Opinion
Decided January 29, 1934.
Executors and administrators — Recovery of concealed or embezzled assets, a special proceeding — Cannot be transmuted into equity suit to determine other issues — Decedent's mental incapacity and gifts inter vivos — Sections 10673 and 10674, General Code.
A complaint, filed in the Probate Court by an administrator of a decedent's estate under Section 10673, General Code, asking that the defendant be required to answer under oath concerning the alleged concealment of certain property claimed to be a part of the estate, is a special proceeding and cannot, in reserving the case to the Court of Common Pleas for hearing and determination, under authority of Section 10674, General Code, be transmuted into a suit in equity to receive evidence or determine issues involving the mental incapacity of decedent as pertaining to his intention regarding inter vivos gifts.
ERROR: Court of Appeals for Lucas county.
Messrs. Logan Daugherty and Mr. F.M. Geiger, for plaintiff in error.
Messrs. Tyler, Wilson Rhinefort, for defendant in error.
On April 2, 1926, James Halloran died in Toledo, and on March 29, 1927, D.A. Merritt, the administrator of his estate, filed in the Probate Court of Lucas county, wherein he was appointed, a complaint in the form and for the purpose provided by Section 10673, General Code. In this complaint it is alleged that Aaron J. Halloran, plaintiff in error herein, "has concealed and/or conveyed away certain goods, chattels, things in action and effects of the deceased, namely: registered and unregistered Liberty bonds of the value of more than Thirty Nine Hundred ($3900.00) Dollars and a certain bank deposit and interest thereon of the amount and value of more than Fourteen Hundred ($1400.00) Dollars, which the undersigned is unable, with ordinary diligence to ascertain and describe more definitely than as aforesaid, and for all of the rights of the undersigned and others interested in said estate."
The prayer is that a citation may issue compelling Halloran "to answer under oath touching matters of this complaint."
Thereupon, Aaron J. Halloran demanding a jury, the Probate Court reserved the case to the Court of Common Pleas for hearing and determination, in which court it is provided by Section 10674, General Code, that the case "thereupon shall proceed in all respects as though the complaint had been originally made therein."
No pleadings were filed in either the Probate or Court of Common Pleas, except this complaint, which perhaps technically should not be referred to as a pleading.
It seems apparent that Section 10673, General Code, does not require or contemplate the filing of anything in the proceedings brought thereunder except a complaint such as was filed in the instant case.
The evidence submitted at the hearing thereafter had in the Court of Common Pleas affirmatively shows that Aaron J. Halloran resided and now resides in Springfield, and was a grandson of the decedent; that some time prior to his death the decedent went to Springfield and personally delivered to his grandson, Aaron, the property which is the basis of the complaint upon which the hearing was had. Aaron claimed and testified that his grandfather gave him the property in controversy, and the testimony of other witnesses tended to support the claim so made.
The administrator called witnesses, physicians and others, to prove that James Halloran was of unsound mind at and prior to the time of the claimed gift, and therefore had not the mental capacity to make a valid gift, and plaintiff in error thereupon offered evidence tending to show that his grandfather was of sound mind and in all respects mentally capable of disposing of his property.
The only issue presented by the evidence adduced at the hearing was whether or not the property delivered by James Halloran to his grandson was intended to be, and was in fact, a gift, and bore no relation to the charge made in the complaint. As presented, the proceedings assumed the character of a suit in equity, whereas in fact the proceedings were special and summary in nature, not a civil action within the meaning of the Code, and were limited to the purposes specified in the statute. Moreover the Probate Court is a court of limited jurisdiction, and the limited purposes of the complaint were not enlarged by the filing thereof and the hearing had thereon in the Court of Common Pleas.
The questions asked of the first witness by counsel for the administrator related to the mental condition of the decedent and clearly show that counsel were aware of the question to be determined. Counsel for plaintiff in error called the attention of the court to the incongruity of thus proceeding, by saying:
"I wish to make a motion to have all testimony of this witness stricken from the record on the ground it is not responsive to the allegations of the complaint and has no reference at all to either any concealment or carrying away of bonds. It is simply an attempt to show that the deceased was insane or mentally incapacitated, which is not in this case at all."
This motion was overruled, to which ruling the plaintiff in error duly excepted.
Thus the hearing assumed the aspect of a trial of a civil action over the protest of plaintiff in error instead of the hearing contemplated by Section 10673, General Code. Our conclusion is that there was no warrant or justification for so anomalous a proceeding, and that the court was without power or authority to transmute a special proceeding limited to the purposes enumerated in Section 10673, General Code, into a suit in equity.
The judgment of the Court of Common Pleas is therefore reversed and the cause remanded thereto for further proceedings according to law.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur.