
    Mercer et al. v. Cunningham.
    
      Probate court jurisdiction — Assignment—Section 635S Rev. Stat.— Allowance to assignor in lieu of homestead — Assignor cannot resort to common pleas court, when.
    
    1. A probate court' exercising jurisdiction over property embraced in an assignment for the benefit of creditors has power, under section 6348, Revised Statutes, to order an allowance out of personal property to the assignor in lieu of a homestead.
    2. If such assignor omits to invoke the exercise of that power, he cannot resort to the court of common pleas by an action upon the bond of the assignee to recover the value of such property, even though he made demand therefor upon the assignee and the appraisers.
    [ Decided October 29, 1895.]
    
      Error to the Circuit Court of Tuscarawas county.
    . On the 9th day of April, 1890, Mrs. Cunningham filed in the court of common pleas her petition, of which the following is a copy.
    “The plaintiff says that on or about the 30th day of March, A. D. 1888, she was the owner of a stock of g’roceries of the value of $750.00, situate in a room in New Comerstown, in the county of Tuscarawas, in the state of Ohio, a few household goods, exempt to her by law, and some book accounts, amounting to the sum of about $350.00, a large part of which are and have ever been uncollectible and worthless.
    “That at the time said plaintiff executed and delivered to the defendant, Solomon Mercer, her deed of assignment, whereby she conveyed to him all her property in trust for the benefit of her creditors,' except this, that said deed of assignment contained a special provision therein, excepting therefrom and reserving to plaintiff, her exemptions in lieu of a homestead, and other rights and property to which she might be entitled, under the homestead, exemption, or other laws of the state of Ohio.
    “At the time of the making of said deed of assignment and ever since, plaintiff and her husband (she being all of said time and ever since a married woman), have been residents of the state of Ohio, residing together therein, and neither said plaintiff or her said husband being* the owner of a homestead, and her said husband owning no property whatever, real or personal, and all the property owned by the plaintiff at the time of said assignment or since is that aforesaid, all of which said Solomon Mercer, defendant, ever well knew.
    
      “At the time said plaintiff delivered to said Mercer said deed of assignment, he was notified by both plaintiff and her attorney, that she reserved and retained from said property, and demanded that he cause to be set off to her enough thereof to amount in value to the sum of $500.00 in lieu of a homestead, and that plaintiff would at all times be ready to select and take possession of the same.
    “Said Solomon Mercer, defendant, on or about the 30th day of March, A. D. 1888, filed said deed of assig-nment in the probate court of Tuscarawas county, Ohio, and was thereupon appointed and qualified as assignee of the plaintiff, and letters, as such were duly issued to him by said court? and said defendants, Solomon Mercer, William E„ Case and Moses B. Kennedy, thereupon duly executed a joint and several assignees ’ bond, a copy of which, duly certified according to law, is hereto attached, whereby they became jointly and severally bound to the state of Ohio in the sum of $2,500 subject to the condition that if the said Solomon. Mercer should administer the said trust in accordance with the provisions of the acts of the general assembly of the state of Ohio, regarding the mode of administering assignments for the benefit of creditors, and should faithfully perform all of his duties as such assignee according to law, then, said obligation should be void, otherwise the same was to be and remain in full force and virtue in law.
    “Thereupon, said Solomon Mercer entered upon said trust of said assignment, and as such assignee at once took possession of all the said property of plaintiff, and of the store room containing the same, and on or about the 10th day of April, A. D. 1888, by the oaths of W. E. Case, M. R. Kennedy and Samuel W. Mercer, who had been appointed appraisers by said probate court, proceeded to make an inventory and appraisement of said property, and the plaintiff having continuously, from time to time, from the time of making said assignment, demanded of said assignee, that he cause to be set off to her of said property, to the amount of $ 500 in lieu of a homestead, and "being ever ready as said defendant Solomon Mercer well knew, to select said property whenever said. Solomon Mercer, assignee, should cause the same to be set off to her; and said Solomon Mercer having ever refused to have any said property set of or to permit this plaintiff to select her exemptions therefrom, on or about the 10th day of April, A. D. 1888, -by the oaths of W. E. Case, M. B. Kennedy and Samuel W. Mercer, who had been appointed appraisers of said estate, by said probate court, proceeded to make an inventory and appraisement of said property, and plaintiff then demanded of said assignee and of said appraisers, that they should set off to her enough of said property, exempt to her by law, to amount to the sum of $500 in lieu of a homestead, and the said Solo-man Mercer, defendant, then and there well knew the plaintiff and her attorney, one A. J. Wilkin, were then and there ready to select said property so exempt to the plaintiff by law, and said Solomon Mercer, defendant, was then and there so notified of the fact, but said Mercer, disregarding said notice, and in violation of his duty as such assignee, refused to cause or permit any of said property to be set off to said plaintiff, and caused all of said property to be appraised and included in his inventory to the probate court, as assets of said estate; and said defendant, Mercer, after-wards, as such assignee, wrongfully and in violation of his duty as such assignee, notwithstanding-said demand of plaintiff, sold all of said property, including that exempt to plaintiff, receiving- therefor the sum of about $738.75, which moneys he now has in his hands as such assignee, and although frequently requested so to do refuses to pay to plaintiff any part of said proceeds.
    “Wherefore plaintiff prays judgment against the defendants in the sum of five hundred dollars, with interest thereon from the 10 th day of April, A. D. 1888.”
    A demurrer to the petition was overruled in the court of common pleas. After answer a trial was had resulting in a verdict and judgment for Mrs. Cunningham as prayed for. A bill of exceptions was taken and in the circuit court the judgment of the common pleas was affirmed. No further statement of the case is necessary to an understanding of the point decided.
    
      A. IF. Patrick and A. L. Neely, for plaintiffs in error.
    Section 5441, Revised Statutes of Ohio, provides that husband and wife living together may hold exempt $500.00 worth of his property in lieu of a homestead. Section 5319 gives this exemption, if at all, to a married woman, as against executions on personal judgments against her when she is not living- with her husband. Hill v. Myers et al., 46 Ohio St., 183.
    There is nothing in the statutes of Ohio, providing for and regulating voluntary assignments by insolvent debtors, for the benefit of their creditors, that at all indicates or from which it can be fairly inferred, that in proceedings thereunder the legislature intended an exemption of $500.00 to a wife or a married woman as such, in lieu of a homestead, but to the husband always.
    Mercer et al. v. Cunningham.
    It is not the policy of Ohio laws to duplicate homesteads nor' exempt property in lieu thereof ' to a family; hence, we find such condition expressly provided against as to a family homestead by section 5435, Revised Statutes. It was not a duty of Mercer, as assignee, to set off to Mrs. Cunningham this alleged exemption, but the duty of the appraisers appointed by the probate court exclusively, and made so by section 6348, Revised Statutes; therefore his omission, or even refusal to do so, would be no breach of the conditions of his bond. Kuhn v. Neiberg, 40 Ohio St., 631. And perhaps she had the additional remedy of replevin, after demand and offer to select, specifying the items of goods selected.
    All these remedies were ignored by the defendant in error, by reason whereof her rights in the premises, if she had any, have thereby been waived.
    The condition of the assignee’s bond as required by section 6335, Revised Statutes, is for the faithful performance of said assignee of his duties according to law, and such is the condition of the bond sued upon in this case.
    The assignee of an insolvent debtor is a trustee for the benefit of the assignor’s creditors, only, and has no duty to perform with regard to the assignor, unless in cáse there should remain in his hands a surplus of funds, after he has paid the costs and expenses of administering the trust and the debts of the assignor, which surplus he would be required to pay to the assignor. Best v. John
      
      son, 12 Am. St. R., 41; 78 Cal., 217; State v. Cutting, 2 Ohio St., 1; Lang v. Pike, 27 Ohio St., 498; Helt v. Whittier, 31 Ohio St., 476; Hall v. Williamson, 8 Ohio St., 17; Smith v. Huesman et al., 30 Ohio St., 662; McGoveny et al. v. The State of Ohio, 20 Ohio, 93; Williamson’s Adm’r v. Hall, 1 Ohio St., 190. The husband of the defendant in error is a necessary party plaintiff and should have been joined with her. The statute of Ohio, in force at the time the defendant in error made her alleged assignment, as hereinbefore alluded to, .did not give to the debtor, as it formerly did, $500.00 worth of property in lieu of a homestead, but gave it to husband and wife living together.
    
      James A. P. Richards and Joseph T. McCidlough, for defendant in error.
    By section 5441, Revised Statutes, property to the amount of $500.00 was exempt to Mrs. Cunning’ham. And under section 6348, Revised Statutes, should have been set off to her. The bond of an assignee, is intended for his good behavior and an action may be brought thereon by any person injured by his misconduct or breach of duty. Phillips, Assignee, v. Ross, 36 Ohio St., 458.
    The homestead act should be liberally construed. Sears v. Hanks, 14 Ohio St., 300.
    As shown by the testimony this assignee refused to permit the appraisers to set off to Mrs. Cunningham the amount of his property to which she was entitled in lieu of a homestead, but converted it all into money and now has the proceeds. The misconduct becomes the more flagrant when we reflect that this little stock of goods constituted, the entire possessions of this family consisting of husband and wife and four children. Had the set off been made as demanded, but little would have remained in the hands of the assignee and fees for services been small. We think that the charge of the court was especially favorable to the assignee.
   Shauck, J.

We assume that upon the facts alleged in her petition Mrs. Cunningham would have been entitled to an order .setting off to her in lieu of homestead the property demanded, if she had made application therefor to the probate court. The power to make such order in a proper case is conferred upon that court by section 6348, Revised Statutes. Kuhn v. Nieberg, 40 Ohio St., 631.

Omitting to invoke the exercise of that power, she acquisced in the sale of the assigned property by the assignee, and the application of its proceeds to the payment of her debts. The judgment under consideration affirms her right, under such circumstances, to resort to the court of common pleas to recover from the assignee and his sureties the value of property so applied.

In Dwyer v. Garlough, 31 Ohio St., 158, it was held that an assignment for the benefit of creditors did not exclude the jurisdiction of the court of common pleas of a subsequent suit to foreclose a mortgage upon real estate embraced in the assignment, because the statute then in force did not .authorize the probate court to order the premises to be sold free of the inchoate dower of the wife of the mortgagor. The special jurisdiction which the probate court was exercising over the assigned property was not exclusive, because it was not adequate.

The reason for that decision has been regarded in subsequent legislation and 'adjudication. All legislation affecting the jurisdiction of the probate court over assigned property has been with the view to its enlargement. The decisions of this court upon the subject sustain two propositions pertinent to this ease:

1. The filing of the deed of assignment and the qualification of the assignee confer upon the pro-, bate court jurisdiction of all the assigned property.

2. The jurisdiction so conferred is exclusive in all respects in which it is adequate. Sayler v. Simpson, 45 Ohio St., 141; Havens et al. v. Horton Jr., 342, ante.

The authority of the probate court to determine Mrs. Cunningham’s right to the exemption was ample, and the court of common pleas was without original jurisdiction.

Judgments of the circuit and common pleas courts reversed, demurrer sustained and petition dismissed.  