In re Murnan's Estate
| Decision Date | 15 June 1949 |
| Docket Number | 31690. |
| Parties | In re MURNAN'S ESTATE. SPELLMAN v. KILBOURNE. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. By virtue of the provisions of Section 10510-46, General Code, the Probate Court has exclusive jurisdiction to fix compensation due a fiduciary for his services, and to fix fees for services performed by attorneys for the fiduciary in connection with the sale of lands ordered by the court to be made by such fiduciary.
2. Under the provisions of Section 6, Article IV of the Constitution of Ohio, the Court of Appeals, in an appeal on questions of law from a judgment of the Probate Court, is without jurisdiction to retry the issues of fact and substitute its judgment for that of the Probate Court awarding a lump sum judgment to an administrator for statutory compensation and for services in connection with the sale of land ordered to be made by the court; and the Court of Appeals may not modify such judgment on the weight of the evidence and render final judgment for such modified amount, but may reverse the judgment of the Probate Court and remand the cause to that court for further proceedings.
Appeal from Court of Appeals, Franklin County.
This case originated in the Probate Court of Franklin County on an application of the appellant herein, for an allowance of compensation for his services in connection with proceedings to sell certain lands as administrator of the estate of Maurice P. Murnan, deceased, and for his service in such proceedings as attorney at law.
Objection to the allowance of such fees was made by Raymond W. Kilbourne, as executor of the estate of Grace D Murnan, appellee herein. Upon hearing, the Probate Court made an order, the pertinent part of which is as follows: On consideration thereof the court finds that said administrators has rendered legal services on behalf of said estate in the amount and value of $1,000 and the court further finds that said administrator has rendered services in behalf of his trust which were not within the ordinary course of his duties as such, and that said services were reasonably worth the sum of $5,720, and it is ordered that said administrator be and he is hereby allowed out of the assets of said estate the sum of $6,720 as and for his legal services and his extraordinary compensation * * * .'
A motion for new trial was overruled and an appeal on questions of law was taken to the Court of Appeals, which court, upon hearing, made an order, the pertinent part of which is as follows:
'The court finds that the allowance made by the Probate Court of $2,500 as compensation for the claimed risk assumed by the administrator is not only contrary to the manifest weight of the evidence, but is not supported by any evidence, and the allowance of such compensation by the Probate Court constituted a clear abuse of discretion.
'This court therefore modifies the judgment of the Probate Court so that the amount allowed the administrator for extraordinary services is limited to and fixed at the sum of $3,220, and as so modified the judgment will be and is hereby affirmed.'
The Court of Appeals, in effect, sustained the finding of the Probate Court with respect to the attorney's fees in the sum of $1,000, but modified the judgment of the Probate Court with respect to the value of the services of the plaintiff as administrator in the land sale by reducing the same from $5,720 to $3,220, and affirmed the judgment of the Probate Court as so modified.
The matter is now in this court on appeal as of right.
William Harvey Jones, Columbus, for appellant.
Henry L. Scarlett, Raymond W. Kilbourne, Columbus, and Harrison, Thomas, Spangenberg & Hull, Cleveland, for appellee.
Appellant complains that the Court of Appeals erred in modifying the judgment of the Probate Court and in rendering final judgment, on the ground that, since the appeal to that court was on questions of law, it had no jurisdiction to modify the judgment of the Probate Court in any respect except as required by law, and if the court found that the judgment of the Probate Court was erroneous because not sustained by sufficient evidence, the court could only reverse the judgment and remand the case to the Probate Court for a new trial.
In the opinion of this court the complaint of the appellant in this respect is well taken and the Court of Appeals erred in modifying the judgment of the Probate Court and in rendering final judgment, for two reasons.
First, the matter of determining and allowing the amount of compensation to be paid to an administrator for services in connection with land sales in the administration of a decedent's estate and the amount of the allowance of attorney fees for services to an administrator in the administration of such an estate is solely within the jurisdiction of the Probate Court and may not be determined by any appellate court on appeal. See Section 10510-46, General Code; Trumpler, Adm'r v. Royer, 95 Ohio St. 194, 115 N.E. 1018.
Second, in a case where the validity of a judgment in a review on questions of law involves the weight of the evidence, the Court of Appeals may reverse the judgment on the weight of the evidence, but under such circumstances must remand the cause, for a new trial. It may not modify and enter final judgment unless there is a consent to a remittitur.
In the recent case of State ex rel. Squire, Supt., v. City of Cleveland, 150 Ohio St. 303, 82 N.E.2d 709, 711, this...
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