
    ESTATE — ADMINISTRATORS—PRACTICE.
    [Cuyahoga Circuit Court,
    December 11, 1899.]
    Caldwell, Marvin and Hale, JJ.
    Albert Meswald (Estate of) v. Henry F. Marks.
    1. Ancillary Administration.
    Where it appears, from the order of the probate court appointing an administrator, that deceased at the time of his death was a resident of Michigan, the administration on assets in Ohio must be ancillary to the administration of the estate in Michigan.
    2. Funds Properly Turned Over to Foreign Administrator.
    The probate court is authorized, therefore, to direct the administrator appointed in Ohio after full administration of all assets in Ohio, to pay ■ money in his hands into court, and that the same be paid to the administrator appointed in Michigan.
    3. Petition of Widow Improperly Filed in Ohio.
    And an order dismissing the petition of the administrator of the estate of a person who was the wife of deceased, and is claimed to have survived him, and to have been his only heir at law, which was filed in the probate court in ■ Ohio, was properly made.
    4. Practice — Question not Available on PIrror.
    Where tiie order dismissing such petition was properly made, and where, upon appeal, the same order was made by the court of common pleas, the question whether the order made by the probate court was one from which an appeal could be taken, is npt available in the circuit court, inasmuch as the petitioner was not prejudiced thereby.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The questions raised in this case can, as we think, all be disposed of by disposing of the question of whether the administration granted upon this estate by the probate court of Cuyahoga county, Ohio, was a general administration or only ancillary to the administration of the same estate in the state of Michigan.

The transcript, from the probate court is very voluminous. On October 21, 1893, an entry was made in that court, in which the court finds that Meswald died in a foreign country, and left assets and property in Cuyahoga county, and that he was engaged in a co-partnership business in this county. In the same entry, these words appear: “It is ordered that said John Mitchell, a brother-in-law, be and is hereby appointed administrator on the estate of Albert Meswald, deceased, late of the city of Marine, Michigan.

It will be observed that in the earlier part of this entry, it is not found that the deceased was not a resident of this state but only that he died in a foreign country; but the order; appointing the administrator, recites “that such appointment is upon the estate of one now deceased, late of the city of Marine, Michigan,” which substantially, is a finding of the court that Meswald was not at the time of his death a resident of Ohio.

Thereafter orders, from time to time, were made in that court, and on June 8, 1894, Mitchell having been removed from administration, this entry was made: “W. H. Barris is hereby appointed administrator on the estate of Albert Meswald, deceased, as to all assets of decedent, in this state and county.” - Which is again a clear recognition of the fact that Meswald was not a resident of Ohio at the time of his death.

On January 22, 1896, an order was made terminating the administration of said W. H. Barris upon this estate, the court finding that all the estate of said decedent in the jurisdiction of this court had been administered upon. At this time certain funds of the estate were in the hnads of John Mitchell, the administrator first appointed by the probate court of Cuyahoga county.

On April 23, 1897, an entry was made in the probate court of this county, finding, among other things: “That an administrator has been appointed in the county of St. Clair, state of Michigan, on the estate of the decedent, the county of his residence at the time of his death.” And thereupon the court ordered Mitchell to pay into court the funds still remaining in his hands. In this same finding the court said:

“That the debts and liabilities outstanding in the county of Cuya-hoga and state of Ohio, have been determined and satisfied out of said estate.”

Thereafter, Mitchell paid such monies into the hands of the probate court of this county.

On August 2, 1897,- a petition was filed in the probate court of Cuyahoga county, by John Wedow, as administrator of the estate of Sarah Meswald, deceased, claiming that Sarah Meswald was the wife of the deceased John Meswald; that she survived her husband, and at his death was his only heir at law, and therefore, entitled to all the estate of said John Meswald, deceased, left for distribution; and praying that the monies paid into that court by said Mitchell be paid by the court over to him, as such administrator of the estate of Sarah Meswald, she having since died.

No appeal was taken from any of the findings of the probate court, that John Meswald was a resident of the state of Michigan at the time of his death, and we understand that such finding was no longer open to question in that court.

Upon the hearing of this petition, and of a motion, made by Henry Marks, as administrator of the estate of John Meswald, deceased, appointed by the probate court of St. Clair county, Michigan, to have the funds which had been paid by Mitchell into the probate court, paid over to him, the court ordered that the petition of Wedow be dismissed, and that the funds be paid to said Marks as administrator as aforesaid.

From this order an appeal to the court of common pleas was taken by John P. Wedow, as administrator of the estate of Sarah C. Meswald; and, on the hearing, on September 2, 1889, various motions having been heard in the meanwhile, the court dismissed the petition of the said John F. Wedow, and at the same time dismissed the appeal.

Goulder, Holding & Mast on, for plaintiff in error.

O. C. Pinney, for defendant in error.

As the probate court had, in earlier orders, not appealed from and not reversed, found that Meswald at the time of his death was a resident of Michigan, it would seem that so far as this proceeding is concerned, that was no longer an open question. Indeed, but for such holding, we know of no law which would have authorized the court to require tire money, which was in Mitchell’s hands, to be paid over to the court. That was done by virtue of sec. 6013, Rev. Stat., and, under the same section, the court made the proper order when it directed that the < same money be paid to the administrator appointed in Michigan. There was no error, therefore, in the order of the common pleas court dismissing the petition of Wedow.

Without considering the question at all as to whether the order of the probate court was one from which an appeal could be taken, or the question of whether it was properly taken, it is enough to say that since the order of the common pleas court in dismissing the petition of Wedow was the same as that made by the probate court dismissing such petition and ordering the money paid to the administrator appointed in Michigan, was, as we find, the proper order, the plaintiff in error was not prejudiced by the order dismissing the appeal.

The judgment of the court of common pleas is affirmed,  