PROBATE COURTS.

[Franklin Circuit Court,

January Term, 1901.]

Summers, Wilson and Sullivan, JJ.

#### Jones, Admr., v. Green.

Probate Court — Administrators—Order Coram non Judice.

The probate court is not expressly vested with jurisdiction to order an administrator, against his objection, specifically to perform an agreement alleged to have beeu made by his intestate; and such an order so made merely on motion of a party to the agreement and not necessary to effectuate some power expressly conferred, is *coram non judice,*and void.

Heard on Error.

*IV. A. Garsi,*for plaintiff in error.

*Wilbur E. King,*for defendant in error.

On April* 22,1899, Paul Jones was appointed and duly qualified, by the probate court of Franklin county, as administrator with the will annexed of the estate of Eucinda Jenkins, deceased. On June 21,1899, William H. Green filed a motion in said court representing that on March 18, 1899, he and his wife, in consideration of four hundred dollars to0them paid by said Eucinda Jenkins, had agreed to make a home for her with them and to support and care for her during the remainder *549of her life, and that to insure the performance of the agreement on their part, they had executed and delivered to her their promissory note for that amount and a mortgage securing the same on certain real estate, and that they had performed all upon their part to be performed, and moving the court for an order directing said administrator to surrender said note and to cancel said mortgage.

The administrator filed a motion to strike from the files the motion filed by Green for the reasons, among others, that Green was not a party to any case or proceeding in that court, and because the court had no jurisdiction to hear and determine the question raised by the motion. This motion the court overruled and made the order asked for by Green. The administrator prosecuted error to the court of common pleas, where the judgment was affirmed, and he now prosecutes error to this court.

Summers, J.

The question to be determined is whether the probate court has jurisdiction against the objection of an administrator to adjudicate a claim made against an estate by a claimant other than the administrator, and to order its payment by the administrator, or to order him specifically to perform a contract alleged to have been made by his decedent.

The probate court is a court of delegated powers, having only such jurisdiction as is conferred upon it by the constitution and statutes, and it has not the inherent general jurisdiction of common law and chancery courts. Davis v. Davis, 11 Ohio St., 386, 391; Gilliland v. Admrs. of Sellers, 2 Ohio St., 223; Jones v. Savings Assocn. Co., 10 Circ. Dec., 41.

The reason is well stated in Woerner’s Am. Daw of Admin., Sec. 142:

> “We have seen that by the common law the entire scope of jurisdiction over the estates of deceased persons vested in the ecclesiastical, common law and chancery courts. Hence, there being no ecclesiastical courts in America, all such jurisdiction, in so far as it became a part of the juridical system of the states, necessarily .vested in the common law and chancery courts, to the extent in which it was not lodged elsewhere by statute. It follows from this, that although in many of the states the constitution establishes or provides for the establishment of courts of probate, yet they take all their powers from the statutes regulating them. From this circumstance arises an important rule to be observed in ascertaining the extent of the power lodged in any one of this class of courts ; they cán exercise such powers only as are directly conferred upon them by the legislative enactment, or necessary to carry out some power so conferred. Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, given either expressly or by implication, the whole proceeding is void; but where jurisdiction is conferred over any subject matter, and it becomes necessary in the adjudication thereof to decide collateral matters over which no jurisdiction has been conferred, the court must, of necessity, decide such collateral issues.”

Article 4, Sec. 8 of the constitution provides that the probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such other jurisdiction as may be provided by law.

Section 524, Rev. Stat., provides that the probate court shall have exclusive jurisdiction, among other things, to direct and control the con*550duct and to settle the accounts of executors and administrators, and to order the distribution of estates. Section 525 confers concurrent jurisdiction in certain specified matters, and Sec. 589 provides that the probate judge shall issue all warrants, attachments, commissions, rules and orders not contrary to law, that are necessary and proper to carry into effect the powers granted to him.

It is not contended that power to make the order here complained of is specifically given except by that provision of Sec. 524 above quoted. The contention is that the administrator acquires title by virtue of his appointment; that he holds the estate merely as an agent of the court, and that he must therefore dispose of it as the court directs. That the conduct of an administrator touching the management of an estate, where not prescribed by statute, is by the provision of Sec. 524 subject to the control of the probate court is not doubted, but that such ample power, as is contended, was intended to be vested in the probate court by that provision, is inconsistent with the practice in this state and with other provisions of the statutes.

The st atutes relating to executors and administrators provide that claims against the estate, other than those owned by the administrator, must be presented for allowance to the administrator; that he may reject them or refer them to arbitration; that rejected claims shall be barred if a suit for the recovery thereof be not commenced within six months ; that the administrator shall not be liable to the suit of a creditor excepting upon a rejected claim until after eighteen months from the date of his administration bond; that a creditor whose right of action will not accrue within two years after the date of the administration bond may present his claim to the probate court, and that the court, if it appears that the same is justly due, may with the consent of the creditor and the administrator, order the, same paid, or order that the administrator retain sufficient assets to pay it; but it is expressly provided that the decision of the court shall not be conclusive against the administrator, and that he shall not'be compelled to pay the same unless an action thereon be commenced within six months after it becomes due;, that upon complaint made to the probate court or court of common pleas by any person interested that the administrator or any person is suspected of having concealed any of the assets, the court shall cite such person forthwith to appear before it to be examined on oath, and where the complaint is made to the probate court and a jury is demanded by either party, the court may forthwith reserve the case to the court of common pleas.

These provisions specifically require a suit or an action to establish a rejected claim, and necessarily negative any intention to vest jurisdiction in the probate court by the provision giving it authority to control the conduct of administrators. A suit or an action must be commenced in a court having general jurisdiction of suits or actions, unless otherwise expressly provided.

Such jurisdiction is conferred by statute upon the court of common pleas, but not upon the probate court.

> “Since the functions of probate courts are limited, in respect of executors and administrators, to the control of the devolution of property upon the death of its owner, it is not their province to adjudicate upon collateral questions. The right or title of the decedent to property claimed by the executor or administrator against third persons, or by third persons against him, as well as claims of third persons against creditors, heirs, legatees, devisees, or distributees, must, if an adjudication *551becomes necessary, be tried in courts of general jurisdiction, unless such jurisdiction be expressly conferred on probate courts.” Woerner’s Am. Law of Admin., Sec. 151.

Again he says, Sec. 153: “ The power to adjudicate upon claims against deceased persons is in most states conferred upon the courts having control over the administration of their estates', either exclusively, or concurrently with other courts; but unless such power is expressly granted, the probate courts cannot exercise it. Thus it is held in Maryland, that authority in the orphan’s court to pass such claims, and authorize and approve their payment, does not include the power to ascertain their validity and amount; hence the orphan’s court has no power, against the protestation of the administrator, to decree the payment of any claim until a court of law shall have definitely pronounced on its validity. And in New York the delegation of authority to surrogates to decree distribution to claimants ‘ according to their respective rights,’ and ‘ to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share,’ is held to give them no power to ascertain what such rights were, and they are utterly without jurisdiction either to allow or reject any claim whose validity, not having been established in some competent tribunal, is disputed by the executor or administrator.”

In the original act defining the jurisdiction and regulating the practice of probate courts, passed March 14, 1853, 51 O. L., 167, it was provided that the probate court should have exclusive jurisdiction “to direct and control the conduct and settle the accounts of executors and administrators ” and “ to enforce the payment of the debts and legacies of deceased persons, and the distribution of the estates of intestates.” This was amended May 1, 1854, 52 O. L- 103, to read' “ to direct and control the conduct, and to settle the accounts of executors and administrators, and to order the distribution oí estates; and Ranney, J., in McLaughlin v. McLaughlin, 4 Ohio St., 508, 511, commenting upon these provisions, says : “The act did not extend so far as to permit the the executor or administrator to sue in that court for a debt due to the estate or to subject him to be sued therefor a debt disputed by him ; but when the funds were in his hands, and the creditors were ascertained, and their debts liquidated, it conferred full power upon the court to compel him to do his whole duty in disbursing the fund, as well as to legatees and distributees as to creditors.”

This amended provision still exists unchanged as a part of Sec. 524, Rev. Stat., and certainly it cannot be that the probate court did not have jurisdiction under the broader provision of the original ■ act to adjudicate a claim disputed by the administrator, but has such jurisdiction under the narrower amended provision.

The conclusion reached finds support also in the analogous provision as to the bringing of suit against the assignee of an insolvent upon a rejected claim, Sec. 6452, Rev. Stat.; and in Kennedy v. Thompson, Assignee, 2 Circ. Dec., 254, where that section was under consideration, it is held that neither the probate court, nor a justice of the peace has jurisdiction of such a suit; that it is not a special proceeding, but a civil action, of which the court of common pleas has original jurisdiction, and in which neither party is entitled to a trial by jury.

What has been said is in relation to a claim or debt against the intestate, but the reasoning is equally applicable to an application for an *552order directing the specific performance of an agreement alleged to have been made by the intestate.

The reason is not that probate courts have not the power to grant equitable relief, for “ while they possess no original chancery powers, yet within the scope of the jurisdiction conferred upon them their powers are not confined to either legal or equitables rules, but are to be measured by the statutory grant alone,” Woerner, section 392; Doan v. Biteley, 49 Ohio St., 588; Clapp v Banking Co., 50 Ohio St., 528; but the reason is that jurisdiction of the subject matter has not been conferred.

The probate court is given power to compel the performance of a written contract for the conveyance of an interest in real estate, Secs. 5800, 5802, Rev. Stat. But this is not such a contract. Section 6076,. Rev. Stat., provides that premises mortgaged to the intestate and the debt secured thereby shall be considered as personal assets in the hands-of the executor or administrator, and Sec. 6071 provides that in the case-of the redemption of any such mortgage, the money paid thereon shall' be received by the administrator, and he shall thereupon cancel the mortgage; and Sec. 6072 provides that the administrator may foreclose-any mortgage belonging to the estate in the same manner the decedent might have done. Here there has been no money paid to the administrator upon this mortgage, and if he questions the right of the mortgagors to its cancellation, it is not his duty to release it. Should he bring suit in foreclosure, the mortgagors then may have their rights adjudicated ; and should the administrator refuse to cancel the mortgage or neglect to bring suit in foreclosure, then a remedy may be found in Sec. 6202, Rev. Stat., which provides that an administrator may maintain a civil action in the court of common pleas asking the direction or judgment of the court in any matter respecting the trust estate, or property to be administered, and the rights of the parties in interest, in the same manner and as fully as was formerly entertained in courts of chancery; and in case he fails to .do so after being requested in writing by any creditor, legatee, distributee, or other party in interest, then such party may commence such action.

The judgments of the court of common pleas and of the probate court are reversed, and the case is remanded to the probate court with-instructions to overrule the motion, and the costs are adjudged against the Greens.