio St. 80. The word. “ all ” in an act is to be construed in a general or universal'. ■sense, according to the demands of sound reason. Stone v. Elliottt, 11 Ohio St. 252. Words, however broad, must be ■construed in view of the territorial limit to the powers of the legislature. Woodward v. Michigan, etc., It. Co., 10 Ohio St. 121. And it is a general rule that “ all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter or person.” Steamboat Messenger v. Pressler, 13 Ohio St. 255 ; Tracy v. Card, 2 Ohio St. 431; Maxwell on Stats. 54.

Broad as the language, “ any order, decision, or decree,” is, this court, on careful consideration, held that it did not Embrace an order setting aside or refusing to confirm a sale made by such assignee. Aultman v. Seiberling, 31 Ohio St. 201. The court pertinently remarked, in that case, that the provision “ can not apply to decisions and orders granting continuances, or further time to assignees, or to executors .and administrators, or to decisions made during the progress ■of a trial; nor to granting authority, under the assignment law, to sell at private sale, nor to the fixing of the time within which such sale might be made ;” and it was said that to allow “ appeals from the refusal of the court to confirm sales, would be to impede unreasonably the settlement -of the assignment.” This is opposed to the view taken in New Jersey and some other states (Conover v. Walling, 2 McCarter, 167), as to the rights of such purchaser, but it is in accordance with the course of legislation and decision in this state.

It is said that if it be admitted that the order is not appealable unless it is in its nature final, still the decision in ■question is such final order, as it “ determines and disposes ■of the whole merits of ... a branch of the cause which is separate and distinct from the other parts of the ■ case.” Teaff v. Hewitt, 1 Ohio St. 511-520. There the •court was speaking of appeals under the 55th section of the chancery practice act of 1831 (3 Chase, 1702), and the ■ decisions under provisions of that character would prob..ably not be strictly applicable here. But if their entire applicability be conceded, they will be found to defeat rather than support this appeal; for, under the first section of the act of 1852 (3 Curwen, 1725), corresponding with section 55 of the chancery practice act, it was held that an order appointing a receiver to receive the revenues of a railroad, and bring the same into court subject to its order, was n )t a final order from which an appeal could be taken. Eaton & H. R. R. Co. v. Varnum, 10 Ohio St. 622.

An examination of our legislation and decisions shows that it has been the general policy in this state not to permit an appeal from an order appointing or removing a trustee, and that this extends to guardians, executors, and administrators. In some states the rule is different. 1 Green’s Ch. 78; 1 McCarter, 540; 25 N. J. Eq. 508; 3 C. E. Green, 472 ; 1 Williams’ Ex. (6th Am. ed.) 642. The exception as to an appeal from the appointment of a guardian for a lunatic or an idiot, made, doubtless, by reason of the gravity of the proceeding and its effect upon the person, estate, and family of the ward, tends to prove the general rule in this ■state, and would seem to require that those who assert other exceptions should be able to point out some provision in terms warranting the appeal.

It is, indeed, a recognized principle that general words in a ■statute granting appeals will, ordinarly, not be extended to matters resting in the discretion of the court, or to judgments, orders, or decrees of an interlocutory character. To render the decision of orders of that sort appealable, express provision must be made, or words must be employed from which it is reasonably certain that such was the intention. As expressed in Juan v. Ingoldsby, 6 California, 439, “ appeals from interlocutory orders are the creation of statute, and •can not be extended by implication.” And see 3 Estee’s Pr. 646. We do not think the intention to make the order in •question appealable is to be inferred in this case. The principle is really settled in Aultman v. Seiberling, supra, where it was said: “ In view, therefore, of the nature of an ¡appeal, and of the effect of allowing it in cases like the present, it seems to us that it was not intended to apply to such cases. That an order or decision, to be the subject of appeal, must be definitive or final in its character.” And we believe that it may be stated as a general rule, that an order to be appealable, must affect property rights, and not merely the administration of the trust. Here there is no-question as to the amount of any creditor’s claim, as to the-order of.liens, as to the property assigned, or as to the costs- and expenses of the assignment; but the sole contention is-as to the persons who shall administer the assignment. An appeal from such an order involves delay, as well as expense, whereas it is the duty of a substituted assignee to proceed immediately to the execution of the trust. We do not think the original assignees had such interest 'in this trust as to-entitle them to litigate the question of their displacement by an appeal to the court of common pleas, nor do we think any creditor could litigate the question in that form. The-analogy between such a trust and a public office is slight.

An examination of other clauses of the section under consideration, leads to the same conclusion. Thus, “ appeals may be taken from any order, decision, or decree-.of the probate court ... in proceedings for the sale of real estate for the payment of debts.” Could an appeal be taken from an order substituting one appraiser for another in such case ? It will not be claimed that this could be done, and yet the order would be embraced by the-general language of the section. Other reasons might be-given why the general words of the section ought to be-limited in their application, but let these suffice. Whether,, in such cases, there is any remedy by proceeding in error,, or otherwise, we need not determine.

Judgment of the district court reversed, and judgment of the court of common pleas, dismissing the appeal,, affirmed. 
      
       Erroneously printed definite. 31 Ohio St. 205.
     