
    In re Estate of Morrison: Morrison, Appellee, v. Morrison et al., Appellants.
    (No. 33045
    Decided April 29, 1953.)
    
      
      Messrs. Shumaker, Loop & Kendrick and Mr. Malcolm B. Barney, for appellee.
    
      Messrs. Ohlinger, Koles, Wolf & Flues, for appellants.
   Zimmerman, J.

Does the Probate Court have jurisdiction to determine a matter of this kind? We agree with the Court of Appeals that it does.

Section 8, Article IV of the Constitution of Ohio, provides:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county, or counties, as may be provided by law. ’ ’

Section 10501-53, General Code, recites that the Probate Court shall have jurisdiction—

“3. To direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates;

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“12. To render declaratory judgments;

“13. To direct and control the conduct of fiduciaries and settle their accounts.”

Such section provides further that “the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute. ’ ’

Moreover, Section 12102-1, General Code, a part of the Declaratory Judgments Act, reads :

“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * * ”

And Section 12102-4, General Code, states:

“Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto:

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“(c) To determine any question arising in the administration of the estate or trust * * *.”

The estate of the decedent is properly in the Probate Court for administration and settlement. Essentially involved in the controversy before us is a question as to the title to and the status of certain personal property — whether it properly belongs to the estate and should be administered as a part thereof or whether the decedent effectually disposed of such property during his lifetime through the declaration of trust.

This court has recognized that matters of this sort, involving the title and rights to property, which arise in the settlement of decedents’ estates are initially within the jurisdiction of the Probate Court and are determinable by that tribunal. No sufficient reason appears to abandon that position. See Streeper, Admr., v. Myers, 132 Ohio St., 322, 7 N. E. (2d), 554, and Bolles v. Toledo Trust Co., Exr., 136 Ohio St., 517, 521, 27 N. E. (2d), 145, 147.

In our opinion the amended petition presents a justiciable controversy within the cognizance of the Probate Court. What determination that court may make of the matter is another question with which this court has nothing to do at this time.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Weygandt, C. J., Middleton and Stewart, JJ., concur.

Taft, Matthias and Hart, JJ., dissent.

Taft, J.,

dissenting. This cause was heard in the Probate Court on a demurrer to plaintiff’s amended petition. The grounds of the demurrer were:

“1. That the court has no jurisdiction of the subject of the action.

“2. That the amended petition does not state facts which show a cause of action.”

The Probate Court sustained that demurrer without stating either in its journal entry or by opinion the ground upon which it was sustained. The journal entry recited that, the plaintiff not desiring to plead further, “the petition of the plaintiff * * * is dismissed at plaintiff’s cost.”

The Court of Appeals reversed the judgment of the Probate Court and ordered that court to overrule the demurrer. In its opinion, it recognized the necessity of determining whether the amended petition stated a cause of action and held, on the authority of Bolles v. Toledo Trust Co., Exr., 144 Ohio St., 195, 58 N. E. (2d), 381, 157 A. L. R., 1164, and Harris v. Harris, a Minor, 147 Ohio St., 437, 72 N. E. (2d), 378, that it did.

For the reasons stated by Zimmerman, J., in his dissenting opinion in the Harris case and the reasons stated in the dissenting opinion by Matthias, J., concurred in by Hart, J., in the same case, I am of the opinion that the amended petition stated no cause of action. See, also, Union Trust Co. v. Hawkins, Admr., 121 Ohio St., 159, 167 N. E., 389, 73 A. L. R., 190; Cleveland Trust Co., Trustee, v. White, 134 Ohio St., 1, 15 N. E. (2d), 627, 118 A. L. R., 475; Central Trust Co. v. Watt, 139 Ohio St., 50, 38 N. E. (2d), 185; and Section 8617, General Code.

Furthermore, since the trust described in that amended petition was irrevocable, unlike those involved in the decisions in the Bolles and Harris cases, neither the majority opinions nor the decisions in those cases would justify the conclusion that the amended petition in the instant ease stated a cause of action.

Matthias, J., concurs in the foregoing dissenting opinion.

Hart, J.,

dissenting. The right of the estate to recover the property in question depends upon the validity of an inter vivos trust created by Frank B. Morrison in his lifetime. This action is to declare that trust invalid, and involves issues triable to a court of general jurisdiction and possibly to a jury. In my opinion, for these reasons the Probate Court does not have jurisdiction.  