
    McCANN, ESTATE OF, In Re
    Probate Court, Licking Co
    
      EDITOR’S NOTE: — We are advised that this decision was affirmed by the Court of Appeals on September 8, 1941.
   OPINION

By ASHCRAFT, J.

This case came into this Court- on the complaint of Burton. J. Gardner, Administrator of the estate of Robert P. McCann, deceased v Lewis McCann, suspected of concealing and converting away assets of the estate.

This action, as provided for in §10506-67 GO,

“Upon complaint made to the Probate Court or Common Pleas Court of any county by a fiduciary, creditor, devisee. legatee, heir or other person interested in the trust estate, or by the creditor of any devisee, legatee, heir, or other person interested in the trust estate, against the fiduciary or any other person suspected of having concealed, embezzled or conveyed away or of being or having been in the possession of any moneys, goods, chattels, things in action, or effects of such estate, said court shall cite the person so suspected forthwith to appear before it to be examined, on oath, touching the matter of- the complaint. The Probate Court shall also have power to initiate proceedings on its own j motion.”

. The defense to this action is made .that a gift of Three thousand dollars ($3000.00) was made by Robert P. Mc-Cann to Lewis McCann.

After a full and complete hearing, this case was submitted to the Court upon the evidence, testimony, exhibits and. briefs of counsel, and the law; and after a careful .examination .of all the authorities cited, by counsel on both sides, the Court is of the opinion that Robert P. McCann did not intend to, and did not make a gift of the $3000.00 to his brother Lewis McCann.

' The testimony shows that Robert P. McCann had full faith and confidence in his brother Lewis McCann, and the Court is of the opinion that Robert P. McCann placed this money with his brother Lewis McCann - in trust, to be divided three ways:

1/3 to Lewis McCann
1/3 to the Gardner heirs
1/3 to Dr. C. L. McCann

believing that he could escape the costs of administration.

The Court does not care to comment on the burning and destroying of the papers belonging to this estate by all the parties hereto, except to say ■ that the three paper writings of. instructions in three separate envelopes, which lay on the table in the Lewis McCann home, addressed — one to Lewis McCann, one to the Gardners, and one to Dr. C. L. McCann, were burned the next morning by Mrs. Ida McCann, wife of Lewis McCann. Some of the testimony shows that these written instruments were copied on Will forms and notarized by a notary public; one witness testified that Robert P. McCann’s name was on some of the instruments.

The transcript of testimony- will not show that these three paper writings were burned and destroyed but admission wras made by counsel for Lewis McCann that Ida McCann, his wife, burned these three written instruments believing they were not Wills.

Whereupon, the Court finds, that it is the judgment hereof, that said Lewis McCann and Ida McCann, his wife, are guilty of having concealed the following moneys, belonging to the Estate of Robert P. McCann, deceased, to-wit:

The sum of Three Thousand Dollar» ($3000.00).

It is therefore ordered, adjudged and decreed, by this Court, and a judgment is hereby rendered against Lewis Mc-Cann and Ida McCann, iii the amount of $3000.00 in favor of the adminstrator, together with the costs and penalty of 10% as provided by law.

You will please draw your entries accordingly.

Exceptions noted.  