#### The State, ex rel. Voight, Jr., *v.*Lueders, Probate Judge.

*Probate court*— *Jurisdiction*— *Sale of realty to pay debts*— *Distribution of proceeds*— *Section 10783, General Code*— *Personal judgment against legatee*— *Writ of prohibition*— *Issuance of execution*— *Remedy of aggrieved party.*

1. In proceedings to sell the real estate of a dece'dent to- pay debts, the jurisdiction of the probate court is limited by statute, Section 10783, General Code, and it is not authorized, on distribution of the proceeds in suoh proceeding, to render a personal judgment against a legatee of the estate, -who has been made a party thereto.

2. The writ of prohibition 'does not lie to prevent the ministerial act of a probate judge, acting as clerk *ex officio,*issuing an execution upon a judgment in his court, since such act does not involve judicial nor quasi-judicial functions.

8. When an execution issued against a party is not warranted by a judgment of the probate court, ample remedy is' supplied the aggrieved party by application to the court to set aside the writ, or by proceedings in injunction.

(No. 16515

Decided April 20, 1920.)

In Prohibition.

One Lewis Voight, Sr., among other bequests and devises, bequeathed to his son Lewis Voight, *212Jr., fifty shares of the capital stock of the United States Wall Paper Company, but provided in his will that any amount paid, loaned or advanced by him or his estate to his son Lewis Voight, Jr., after September 1, 1907, should be charged against his son Lewis and be a lien and charge against the interest or share bequeathed and devised to him by said last will and testament.

In order to effect a settlement of the estate of Lewis Voight, Sr., two proceedings were had in the probate court of Hamilton county, Ohio, one being No. 71037, in which the settlement and final distribution of the estate was sought, the other being No. 8240, seeking, by petition, to sell the real estate of the decedent to pay debts. In both of these cases proceedings were had on the initiative of the executrix of the estate, and, in both, entries were made, as hereafter appear.

In Case No. 8240, having in view the provisions of the will creating a charge upon the interest devised to Lewis Voight, Jr., the probate court, in its distribution of the net proceeds resulting from the sale of the property, found that Lewis Voight, Jr., under the terms of the will, was entitled to receive one-sixth of the net proceeds of the' sale, amounting to $2,220.06, which the court found was subject to a charge in favor of the estate. Thereupon the court entered the following finding and judgment:

“The court finds that said Lewis Voight, Jr., was, at the death of said Lewis Voight, Sr., to-wit, on October 6, 1912, indebted to him in the sum of five thousand one hundred and sixty-three dollars *213and fifty cents ($5163.50) for money paid, loaned and advanced by the said Lewis Voight, Sr., to the said Lewis Voight, Jr., after September 1, 1907, for which sum with interest from October 6, 1912, the said Susanna M. Voight, as executrix of the said estate, is entitled to set off the same as against the legacies and devises made to the said Lewis Voight, Jr., by the will of said Lewis Voight, Sr., and that said executrix holds the first and best lien thereon.”

And in this order of distribution the court ordered the net proceeds due Lewis Voight, Jr., amounting to $2,220.05, to be paid over to the executrix of the estate. The foregoing entry was made by the probate court on March 31, 1915.

In the administration proceedings theretofore pending in the probate court, on April 15, 1915, upon an application of the executrix for an order to distribute certain stocks, the probate court, finding that Lewis Voight, Jr., had been devised fifty shares of the capital stock of the United States Wall Paper Company subject to a charge in favor of the estate under the terms of the will, again found that the sum of $5,163.50, with interest, was due the estate from Lewis Voight, Jr., for moneys paid, loaned and advanced after September 1, 1907, and ordered the executrix to retain the fifty shares devised to Lewis Voight, Jr., as part of the assets of the estate, and that she cause said fifty shares to be transferred and assigned to herself as executrix.

In his petition for a writ of prohibition the relator alleges that on December 29, 1919, he re*214ceived by transfer from his son, Lewis Voight, III, ten shares of the capital stock of the United States Wall Paper Company, and that the stock certificate therefor was issued by the said corporation on December 31, 1919, but delivery thereof withheld from the relator; that upon an execution issued by the respondent, as judge of said probate court, the sheriff of Hamilton county was proceeding to advertise and sell said stock at sheriff’s sale on the judgment of the probate court entéred on April 15, 1915, and that the sheriff will sell said stock unless restrained, and unless relief is granted by this court. The relator therefore asks for a writ of prohibition, prohibiting the judge of the probate court from enforcing said execution.

In his answer the respondent' relies upon the judgment obtained and entered on March 31, 1915, in cause No. 8240, which is alleged to be in full force and effect, no error or appeal having been prosecuted therefrom, and the respondent alleges that execution upon said judgment was issued by him in his capacity as *ex officio*clerk of the probate court, and he therefore asks that the writ of prohibition be denied.

*Mr. George S. Hawke*and *Mr. Henry L. Rockel,*for relator.

*Mr. Herman P.*Goebel, for respondent.

Jones, J.

The crux of this case lies in the attempt to subject the ten shares of the capital stock of the United States Wall Paper Company, by execution, to a personal judgment alleged to have been *215obtained against Lewis Voight, Jr., iñ the proceeding to sell the real estate of the decedent to pay-debts. These ten shares of capital stock were not acquired by the devisee under the terms of the will, but were acquired from his son Lewis Voight, III, on December 29, 1919, a period long postdating the judgments of the probate court in its proceedings of 1915.

The sole jurisdiction of the probate court was to ascertain, for the purpose of distribution, the amount of money paid, loaned or advanced by Lewis Voight, Sr., to Lewis Voight, Jr., after September 1, 1907, and to charge the interest derived from the estate by Lewis Voight, Jr., with said sum. The extent of its jurisdiction in case 8240, wherein the execution was issued, was to determine the equities pf the~-parties, determine priorities, and order distribution. (Section 10783, General Code; *First National Bank of Cadiz*v. *Beebe,*62 Ohio St., 41.) However, from an inspection of the two entries made by the probate court nothing further was attempted, and in neither case was there a personal judgment rendered against Lewis Voight, Jr., in favor of the estate. In both cases a finding of the amount due the estate was made to recompense the estate for the amount loaned. In The real estate sale case, recoupment was sought from the proceeds of sale; and in the administration case, from the stock bequeathed.

It is perfectly clear that the judgment of the probate court cannot be used as a predicate for the issuance of an execution against the ten shares of stock newly acquired by Lewis Voight, Jr., by *216transfer from his son. However, the relator is not entitled to the extraordinary writ of prohibition, since an ample remedy is vouchsafed him by the regular process of law. In our view this case simply presents the question of the threatened execution of process upon an alleged personal judgment, which neither exists nor is warranted by statute. While injunction may not be available to restrain the enforcement of an unsatisfied valid judgment of a court, having jurisdiction over the person and subject-matter of suit, relief may be had when the process to be executed is not warranted by the judgment rendered. But in such cases it has been held that the most appropriate remedy is by an application to the court from which the execution issues to set it aside *(Miller et al.*v. *Longacre et al., 26*Ohio St., 291) or by proceedings in injunction, where equity requires its intervention.'

The issuance and placing of the execution in the hands of the sheriff for service was an act of William H. Lueders, not as judge, but as *ex officio*clerk of the probate court. It was not an act embracing any judicial function, neither did it affect juridically the jurisdiction of the court. The judge issuing this execution was exercising neither judicial nor quasi-judicial power. *(State, ex rel.,*v. *ClenDening et al.,*93 Ohio St., 264.) His act was purely clerical and ministerial. The governing principle is stated in 22 Ruling Case Law, page 15: “Except in those cases where some valid constitutional or statutory enactment declares directly to the contrary, it must appear that the act in question is not ministerial in character. If it is *217ministerial, the writ cannot be sustained, though the person or tribunal against which it is sought is a judge or court authorized in proper cases to discharge judicial functions.”

It follows, therefore, since other ample and adequate remedy is supplied the relator, and because the act sought to be prohibited is purely ministerial, that the relator, for either reason should be denied the writ of prohibition.

*Writ denied.*

*■*Matthias, Johnson, Wanamaker, Robinson and Merrell, JJ., concur.