#### Best, Guardian, etc., *v.*McClure et al.

*Court of appeals—Jurisdiction on appeal—Section*6, *Article IT, Constitution—Chancery case—Action by guardian to enforce Tien upon devise to another—Support of ward.*

(No. 17864

Decided October 23, 1923.)

Error to Court of Appeals of Mahoning county.

Plaintiff in error began his action in the court of common pleas, praying for the sale of property in the interest of his ward, Alfred A. McClure, an adjudged imbecile. It appears from the record that one John McClure had bequeathed to his son and daughter, Walter and Mary, respectively, the farm in question, together with the personal property thereon. His will had a provision that his son Alfred, the ward, was to have a home on the farm, and that Walter and Mary should furnish him with support and maintenance. Later his son Walter died bequeathing his interest in the farm to the answering defendant, William J. McClure.

*482Plaintiff’s petition alleged that under the will of John McClure the care and maintenance of said Alfred became a lien and charge upon the land. It further alleged that, because of the attitude of the defendant William J. McClure, the farm could not produce sufficient income for the ward’s support, and it therefore was necessary for the best interests of the ward to sell the property. The petition prayed for such sale and for all other proper relief.

The defendant William J. McClure, answering, alleged that when Walter McClure died he bequeathed his interest in the farm to him, and that his devisor, for the purpose of discharging the conditions imposed upon him by the will of his. father, l’elating to the maintenance of the imbecile, created a trust fund in the hands of his executor, approximating $20,000, the income whereof was to be paid for the support of his sister Mary and his brother Alfred; that if the income therefrom was insufficient for that purpose Walter’s executor, under the will, was authorized to use the principal therefor; that it would be inequitable for the guardian to resort to the answering defendant’s interest in the farm without first exhausting the fund specially provided for the imbecile’s support in the hands of such executor. The answer asks that the guardian be prevented from enforcing his lien upon the premises until the trust fund aforesaid in the hands of the executor be wholly exhausted, and further asks for proper relief in the premises.

Upon trial in the court of common pleas that court found it necessary to sell the premises, and accordingly ordered a sale. Thereupon the defendant *483William J. McClure perfected his appeal to the Court of Appeals. In the latter court plaintiff moved a dismissal for the reason that the Court of Appeals had no jurisdiction. His. motion to dismiss was overruled by the Court of Appeals, which later, upon hearing, found in favor of the defendant and dismissed the guardian’s petition, whereupon error was prosecuted to this court.

*Mr. J. S. Miller*and *Mr. W. E. Spence,*for plaintiff in error.

*Mr. W. S. Emmons,*for defendants in error.

*Messrs. Emmons & Emmons,*for defendant in error, William J. McClure.

By the Court.

Section 6, Article IV of the Ohio Constitution, gives the Court of Appeals “appellate jurisdiction in the trial of chancery cases.” The Court of Appeals held this to be a chancery ease and therefore appealable, and this is the sole question presented to this court for determination.

The petition and answer determine the character of this action. Were this a case where a guardian sought to sell his ward’s estate without intervening equities, it could not be designated as a case in chancery. But this is not such a case. Here the petition seeks to enforce a lien or charge upon lands devised to another. Furthermore, the answering defendant here sought the equitable principle of exoneration. He did not deny, but admitted, that the imbecile’s support was a charge upon his land. However, he alleged that a special fund had been provided for the imbecile’s support, and he therefore sought to compel the guardian’s resort to that *484fund before selling bis own interest in the premises. Under the pleadings filed, the case was clearly one of chancery jurisdiction, and therefore appealable to the Court of Appeals.

The judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Mars ft at,t,, C. J., Wanamaker, Eobinson, Jones, Matthias, Day and Allen, JJ., concur.