
    Perry et al., Exrs., Appellees, v. Perry et al., Appellants.
    (No. 416
    Decided May 3, 1965.)
    
      Mr. F. M. Marriott, for appellees.
    
      Mr. Fred M. Campbell, for appellants.
   Per Curiam.

This is an appeal filed on questions of law and fact from a judgment of the Probate Court in an action to construe a will. The question upon which construction of the will was sought was:

‘ ‘ Should the inheritance on the property of said estate located in the state of Ohio be paid by the plaintiffs (executors of said will duly appointed by the County Court of Pinellas County, Florida) out of the general assets of said estate, or are the amounts of the inheritance tax found due by the court, claims against the individual and respective defendants herein; and if the latter alternative, is it the duty of plaintiffs to collect inheritance tax from the individual and respective defendants or may plaintiffs omit collecting said tax as executors and allow the same to accumulate with penalty and interest as a lien against the respective tracts of real estate devised to said respective defendants?”

It is onr finding that the primary and paramount relief sought is not within any of the ten classes specified by Section 2501.02 of the Revised Code, and that this court does not have jurisdiction to hear the appeal as an appeal on questions of law and fact.

For analogous decisions in cases decided prior to the enactment of Section 2501.02, Revised Code, effective October 4,1955, see, Crowley, Admr., v. Crowley, 124 Ohio St. 454; Oglesbee v. Miller, Exr., 125 Ohio St. 223; McDiarmid, Trustee, v. McGrew, 43 Ohio App. 449; and Whiting v. Bertram, Sr., et al., Exrs., 51 Ohio App. 40.

When the court is without jurisdiction, the parties cannot confer jurisdiction upon the court by agreement.

For the reasons stated, on the court’s own motion, the appeal will be dismissed as an appeal on questions of law and fact and retained as an appeal on questions of law only. Journal entry shall be submitted accordingly and shall provide that appellant be granted leave to file a bill of exceptions, assignments of error and brief on or before 30 days from the day the entry is filed.

Judgment accordingly.

Rutherford, P. J., McLaughlin and Van Nostran, JJ., concur.  