Opinion
Decided March 14, 1932.
Court of Appeals — Chancery case — Proceeding by testamentary trustee not appealable — Determination of heirs entitled to principal of estate.
Proceeding by testamentary trustee requesting determination of who were heirs entitled to principal of estate, not requiring construction of will or trust, held not to involve chancery question and hence was not appealable to Court of Appeals.
APPEAL: Court of Appeals for Hamilton county.
Mr. Thomas D. Slattery, for plaintiff.
Mr. Joseph O'Meara, Jr., for defendants Mollie McGrew and John D. Gates.
Mr. Willard Brunsman, for defendants Clarence W. McGrew, Norman W. McGrew, and Helen Charlton.
Plaintiff, C.J. McDiarmid, testamentary trustee, filed his petition in the court of common pleas against the defendants, in which he asked the construction of the will of Sallie B. Williams, deceased. The portion which he asked to be construed is item C of the second paragraph of the will, which provides: "c. He (my trustee) shall set apart out of my estate the amount of five thousand dollars ($5000.00) and invest the same for the benefit of my sister-in-law Clara D. McGrew and pay to her the net income thereof quarterly, or oftener if he deems best during her life, and at her death the principal shall be paid in equal shares to her children or their heirs, respectively."
The common pleas court construed the will, and from its judgment defendants Clarence W. McGrew, Norman W. McGrew, and Helen Charlton appeal to this court.
The first question confronting this court is whether or not there is any right of appeal in the case, and is, therefore, jurisdictional.
The jurisdiction of this court to hear a case on appeal is defined in the Constitution and is limited to chancery cases. While questions involving the construction of trusts are cognizable in chancery, does the case under consideration involve that question?
The item in question sets apart $5,000 from decedent's estate to be invested for the benefit of Clara D. McGrew, the income to be paid to her during her life "and at her death the principal shall be paid in equal shares to her children or their heirs, respectively."
It appears that Clara D. McGrew had five children at the time of the taking effect of the will. She died, leaving three of the children, the appellants here, surviving her.
Stanley McGrew died prior to the death of his mother, Clara D. McGrew, leaving no children, but leaving his wife, Mollie McGrew, surviving.
Nora McGrew died prior to the death of her mother, without children, leaving her husband, John D. Gates, surviving.
There is no construction of a trust presented. Neither is the construction of the will required.
The proposition presented is nothing more than the request that the court find who are the heirs to receive the principal of the legal estate.
Our conclusion is that there is no chancery question involved. The appeal will be dismissed. See Crowley, Admr., v. Crowley, 124 Ohio St. 454, 179 N.E. 360.
Appeal dismissed.
ROSS, P.J., and CUSHING, J., concur.