WILLS — RECEIVERS—ERROR.

[Richland Circuit Court,

July, 1900.]

Voorhees, J., at Chambers.

#### Eva M. Sanker et al. v. Ethel M. Mattison et al.

1. Receiver — Actions to Determine Validity oe Will.

Where an action is brought in common pleas court under sec. 5861, Rev. Stat., to determine the validity of a will, the issue is confined to the question whether the writing produced is or is not the last will of the testator, and •the subject of the action is the validity of the will.

2. Same — Not a Case for a Receiver Under Sec. 5587, Rev. Stat.

The circuit court, or judge thereof in his circuit, has no power under sec. 5587, Rev. Stat., to appoint a receiver in such an action, after final judgment, to sell or take charge of the personal or real property of the decedent, during the pendency of proceedings in error, where an executor or administrator with the will annexed had been previously appointed by the probate court.

3. Same — Appointment of a Receiver in such Action — When.

A court of equity possesses the power independent of statute, to appoint a receiver to preserve property *pendente*lite; but such power can be exercised only in cases where the property is the direct subject of the action, and the judgment will act upon the specific property, and when there is no person who is at the time competent to hold and manage it during the judicial proceeding.

4. Same — Effect of Judgment in such an action.

While the judgment in such an action is conclusive as to the title of real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized; and the plaintiff cannot, under any process that can be issued to enforce the judgment, obtain possession of the property, regardless of the rights of the executor or administrator to duly and legally administer and distribute the estate, according to the provisions of the will or the law. *'*

5. Same — Judgment Setting Will aside does not Remove Administrator

A judgment setting aside 'the will leaves the parties in the situation which they would have occupied had the testator died intestate; but it does not vacate or annul the order of appointment by the probate court of an administrator of the estate.

*1266. Same — Effect of Proceedings in Error.

The judgment setting aside the will, and the filing of a petition in error to reverse this judgment, does not vacate the order appointing an administrator-on the estate, or release the administrator from the preservation of the property, or the protection of the interest of parties during the pendency of the litigation; and the jurisdiction to make such orders or further orders for that purpose, during the pendency of proceedings in error, remains in the probate court. The petition in error does not bring the whole property and the administration thereof, before the appellate court, but only the order adjudging the will to be void; and leaves in the probate court all jurisdiction in the cause not inconsistent with the power to reverse, vacate or modify the final order or judgment ip which error is alleged.

Application for receiver in action pending in circuit court of Richland county.

Voorhees, J.

(At Chambers.)

This action is pending in the circuit court of Richland county, on petition in error to reverse the judgment of common pleas in favor of the defendants in error, on an issue made up under sec. 5861, Rev. Stat., contesting the last will and testament of William M. Mattison, deceased.

The plaintiff in error, Eva Sanker, is the administratrix with the will annexed of said William M. Mattison, and one of the heirs of said deceased, and a devisee under said will. Since filing the petition in error in the circuit, and for the first time, an application is made to one of the judges of said court at chambers, by the defendants in error, for the appointment of a receiver, to take charge of and sell the real estate of which said William M. Mattison died seized and disposed of by said, will.

The said Eva Sanker, as such administratrix and devisee under said will, with others, plaintiffs in error, oppose the appointment of a receiver and contest said application, which presents some important legal questions.

The action being one for the contest of a will, it may be assumed, and it appears from the record, that the will was duly admitted to probate, in the probate court of Richland county; that an administrator with the will annexed was duly appointed and qualified by that court; and afterwards proceedings were commenced to contest the validity of the will by the defendants in error. It is further shown by the record that the cause was tried in the common pleas court to a jury, resulting in a verdict and judgment in favor of the contestants, the defendants in error, and the plaintiffs in error, prosecute error to the. circuit court. Since the cause came into this circuit court this application is made for the appointment of receiver. No misconduct, fraud or maladministration of any kind is charged against the administratrix.

The application is made under sec. 6587, Rev. Stat. If the power to appoint a receiver exists under said section in such a case, it is by virtue of the sixth subdivision, which provides that : “ In all other cases where receivers have heretofore been appointed by the usages of equity.”

The first question then is: Is this a case in which, by the usages of equity, the circuit court or a judge thereof can appoint a receiver *pendente lite ?*

The appointment of a receiver in any case is, as a general rule discretionary. The discretion is not arbitrary or absolute; it is a sound and judicious discretion, taking into account all the circumstances of *127the case exercised for the purpose of promoting the'ends of justice, and of protecting the rights of all the parties interested in the controversy and subject matter, and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding, 3 Pomeroy’s Eq. Jur., sec. 1331.

The author divides the cases in which receivers should be appointed into four classes: “The first class contains those cases where there is no person entitled to the property, who is at the time competent to hold and manage it during the judicial proceedings.” 3 Pomeroy’s Eq. Jur., sec. 1332. Thfs class embraces the estimates of infants, lunatics and deceased persons, when it becomes necessary to have them preserved pending litigation. “ The second class of cases is based upon the lact that all of the parties are equally entitled to the possession of the property which is the subject matter of the controversy, but it is not just and proper from the nature of the dispute and their relations with each other, that either one of them should be allowed to retain possession and. control during the litigation.” Id., sec. 1333. Controversies between tenants in common, and similar contentions fall within this class. “ The third class embraces those cases in which the person holding title to the property is in a position of trust, or'of *quasi*trust, and is violating his fiduciary duties by misusing, misapplying or wasting the property, and is thereby endangering the rights of other persons beneficially interested.” Id., sec. 1334. This class takes in the whole field of trusts and fiduciary holdings of property, and may be invoked by persons interested, if their rights exist in present, and sometimes when their interests are only in future. “ Fourth Class. This class contains those cases in which a receiver is appointed after judgment for the purpose of carrying the decree into effect.” Id., sec. 1335. It would also take in the matter and duty of appointing a receiver, if it becomes necessary to have such property and effects reduced to possession, or otherwise, cared for and preserved pending the litigation, where there is a contest between the parties interested with the estate, growing out of the validity of the will, and a receiver has been appointed or applied for prior to the appointment of an administrator, and the contest is likely to be protracted; but in such a case if a receiver is actually appointed prior to the appointment of an administrator *pendente lite,*it is proper to order the receiver to turn oyer to the administrator the personal and real estate belonging to the testate. This is based upon the fact or reason, that the probate court appointing the administrator is the proper court for the settlement and distribution of the estate according to the will or under the law *;*and the jurisdiction of the chancery court in such case would be onlv temporary, for the purpose of preserving the property until such time as the probate court appointed a person with full power to protect and preserve the property.

A court of chancery cannot appoint a receiver after the granting of letters *pendente lite*by the probate court, and if such receiver has been appointed prior thereto, his powers cease after the grant, and he will be discharged and directed to deliver over the property to such administrator. In re Colvin, 3 Md., Ch. 278.

Section 6019a, Rev. Stat., prescribes the duties and fixes the powers of an executor. Where the will is contested, it provides that: “ Whenever a will is contested the executor, or the administrator, or administratrix </*? *bonis non,*with the will annexed, or the testamentary trustee, shall have power during the contest of said will, to control all the real estate not *128specifically devised, included in said will, and all the personal estate oí said testator, not before said contest duly administered; to collect the debts, and convert all assets into money, except such as may be specifically bequeathed; pay all taxes on said real and personal property, and all debts according to law; and, whenever necessary to pu serve said real property from waste, to repair buildings and other improvements, and insure the same upon an order therefor first obtained from the probate court having jurisdiction of such executor, or administrator or testamentary trustee, and for. such repairs, taxes and insurance, to advance or borrow money on the credit of such estate, which shall be a charge thereon; and shall also have power to receive and receipt for am*distributive share of any estate or trust to which such testator would have been entitled, if living. The probate court may require such additional bonds as from time to time may be proper.”

While there are frequent instances where the English courts of chancery have allowed receivers, pending litigation as to the probate of a will, when the relief was necessary for the preservation of the estate, the fact that after a-will has been admitted to probate, litigation is instituted to recall or revoke the probate, does not of itself constitute sufficient ground to justify a court of equity in interfering by a receiver with the possession of the parties entitled thereto under the probate. Newton v. Rickets, 10 Beav, 525; High on Receive s, sec. 701; Johnson v. Cochrane, 91 Hun., 163; s. c. 36 N. Y., Supp. 287; and the valuable monographic note to Kinsman v. Spokans, 72 Am. St., Rep, 24, 29, 63 especially pages 63, 64, 65 and 66 and authorities there cited.

The Supreme Court of Alabama in Randle v. Carter, 62 Ala., 95, 102, says: “A strong case is required to induce the appointment of a receiver to take assets from the custody of .an executor or administrator, displacing his authority. The executor is appointed by the testator, who has the right to declare n whom the management of his estate after his death shall be reposed. The administrator derives his authority from, and is, in a qualified sense, the officer of another court of exclusive jurisdiction, compelled to give and keep a bond, with sufficient sureties, for the prompt and faithful discharge of the trusts of the administration. The court is, therefore, reluctant to interfere with them by the appointment of a receiver. There must be actual misconduct or fraud, and immediate' danger of loss, of the appointment of a receiver cannot be justified. A different rule obtains, and should obtain, than in the case of trustees. The court of probate has, by the constitution, a general jurisdiction over the grant of letters' testamentary, and of administration, in which is involved the power of revocation. The grant may be revoked whenever gross misconduct is shown, or whenever a necessity exists, additional security may be required.”

In the case of Johnson v. Cochrane, *supra,*it is held:

First — “Where an action is brought in the Supreme Court under sec. 2653a of the code of civil procedure to determine the validity of a will, the issue is confined to the question whether the writing produced is or is not the last will of the testator and the subject of the action is the validity of the will.”

■ Second — “ The court has no power in such an action to appoint, by ' virtue of sec. 713, of the code of civil procedure, a receiver, after final judgment, to preserve the real property of the decedent during the pendency of an appeal.”

*129*Bowers &*Black, for motion.

*Douglass & Mengert,*contra.

*Third*— “A court of equity possesses the power, independent of statute, to appoint a receiver to preserve property *pe7idente Hie*but such ■ power can be exercised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property.”

Fourth — “While the judgment in such an action is conclusive as to the title of real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized, and the plaintiff cannot, under any process that can be issued to enforce the judgment, obtain possession of the real estate in question.”

Fifth — “The effect of a judgment adjudging a will to be void is to leave the parties in the situation which they would have occupied had the testator died intestate.”

In view ol the authorities cited, and of the statute, (sec. 6019a) in a case of the contest of a will, where an administrator with the will annexed has been appointed and qualified prior to the commencement of the action to contest the will, and after the case has been taken to the circuit court on error, an application for the first time is made for a receiver, such application should not be granted either by that court or judge thereof. If the necessity for a receiver exists, on' account of disqualification or other disability of the administrator, the application and appointment should be made by the probate court that proved the will. Good v. Wiggins, 12 Ohio St., 341. The circuit court on error is not a court of equity, secs. 6709, 5573, Rev. Stat.; Atwood v. Whipple, 48 Ohio St., 308, 314.

The petition in error in this case does not transfer to the circuit or common pleas court the settlement of the estate of William M. Mattison, deceased, nor does it involve the appointment or qualification of the administrator. The only question litigated in the common pleas was the validity of the will, leaving to the probate court jurisdiction to make all orders usual and proper to be made during the pendency of the litigation, for the care and preservation of the property, and for the pn tection of the rights and interest of the parties. The jurisdiction so remaining and conferred on the probate court by the probating of *tüi*will, and the appointment of the administrator is exclusive in all respects in which it is adequate. Saylor v. Simpson, 45 Ohio St., 141; Havens v. Horton Jr., 53 Ohio St., 342; Mercer v. Cunningham, 53 Ohio St., 353, 361.

A creditor cannot, nor can an heir or devisee transfer the settlement of the estate of the decedent from the probate court to a court in chancery. McDonald v. Aten, 1 Ohio St., 293.

This application for a receiver should be denied, and the same is refused.