
    Hollrah v. Lasance et al.
    
      Will — Order of prolate court admitting paper as will — Not reviewable on petition in error — Refusal to admit is reviewable,
    
    An order of tlie 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. (Missionary Society v. Ely, 56 Ohio St., 405, distinguished from Hosier v. Harmon, et at, 29 Ohio St., 220.)
    (Decided May 22, 1900.)
    Error to the Circuit court of Hamilton county.
    On December 7, 1897, upon application by Herman Lasance, due notice thereof having been given to William Hollrah, the only person interested in resisting the order, the probate court of Hamilton county made an order establishing and admitting to probate the lost last will and testament of Frederick Augustus Lasance, its finding being:
    
      “That in his lifetime, and when of full age and sound mind and memory, and not under restraint, he made a last will and testament, and duly executed the same according to the law in force at that time. That said last will and testament was in existence and unrevobed subsequent to the decease of said testator; that the same has been since lost; that a true, full and correct copy of said will has been produced in open court; that the contents of said will are correctly and truly shown in said copy; and that the court doth hereby find and establish the contents of said will to be as stated as follows:
    (Then follows a copy of the will.)
    A bill of exceptions was taken setting out all the evidence offered in the probate court. A petition in error was filed in the common pleas court praying for a reversal of said order because of error in the admission of evidence in support of the application, because the evidence was not sufficient to justify the order, and because tbe probate court was without jurisdiction to make it.
    Herman Lasance and others interested in sustaining the order moved the court of common pleas to dismiss the petition in error upon the ground that the order of the probate court was not reviewable on petition in error. This motion the common pleas court overruled; but upon consideration of the record it affirmed the order of.the probate court and rendered judgment against the plaintiffs in error for costs.
    Plaintiffs in error then filed a petition in error in the circuit court for the reversal of the judgment of the court of common pleas. The circuit court, being of the opinion that the common pleas court was without jurisdiction to review the order of the probate court, and that it had therefore erred in affirming the order and in rendering judgment against the plaintiffs in error for costs, reversed the judgment of the common pleas and remanded the cause to that court with the direction to dismiss the petition in error which had been there filed. The plaintiffs in error, still insisting that the order of the probate court shall be reversed, file their petition in error here.
    
      George TV. Hengst and TV. A. Hicks, for plaintiff in error.
    Plaintiff in error contends (1st) that the circuit couid erred in finding 'that the common pleas court had no jurisdiction and ordering it to strike petition in error from the record. (2d) The circuit court erred in not finding that there was no competent legal evidence to probate this will, and therefore not reversing the probate and common pleas courts.
    As to the jurisdiction, we claim that error lies to this proceeding because same is an order affecting a substantial right in a “special proceeding,” and section 6707, Revised Statutes, provides, - * * “an order affecting a substantial right * * * made in a special proceeding * * * may be vacated, modified or reversed.” * * *
    It needs no argument to show that the order of the . probate court, which takes the property which plaintiff in error would inherit from him and give it to others, is an order affecting his. -substantial right. That this is a special proceeding, and error lies. Missionary Society v. Ely et al., 56 Ohio St., 405.
    Again, it seems that the case of Mosier v. Harmon, 29 Ohio St., 220, if not directly overruled by-the conclusion of this case (56 Ohio St., 405); its value as. an authority for the defendants in error is greatly weakened, because the latter decision is entirely inconsistent and can not be reconciled with the former,. and the latter seems to be in harmony with the principles of justice and right.
    In. the restoring of a lost will and testament, we maintain that the probate court acts in a dual capacity, viz.:
    First — In deciding whether or not such a will ever existed and was in existence after the death of such testator, and was duly attested and executed, and was lost, spoliated, or destroyed subsequent to his death.
    Second — If the court should find that there was such a will and in existence after the death of the testator, then it is the duty of the court to inquire into the facts wb ether or not, that at the time of executing the same, the testator was of full age, and of sound mind, and memory, and not under any restraint.
    In the case before us, we only have to deal with the first proposition. Does the testimony show, viz.:
    First — Was there ever such a will as that as is set forth in the copy?
    Second — If so, did it exist after the death of Frederick Augustus Lasance?
    Third — If so, wTas it duly attested and executed?
    These are jurisdictional facts, and must exist before the court of probate can entertain the subject matter of probating a will.
    Sections 5944 to 5948, Revised Statutes, provide for the admission of lost wills to probate.
    These are special provisions and must be followed, •as prior to the enactment of these sections there was no authority in the courts to admit a lost will to record. Morning Star v. Selby, 15 Ohio, 345; Sinclair’s Will, 5 Ohio St., 291.
    In Bougart v. Miller, 26 Ohio St., 541, the Supreme Court alloxmd error to probate court in an application similar to this case. The Supreme Court held that the provision of the statute had not been complied with, because proper notice was not given, i. e.,. the court did not have jurisdiction because the-statute was not followed. Want of notice can not be more fatal to jurisdiction than want of a subject matter, viz.: the existence of the will after death; and this question is raised by the record herein, and plaintiff contends that record shows no jurisdiction, because no will existed after testator’s death, and claim that this court has authority to examine record forth is question.
    But under the provisions allowing the probate of a lost or destroyed will we have no section similar to section 5927, because the signatures cannot be produced. For that reason we contend it is necessary that the witnesses must be produced and their testimony taken. If they are dead there is no way in-which such a will can be established. It would be too vague and uncertain proof, and would open the door-to too much fraud and misconduct, which could not. be detected.
    The fact that a will is lost does not do away with proof of compliance with the statutory requisite of execution; these must be proved as if the will, were in existence. Section 5946, Revised Statutes; Grant v. Grant, J. Sandf. Ch., 235 (N. Y.); Mercer v. Mackin, 14 Bush., 434 (Ky.); Chisholin v. Ben, 7 B. Mon., 408 (Ky.); Davis v. Sigourney, 8 Met., 487 (Mass.).
    The existence, loss and due execution of the original will must be first proved. Am. and E. Enc. of Law, Vol. 13, p. 1091.
    Due execution of a lost will must be shown, just as in case of an existing will offered for probate. Redfield on Will, Vol. 3, p. 15; Jarmin on Will, p. 92, 6th Ed.; Collyer v. Collyer, 4 Dem. N. Y., 53, 17 Abb. (N. Y.), N. Cases, 328.
    O. F. Dwyer and A. M. Warner, for defendants in error.
    Our contention is, that the decision of the circuit court should be affirmed, upon the authority of Mosier v. Harmon, 29 Ohio St., 220. The jurisdiction of the probate court was properly invoked, and the proceedings therein were regular, and in compliance with the statute. Notice, as required by section 5945, Revised Statutes, was duly given. Evidence was presented tending to show the due execution of the will, and that the testator was of sound mind and memory at the time he made same; that the will was lost subsequent to the death of the testator; that it was in existence after the death of the testator unrevoked, and in the hands of counsel and the contents were shown by an exact copy of said will, put in a solemn contract under seal, settling the personal estate of the testator, out of court, as between his widow and his brothers and sisters. This contract was carefully prepared by eminent counsel, and carried out by the widow. Under these circumstances it is apparent that the principles announced in Mosier v. Harmon, supra, fully apply, if the same rule applies in this ;ase, as in the case of other wills.
    Section 5948, Revised Statutes, last clause, provides as to the effect of lost wills when established and probated.
    The only mode then of contesting this will is that provided in section 5858, Revised Statutes, by civil action in common pleas court.
   SlIAUCK, O. J,

Jurisdiction to admit to probate any lost will under the circumstances found in this case is conferred upon the probate court by sections 5944 to 5948 of the Revised Statutes. The effect of the order made by the probate court in the exercise of the authority so conferred is defined in section 5948: “The contents of any such last will and testament so found, established and admitted to probate as aforesaid, shall be effectual to pass real and personal estate and for all other purposes as if the original will had been admitted to probate and record, according to the provisions of this title; and such wills shall, in all respects, be governed by the laws in force relating to other wills not only as relates to the contest of the same, but in all othér matters.”

It seems quite clear from the provisions of this section that an order admitting a lost or spoliated will to probate can be annulled or revoked in no other manner than that prescribed with respect to orders admitting to probate wills not lost or spoliated. It is provided in section 5858 that “a person interested in a will or codicil admitted to probate in the probate court, or the court of common pleas on appeal, may contest the validity thereof in a civil action in the court of common pleas of the county in which such probate was had.” With reference to the same subject it is provided in section 5933, Revised Statutes, that “If no person interested [shall] within two years after probate liad, appear and contest the validity of the will, the probate shall be forever binding,” with a saving in favor of persons under disabilities.

These provisions require the conclusion that the contest in the court of common pleas authorized by section 5858 is the only mode of revoking an order admitting a will to probate. These sections were so construed in Mosier v. Harmon et al., 29 Ohio St., 220.

It is said, however, that a different view of the subject was taken in Missionary Society v. Ely, 56 Ohio St., 405. The cases are distinguished by the fact that the order which we there held to be subject to review on a petition in error was an order refusing to admit an alleged will to probate. The importance of this distinguishing fact appears when it is observed that the statute providing for the contest of a will has no application to a case in which the will is not admitted to probate. An order admitting a will to probate brings the case within the exclusive remedy by contest ; while an order refusing to admit it excludes the case from the statute which prescribes that remedy, and this ground of distinction Avas pointed out in the •case lastly cited.

Judgment affirmed,  