
    Hawkins, Appellant, v. Hawkins, Appellee, et al.
    (No. 38304
    Decided July 8, 1964.)
    
      
      Mr. John O. Roberts and Mr. Lad, J. Roth, for appellant.
    
      Mr. Raymond E. Cookston and Mr. Owen Calvin Neff, for appellee.
   Herbert, J.

Two issues are presented to this court for determination. First, whether the Court of Appeals properly denied a review on questions of law and fact in an action for a declaratory judgment to set aside an antenuptial agreement and allow the surviving spouse to take her statutory share of the decedent’s estate. Second, whether a surviving spouse, as a protected party pursuant to Section 2317.03, Revised Code, may waive the incompetency of the personal representative of the deceased spouse and require him to testify as to events which occurred prior to the decedent’s death.

Turning to the first issue, prior to 1955 courts determined whether an appeal involved “questions of law and fact” or “questions of law” only. Upon reaching such determination courts allowed appeals on law and fact in chancery cases and appeals on law only in the remaining cases. See, e. g., Westerhaus Co., Inc., v. City of Cincinnati (1956), 165 Ohio St., 333; Bradford et al., Admrs., v. Micklethwaite (1955), 163 Ohio St., 301.

In 1961, the Gfeneral Assembly amended Section 2501.02 of the Revised Code by making style deviations bnt not otherwise changing the effect of the statute which conferred additional jurisdiction upon the Courts of Appeals as follows:

“* * * in addition to the original jurisdiction conferred by Section 6 of Article IY, Ohio Constitution, the court shall have jurisdiction.

< < * * *

“Upon an appeal on questions of law and fact the Court of Appeals * * * shall weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case, in the following classes of actions, seeking as a primary and paramount relief:

C i # * *

“(6) The reformation and cancellation of instruments in writing;

i i # # *

“In all cases not falling within the classes designated above the Court of Appeals shall have jurisdiction to proceed as in an appeal on questions of law only.” (Emphasis added.)

It is apparent now that the determination of the question whether an appeal is one on questions of law and fact or on questions of law only is entirely controlled by statute. Section 2501.02 of the Revised Code. Decisions prior to this legislative enactment are no longer controlling in this area.

If the relief sought here is “primary and paramount” and designated in one of the ten classes set out in the statute, then the Court of Appeals should have allowed an appeal on questions of law and fact; if otherwise, then it was proper to consider the appeal on questions of law only.

In the instant case, appellant, in her petition, prays that the Probate Court “enter a declaratory judgment determining that the purported antenuptial agreement signed on November 18, 1952, between this plaintiff and Robert L. Hawkins, Sr., deceased, is invalid and void and of no effect and that plaintiff is entitled to her intestate share of the estate of decedent as provided by the statutes of the state of Ohio, and for her costs.”

Appellant contends that she seeks as “primary and paramount relief” the cancellation of a written instrument under subparagraph 6 of Section 2501.02, Revised Code, so as to qualify for an appeal on questions of law and fact. We believe that the primary and paramount relief sought by the appellant is to be awarded her statutory share of the decedent’s estate under the provisions of Sections 2105.06 and 2107.39 of the Revised Code. Appellant is required to make such an election within the prescribed time limits set out in Section 2107.39, Revised Code, and in the event of failure to do so such spouse is conclusively presumed to have elected to take under the will. Section 2107.41, Revised Code. The election must be made in person by the appellant before the probate judge or his designated deputy. Section 2107.43, Revised Code. There are potentially other obstacles in the way of the appellant before she would be entitled to a share in the estate in the event that the antenuptial contract is held invalid. In short, appellant here has attempted to institute a proceeding to secure a declaratory judgment to determine whether she will share in the decedent’s estate. The primary and paramount relief sought is that the Probate Court declare that appellant is entitled to share in the decedent’s estate. This relief does not fall within the classes of actions designated in Section 2501.02, Revised Code, and hence is not within the jurisdiction of the Court of Appeals on questions of law and fact, and, therefore, her appeal must become one of law only.

Appellant’s second contention is also not persuasive. This court has previously ruled that such a person can not be called to testify. Verbsky v. Burger (1946), 146 Ohio St., 235.

Contrary to appellant’s argument, the subsequent decisions in In re Renee (1953), 159 Ohio St., 37, and In re Scholl (1959), 170 Ohio St., 205, have not eroded or diminished the strength of the rule laid down in paragraph two of the syllabus in the Verbsky case, which reads:

“Under the provisions of that section [present Section 2317.03, Revised Code] a party is prohibited, over objection, from examining an adverse party as if under cross-examination when one of the adverse parties is an administrator or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person.”

In In re Scholl, in his concurring opinion, Taft, J., said:

“* * * the desirability of equal treatment for all litigants and the desirability of some certainty as to what the law is, that are the basic reasons for the doctrine of stare decisis, require the adherence by this court to that holding [In re Renee]. It may be observed that the General Assembly has had over six years to change the law as announced in that holding but has not done so. ’ ’

It is now 18 years since the Verbsky decision was handed down. The General Assembly has not seen fit to change the ruling contained therein.

Therefore, under the provisions of Section 2317.03, Revised Code, appellant may not, over objection, examine a co-executor, an adverse party, as if under cross-examination.

For the aforementioned reasons, the judgment of the Court of Appeals is hereby affirmed.

Judgment affirmed.

Zimmerman, Matthias, O’Neill and Grieeith, JJ., concur.

Taet, C. J., and Gibson, J., concur in paragraph three of the syllabus and in the judgment.

Taet, C. J.,

concurring. This opinion is written because I cannot agree with the conclusion of the majority that the Court of Appeals properly denied a review on questions of law and fact.

After the 1944 amendment of Section 6 of Article IY of the Ohio Constitution and before the amendment in 1955 of Section 2501.02, Revised Code (126 Ohio Laws, 56 — subsequently amended in 1961 — 129 Ohio Laws, 582, 742), so as to delineate the appellate jurisdiction of the Courts of Appeals, it was generally held by a majority of this court that the right of a Court of Appeals to hear an appeal on questions of law and fact was dependent upon whether it was a ‘ ‘ chancery case. ’ ’ See Youngstown Municipal Ry. Co. v. City of Youngstown (1946), 147 Ohio St., 221, 70 N. E. (2d), 649; Meyer v. Meyer (1950), 153 Ohio St., 408, 91 N. E. (2d), 892; Connelly, Trustee, v. Balkwill (1954) , 160 Ohio St., 430, 116 N. E. (2d), 701; Westerhaus Co. v. City of Cincinnati (1956), 165 Ohio St., 327, 135 N. E. (2d), 318; Sessions, Trustee, v. Skelton (1955), 163 Ohio St., 409, 127 N. E. (2d), 378; Bradford et al., Admrs., v. Micklethwaite (1955) , 163 Ohio St., 301, 127 N. E. (2d), 21; In re Estate of Yost (1955), 163 Ohio St., 593, 128 N. E. (2d), 12.

Since the amendment of that statute, it is no longer necessary to consider any such question. In determining whether an appellant is entitled to an appeal on questions of law and fact, it is now only necessary to determine whether the action is one of those specified in Section 2501.02, Revised Code. See Humphrys v. Putnam (1961), 172 Ohio St., 456, 459, 178 N. E. (2d), 506.

In my opinion, the instant case is such an action because it seeks “as a primary and paramount relief * * * cancellation of * * * [an instrument] in writing.” The right to enjoy the surviving spouse’s statutory share of the decedent’s estate is only the consequence of the cancellation of the written ante-nuptial agreement.

A judgment will not be reversed for an error that is not affirmatively shown to have prejudiced the one seeking reversal of the judgment.

Section 6 of Article IV of the Constitution, as amended in 1944, provides that the Courts of Appeals “shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * # of courts * *

An examination of the statutes defining jurisdiction of the Courts of Appeals indicates that the only rights that an appellant would lose if a Court of Appeals refused to hear his appeal as one on questions of law and fact are:

(1) The right to have the Court of Appeals “weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case.” Section 2501.02, Revised Code.

(2) The right to amend pleadings. Section 2505.21, Revised Code.

(3) The right to offer “such additional evidence as upon application in the interest of justice the Court [of Appeals] may authorize to be taken.” Section 2505.21, Revised Code.

Where, as in the instant case, the Court of Appeals has not previously reversed the judgment of a trial court in a nonjnry case on the weight of the evidence (two of the three judges may do so in a nonjnry case [Hnizdil v. White Motor Co. (1949), 152 Ohio St., 1, 87 N. E. (2d), 94], but cannot do so more than once [Section 2321.18, Revised Code]), it has the same duty to weigh the evidence in an appeal on questions of law as in an appeal on questions of law and fact. The only difference is that, if it finds the judgment of the trial court against ihe weight of the evidence, the Court of Appeals cannot substitute its judgment for that of the trial court in an appeal on questions of law only. See Henry v. Henry (1952), 157 Ohio St., 319, 105 N. E. (2d), 406.

In the instant case, it does not appear that the appellant had any inclination whatever to either amend her pleadings or offer additional evidence. Likewise, the Court of Appeals did not find the judgment of the trial court to be against the weight of the evidence. Hence, it does not appear affirmatively that appellant was prejudiced by the failure of the Court of Appeals to hear this appeal as one on questions of law and fact. Thus, its error in refusing to do so would not justify a reversal of its judgment.

Gibson, J., concurs in the foregoing concurring opinion.  