PROBATE OF WILLS.

[Hamilton Circuit Court,

November Term, 1888.]

Smith, Swing and Shauck, JJ.

(Judge Shauck, of the Second Circuit, taking the place of Judge Cox.)

#### * ROBERT BARR ET AL. v. HENRY CLOSTERMAN ET AL.

1. Second Application to Probate a Will Allowed.

An application to a probate court, under sec. 5937, . Rev. Stat., to admit to record therein, an authenticated copy of'a will, alleged to have been executed and proved . in another state, according to the laws thereof, and relating to property in Ohio, is ex parte, and not adversary in its character, and the refusal by the court to grant such application, will not operate as a bar to the prosecution and allowance of a second application for the same purpose, on other and different proof.

3. Not Adversary Proceeding Because Interested Parties Appear.

The provisions of sec. 6406, Rev. Stat., were not intended to apply to applications for such purposes. And the fact that persons claiming to have an interest.in land affected by said will,” voluntarily appear in court, and on their own application are ' made parties to such a proceeding and resist the record of said will, or are notified by the court in pursuance of such section,, does not convert it into an adversary proceeding, so as to make an order of the court refusing to admit the will to' record, a bar to a subsequent application for the same purpose.

Error to the Court of Common Pleas of Hamilton county.

*

 For former decision on application to probate this will, see 9 Ohio Dec. R., 000 (s. c., 18 B. 391); 1 Ohio Circ. Dec., 546. For subsequent decisions in this case, see 4 Ohio Circ. Dec., 000 and 000 (s. c., 7 C. C., 363 and 371). The judgments were affirmed by the Supreme Court without report, June 7, 1892. The case is cited *In re*Ludlow, 6 Ohio Dec., 106.

Smith, C. J.

This is a proceeding in error seeking the reversal of a judgment of the court of common pleas affirming the order and judgment of the probate court, refusing on a second application made for that purpose, to admit to record therein an authenticated copy of the last will of Robert Barr, deceased, alleged to have been admitted to probate and record in Westmoreland county, Pa., October 22, 1822. The first application which had been made to the probate court, had also, on the evidence taken, been refused by that court, and its judgment was affirmed by the court of common pleas and such judgment of affirmance by this court. A statement of the facts of that case and the decision of the court may be seen in 1 Ohio Circ. Dec., 546, 387.

After this decision a new application was made to the probate court to admit the same will to record. The court' again allowed the defendants in error to become parties to such proceeding and to resist it, and an answer was filed by them, which among other things alleged, that the decision of the court on the first application was final and a bar to a second application — and the record was pleaded. The plaintiff in error denied that there was any such judgment which operated as a bar to the second application, and produced a large amount of testimony in addition to that which had been taken on the first application. At the close of the testimony for the plaintiff in error, the court declined to hear any testimony from those resisting the application, except .upon the question of *res*judicata, and the former record being produced, the court held that it operated as a bar to a second application-, which judgment, as has been said, was affirmed *252by the court of common pleas, and the only question now before us is, whether that adjudication was right.

It is settled, we think, by the decisions of the supreme court, that prior to the adoption of the constitution of 1851, and the laws thereafter passed, on this subject that the application of a person to the court of common pleas, sitting as a court of probate, to admit a will to record, was *ex parte.\*and not adversary in its character. And it was the statement of the court in several cases, involving the powers and practice of the court of common pleas, as a court of probate, that if its action was to admit the will to probate and record, "it binds everybody until set aside,” but, that if the application was rejected, it might again be made upon fuller proof. Chapman’s will, 6 O., 149, 500, 502; Hunter’s will, 6 O., 499. And we think we are not at liberty, as claimed by the counsel for the defendants in error, to regard these parts of the decisions referred to as *obiter dicta*and therefore not authoritative. They were made by three different judges, announcing the conclusions of the court in cases fairly raising the point of practice —were not then dissented from by any member of the court as then constb tuted — were never questioned in any subsequent decision of the court, and doubtless thereafter such was the settled practice of the courts of the state, as it had been before.

Has the new constitution or the laws passed since its adoption made any change in this particular? We see nothing in the constitution which at all affects this question, though such seems to be the view of one of the counsel for the defendants in error. Section 5934, Rev. Stat., now allows an appeal to be taken from the refusal of the court to admit a domestic will to probate. We held in the case formerly presented to us, that this did not authorize an appeal from the refusal of the court, to admit to record in this state, under the provisions of sec. 5937, "authenticated copies of wills executed and proved according to the laws of any state or territory of the United States, relative to any property in the state of Ohio.” There being an appeal now allowed under sec. 5934 from the refusal of the court to admit to probate a domestic will, it might be a question whether, if under such circumstances an appeal is not taken, the judgment is not final — but as to this we express no opinion — but if we were right in our former decision that there is no appeal from an order made under sec. 5937, refusing to allow such a will to go to record in this state, there would seem now to be the same reason for allowing a new application on other and fuller proof, that existed at the time the decisions referred to were made.

Tt is urged upon us, however, with much force, that on account of the mode of proceeding adopted in the former application (as well as in this), the probate court having allowed persons claiming an interest in land said to be devised by this will (on their own application and against the objection of those producing the will for record), to become parties to such proceeding, and offer testimony against the record of the will, that it thereby became an adversary proceeding, and subject to all the rules which govern such cases, and consequently that the order of the probate court refusing to admit the will to record was a complete bar to the successful prosecution of the last application.

The question then arises whether the probate court had the right to allow these parties to intervene for this purpose, and if allowed, what was the effect of it? Under the head of “General Provisions,” in the chapter regulating the procedure in probate courts, secs. 6400 to 6413, appears sec. 6406, which it is claimed gives such right and converts a proceeding of this kind into an adversary action. It provides “that when notice of any proceeding in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the same shall not be directed by statute, the probate judge shall order notice of such proceedings to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable.”

Independently of this statute we see nothing in the law which would require *253us to hold that an application to admit a will to record under sec. 5937, Rev. Stat., is not now as much an *ex parte*proceeding as it was under the statutes in force when the Ohio decisions above referred to were made. And even now the policy of our statute seems to be adverse to having controversy between parties in the probate court over the admission 'df a will to ‘prdbate — -for by sec; 5926, as construed in the Hathaway case, 4 O. S., 383, no person is authorized to offer evidence in that court in opposition to the probate of a domestic will. It is true that inrour opinion this does not-expressly-apply do-applications unde'r sec. 5937, but it is perhaps an indication of the policy of the law. It may be, that as the legislature has not seen proper to 'say, that the same rule shall prevail in application's under this last-named section as in the case Of a domestic will, that it rests in the sound discretion of the probate judge whether it will allow persons interested to ;be heard on the question, and thus aid'him in-coming to a proper conclusion -.as .to W-h-at -disposition he -should make -of the application. I-here may be good -reasons - why -such should -be -the case, but-we -are unable -to find any -express warrant in the statute for such practice. Fo'r we are-of the opi-n-ioft that sec. 6406 was hardly intended to apply to a case of this kind, or at all events was -not intended to convert it into an adversary proceeding if the probate judge chooses to give notice Of the application to such persons as he may think to be interested. That the object .and purpose of this section was to give to 'the judge the right to fix'the manner'of giving notice in cases whe'reit is required by law, and no specific mode is pointed out, and give such notice in cases where the law does not absolutely require it, but in which it rests within the discretion of the court. And there are cases of this kind. For instance in the granting of injunctions under secs. 5573-4-5. In all these cases the judge may require notice, and must do so, when an answer has been filed. In the appointment of receivers under sec. 5587, as to which the statute does not in terms require notice, but which should be given, as held in the case of Railway Co. v. Jewett, 37 O. S., 649, and in many other cases which might be named. And in ou-r opinion, should an application be made to the probate judge for.an injunction, or for tíre appointment of a receiver, Or what is more, like the case at bar, for the appointment of an administrator for an estate, and in either case it be refused, that it would not be a bar to a second application on other proof. It would seem to us to be carrying the doctrine of *res judicata*to an extent unauthorized by the law, to so hold. If it depends on the giving of notice by the judge to the parties in interest, how is he to knoWwho are interested? No petition is filed by the applicant, and no statement made by him -as to the persons who will be affected if the will is admitted to -record. Or, if the judge notifies only one or two persons, when many others are equally interested, what is the result of an order refusing the record? Is it binding as to those notified, arid''of no forceas to those who are not? It would seem that there ate too mán'y difficulties in the way of holding such an order to be a -bar to a second application, to justify tts in coming to such a conclusion.

S. T. Crawford, for plaintiff in error.

Lincoln, Stephens & Lincoln, and S. A. Miller and Cowan & Ferfi's, for defendants in error.

We are of the opinion, then, that the former judgment was hot a bar to this second application, and that the probate court and the court of common pleas erred in holding that it was; and the judgments are reversed, and th'é cause remanded to the probate court for a hearing on the application and for such other proceedings as may be warranted by law. .