Opinion
No. 949
Decided November 30, 1948.
Wills — Probate of lost will — Separate findings of fact and conclusions of law — Section 11421-2, General Code, inapplicable.
Section 11421-2, General Code, providing for separate findings of fact and conclusions of law, has no application to a proceeding in the Probate Court to probate a lost will.
APPEAL: Court of Appeals for Butler county.
Mr. George S. Hawke, for appellant.
Mr. Mark T. Brown, for appellee.
The Probate Court dismissed an application under favor of Section 10504-35 et seq., General Code, to admit to probate the purported last will of Mary M. Hughes, deceased. The will was alleged to have been lost before the death of the testatrix, without knowledge of such loss on her part. Therefore, under Section 10504-35, General Code, it was incumbent upon the appellant to prove that there was a will, duly executed, and unrevoked at the death of the testatrix, and, in addition, to prove by clear and convincing testimony lack of knowledge on the part of the testatrix as to the loss.
The hearing was conducted ex parte, with the testimony of the witnesses, who were also under cross-examination, reduced to writing and forming the record before the court.
In its journal entry the court found that the proponent "has failed to supply the necessary clear and convincing evidence to warrant the court to admit the same to probate. The court therefore finds that said application to probate should be denied." The application was dismissed at cost of applicant.
The transcript indicates that the proponent requested the court to state in writing its conclusions of fact found separately from the conclusions of law. This was not done prior to the final entry appealed from, although written findings were filed nunc pro tunc in the Court of Appeals. This filing the court considers too late and a nullity.
The failure of the court to make the requested finding in time is assigned as error here.
Section 11421-2, General Code, appears in Part Third, Title IV (Procedure in Common Pleas Court), which title contains, inter alia, three divisions, to wit, General Provisions, Civil Actions and Trial. The application of such section is therefore limited to the Common Pleas Court, unless otherwise provided by law or in this instance the Probate Code.
The Probate Code, in Section 10501-22, General Code, provides:
"* * * The provisions of law governing civil proceedings in the Court of Common Pleas, so far as applicable, shall govern like proceedings in the Probate Court when there is no provision on the subject in this act. * * *" (Italics supplied.)
The probate of wills is exclusively the function of the Probate Court, its procedure in such a matter being ex parte in character, not adversary, and there are no like proceedings in the Common Pleas Court.
We, therefore, conclude that Section 11421-2, General Code, has no application to the probate proceeding here under consideration. It follows that, since no right to such a finding exists, error may not be predicated upon a failure or refusal to grant the request.
It was held in Louisville N. Rd. Co. v. City of Cincinnati, 10 N.P. (N.S.), 594:
"Inasmuch as the provision of Section 11470, with reference to findings when the court tries the case, is limited to the Court of Common Pleas, a separate finding of facts and law cannot be asked as a matter of right in connection with a preliminary hearing in a condemnation proceeding in the Court of Insolvency."
This court has carefully examined all the testimony contained in the record and is in accord with the finding and judgment of the Probate Court, which judgment is, therefore, affirmed.
Judgment affirmed.
MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.