#### The State, ex rel. Clary, *v.*Probate Court of Preble County et al.

(No. 31696

Decided June 15, 1949.)

*498*Messrs.*Taft, *Stettinius & Hollister*and *Mr. Alan R. Vogeler,*for relator.

*Messrs. King & Young*and *Mr. Thurston F. Riitle,*for respondents.

Weygandt, C. J.

A preliminary question is presented by respondents’ motion to strike the second and third sentences from the relator’s reply for the reason that they are conclusions of law.

The motion is granted. Counsel are agreed that the third sentence should be stricken since it contains the mere conclusion that the proceedings in the Probate Court of Preble county were null and void. The second sentence is likewise unimportant inasmuch as it simply states the reason why no notice was given concerning the application to probate the earlier will in Hamilton county.

The decisive question is whether the relator has mistaken his remedy.

Under the provisions of Section 10504-15, General Code, “a will shall be admitted to probate * * * in the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state.”

Hence, if this testatrix was domiciled in Preble county at the time of her death, the Probate Court of that county has jurisdiction to administer the estate, and the Probate Court of Hamilton county does not. Similarly, if she was domiciled in Hamilton county at the time of her death, the Probate Court of that county has jurisdiction to administer the estate, and the Probate Court of Preble county does not.

*499In this ease the matter of the domicile of the testatrix is a question of fact to be determined from the evidence. Each of the two Probate Courts has concluded that she was domiciled in its county. The relator now asks thiá court in this *original*action to substitute its conclusion for the facts found by the two Probate Courts.

In Section 10504-15, General Code, it is provided further that “when a will is presented for probate, persons interested in its probate may contest the jurisdiction of the court to entertain the application.” The relator concedes that the question of jurisdiction is one that may be reviewed on appeal. He appeared at the hearing in the Probate Court of Preble county and contested its jurisdiction on the specific ground that the testatrix was not in fact domiciled in that county at the time of her death. Exceptions were saved to the finding and judgment of that court; and under the provisions of Section 10504-16, General Code, “the decision of the court as to its jurisdiction may be reviewed on error.”

Nevertheless, the relator insists that he need not avail himself of this usual remedy but may resort to the use of the extraordinary writ of prohibition to accomplish the same purpose. In a multitude of cases this court has held repeatedly and consistently that the law is to the contrary. In the syllabus in the case of *State, ex rel. Ellis,*v. *McCabe et al., Judges,*138 Ohio St., 417, 35 N. E. (2d), 571, the rule was restated as follows:

> “1. A wrrit of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only when there is no other regular, ordinary and adequate remedy.

> “2. Such writ is not available as a substitute for the remedy of appeal.

> “3. A writ of prohibition will not be issued unless *500it clearly appears that the court or tribunal whose action is sought to be prohibited has no jurisdiction of' the cause which it is attempting to adjudicate, or is-about to exceed its jurisdiction.”

In the instant controversy it not only does not appear clearly that the Preble county Probate Court has-no jurisdiction but it is possible that under the evidence-this may prove to be the only court that does have jurisdiction to administer the estate. Where, as here, the-question of jurisdiction is one of fact alone, it is peculiarly within the province of the trial court itself to-determine the issue.

The relator relies on the cases of *State, ex rel. Barbee, Exr.,*v. *Allen, Probate Judge,*96 Ohio St., 10, 117 N. E., 13, and *State, ex rel. Young,*v. *Morrow, Judge,*131 Ohio St., 266, 2 N. E. (2d), 595. However, in each case this court consistently refused to issue a writ of' prohibition as a substitute for the usual remedy of appeal to determine the jurisdiction of Probate Courts-to probate certain wills.

The relator likewise relies on the provisions of Section 10501-55, General Code, formerly numbered 10498 and relied on in the case of *State, ex rel. Taylor, Admr.,*v. *Gregory, Judge,*122 Ohio St., 512, 172 N. E., 365. This statute reads as follows:

> “The jurisdiction acquired by a Probate Court over a matter or proceeding is exclusive of that of any other Probate Court, *except when otherwise provided■ by law.”*(Italics supplied.)

This court recently called attention to the importance of the italicized part of this language in the case of *State, ex rel. Overlander,*v. *Brewer, Judge,*147 Ohio St., 386, 72 N. E. (2d), 84, in which the second: paragraph of the syllabus reads:

> “2. The exclusive jurisdiction of a Probate Court referred to in Section 10501-55, General Code, does-not apply when otherwise provided by law.”

*501It is “otherwise provided by law’’ that “a will shall be admitted to probate * * * in the comity in which the testator was domiciled if, at the time of his death, he was domiciled in this state.” Section 10504-15, General Code, *supra.*

The relator, not having availed himself of the usual and adequate remedy of appeal, may not resort to the extraordinary writ of prohibition as a substitute therefor.

*Writ denied.*

Matthias, Hart, Zimmerman, Turner and Taet, JJ., concur.

Stewart, J.,

dissenting. Although I concur in all three paragraphs of the syllabus, I respectfully dissent from the judgment for the reason that the principles of law announced in the syllabus are not applicable to the factual situation in the present case.

The Probate Court of Hamilton County admitted to probate the alleged first will of decedent and assumed jurisdiction over the administration of the estate involved. That could have been done only on a finding of the court that decedent was a resident of Ohio and domiciled in Hamilton county at the time of her death.

Some time later the Probate Court of Preble County admitted to probate an alleged later will.

The Probate Court of Hamilton County acquired jurisdiction over the estate involved in this controversy under the law as expressed in the third paragraph of the syllabus in this present case, and that jurisdiction is exclusive of any other probate court. In the absence of any appeal from the action of the Probate Court of Hamilton County, it follows that the Probate Court of no other county has jurisdiction, of the estate, and under the principle pronounced in *502paragraph two of the syllabus a writ of prohibition should properly issue against the Probate Court of Preble County.

In the case of *State, ex rel. Taylor, Admr.,*v. *Gregory, Judge,*122 Ohio St., 512, 172 N. E., 365, the facts were that one Taylor, the relator, had been appointed administrator of an estate by the Probate Court of Franklin County. The day following his appointment one Kilbury was appointed administrator of the same estate by the Probate Court of Delaware County. Taylor brought an action in prohibition against the probate judge of Delaware county and this court unanimously held in a *per curiam*opinion:

> “The Probate Court of Franklin County acquired jurisdiction over the estate involved in this controversy, and under the provisions of Section 10498, General Code [now Section 10501-55, General Code], that jurisdiction is exclusive of any other probate court. It follows that under the facts stated in the petition the Probate Court of Delaware County has not jurisdiction of said estate * * V’

I am of the opinion that the reasoning of this court in the *Taylor case*is applicable to the present case, and that under the exclusive jurisdiction acquired by the Probate Court of Hamilton County the alleged later will of decedent should have been filed in that county.