Guardianship of Love, In re

• Decision Date: 09 July 1969
• Docket Number: No. 69-17,69-17
• Citation: 249 N.E.2d 794,48 O.O.2d 107,19 Ohio St.2d 111
• Parties: , 48 O.O.2d 107 In re GUARDIANSHIP OF LOVE. LOVE, Appellee, v. TUPMAN, Gdn., Appellant.
• Court: Ohio Supreme Court

Page 111

19 Ohio St.2d 111

249 N.E.2d 794, 48 O.O.2d 107

In re GUARDIANSHIP OF LOVE LOVE, Appellee, v. TUPMAN, Gdn., Appellant.

No. 69-17.

Supreme Court of Ohio.

July 9, 1969.

Syllabus by the Court

A guardian of a mentally incompetent ward does not have a right of appeal, under Section 2101.42, Revised Code, from an order of the Probate Court terminating the guardianship pursuant to the provisions of Section 2111.47, Revised Code, upon satisfactory proof that the ward has regained his mental competency and the necessity for the guardianship has ceased to exist, where the record does not reflect any interest of the guardian adverse to the ward in such order of termination, or show that the guardian has been aggrieved in any manner by the order of termination.

This cause has been certified to this court by the Court of Appeals for Wayne County by reason of its decision dismissing the appeal of a guardian from an order of the Probate Court of Wayne County upon the basis that such dismissal is in conflict with the judgment rendered by the Court of Appeals for Knox County in the case of In re Guardianship of Robinson (1915), 35 Ohio Cir. Dec. 156.

The factual situation reveals that, upon the application of Mary Tupman, appellant herein, Jesse M. Love was declared an incompetent person, for reasons of physical and mental disability, by the Probate Court of Wayne County. Thereupon, Mary Tupman was appointed guardian of his person and property on March 3, 1966.

On October 2, 1968, the same court, after hearing, found that Jesse M. Love had recovered from his mental disability and was restored to reason and terminated the guardianship. Thereupon, Jesse M. Love chose a new guardian of his property and his selection was appointed by the Probate Court. Mary Tupman then appealed from the order finding that Jesse M. Love had regained his mental competency and terminating her guardianship.

Critchfield, Critchfield, Critchfield & Johnston and Henry Critchfield, Wooster, for appellee.

Richard Kauffman and F. Emerson Logee, Wooster, for appellant.

CORRIGAN, Judge.

(Because of the inability, 'by reason of illness,' of Justice CHARLES B. ZIMMERMAN 'to hear, consider and decide' this cause, Judge CORRIGAN of the Eighth Appellate District was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice 'to sit with the justices of the Supreme Court in the place and stead of' Justice ZIMMERMAN, and Judge CORRIGAN did so and heard and considered this cause prior to the decease of Justice ZIMMERMAN on June 5, 1969.) The exclusive question presented in this appeal is whether a guardian of the person and estate of an incompetent has a right to appeal from an order of the Probate Court which appointed her, and which order finds the ward to have regained his mental competency and terminates the guardianship, in a situation where no interest adverse to the ward is involved in such order of termination.

Thus, the complaint of the guardian in this appeal is that she is not permitted to continue in control of the person and estate of Jesse M. Love, even though the Probate Court found, after hearing, that the former ward was restored to reason.

The application to terminate the guardianship was filed in the Probate Court under favor of Section 2111.47, Revised Code.

The decisions in three cases decided by this court seem to be pertinent to a determination of the issue before us.

First, in the case of In re Clendenning (1945), 145 Ohio St. 82, 60 N.E.2d 676, this court held that the Probate Court has plenary, exclusive and original jurisdiction in the matter of the appointment and removal of guardians, and that such proceedings are not inter partes or adversary in character, but are proceedings in rem.

Second, in the case of In re Guardianship of Breece (1962), 173 Ohio St. 542, 184 N.E.2d 386, paragraph two of the syllabus reads:

'The sole issue before the court in a proceeding to terminate the guardianship of an incompetent is whether the ward has presented 'satisfactory proof that the necessity for the guardianship no longer exists,' and, where such 'satisfactory proof' is presented, the court is under a mandatory duty to terminate the guardianship.'

Third, it is well established in Ohio that an appeal lies only on behalf of a party aggrieved. Such party must be able to show that he has a present interest in the subject matter of the litigation and that he has been prejudiced by the judgment of the lower court. Ohio Contract Carriers Assn., Inc., v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 42 N.E.2d 758; 2 Ohio Jurisprudence 2d 765, Appellate Review, Section 161.

In the light of those cases, two conclusions follow. In the first place, it is clear that the proceedings in the Probate Court were nonadversary in nature and involved no one but the court and Mr. Love. Therefore, cases cited by appellant, involving actions for removal for cause of guardians and other fiduciaries, are distinguishable from this case. Secondly, it is evident that the guardian, Mary Tupman, had no true interest in the subject matter of the instant proceeding, nor was she prejudiced by the...