171 N.E.2d 347 | Ohio Ct. App. | 1960
This is an appeal from a judgment of the Probate Court pursuant to a hearing on exceptions to an inventory ordering the inventory corrected and amended by "including therein the following assets: one diamond solitaire ring and one Thirty-Second Degree Masonic ring set with a diamond." The exceptions to the inventory were filed by one Harold E. Fosnaught, specific legatee of these two rings under the provisions of the will of John Howard Apger, deceased. The record before us shows that Dove M. Apger, as executrix of the estate, John Marsh, Jr., as attorney for the executrix, Dove M. Apger, as surviving spouse, and Dove M. Apger and Billie A. Patton, as next of kin and legatees, had each waived notice of the filing of the inventory and consented to its approval; that Harold E. Fosnaught was notified of the filing of the inventory and the time and place of hearing thereof; and that the executrix and her attorney were each notified of the filing of the exceptions and the time and place of hearing thereof. It does not appear from the record that any other notices were given or waivers of notice executed in connection with the inventory, the exceptions, and the hearings thereon.
On the hearing of the exceptions, the executrix made claim that the diamond solitaire ring had been given by the testator, before death, to William A. Patton, his son-in-law, and was therefore not part of the decedent's estate. The executrix acknowledged that no gift of the Masonic ring had been completed and that it should be included in the inventory.
From the judgment ordering the inclusion of both rings in the inventory, the only appeal taken and now before this court is that of William A. Patton, who describes himself in the notice of appeal as "a party in interest in the action in which exceptions were filed to the inventory and appraisement of the estate of John Howard Apger, deceased."
The appellant claims that the Probate Court erred in (1) barring the testimony of the executrix and (2) by handing down a judgment against the manifest weight of the evidence. *166
Although no party to the original action has protested the capacity or right of appellant to maintain this appeal, this is nevertheless a matter of concern to this court, which we must dispose of before considering appellant's assignments of error.
The statutes of Ohio are not always explicit as to what persons may prosecute an appeal from a judgment of a lower court. It may be inferred from the language of Section
As has been determined by the Supreme Court of Ohio in the case of Ohio Contract Carriers Assn., Inc., v. Public UtilitiesCommission,
"Appeal lies only on behalf of a party aggrieved by the final order appeal from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant."
Notwithstanding that the provisions of Section
In the instant case the appellant was not included in any of *167
the classes of persons upon whom notice of the filing of the inventory, the hearing thereon, the filing of the exceptions, or the hearing thereon, was required to be given under the provisions of Section
We appreciate that there have been some expressions by the courts that title may be determined in a hearing on exceptions to an inventory, but it is our opinion that such determination, if made, can be binding only on those persons who are properly before the court and cannot be binding on those not answerable to its process.
We conclude that the appellant herein, not being a party to the action in the Probate Court (see Bolen v. Humes et al.,Exrs.,
The appeal is dismissed at the costs of appellant.
Appeal dismissed.
YOUNGER, P. J., and MIDDLETON, J., concur.