Opinion
No. 26074
Decided December 2, 1936.
Probate Courts — Jurisdiction to administer estate exclusive, when — Executors empowered to execute contract for sale of real estate, when — Executors amenable to civil suit on contract, when — Specific performance lies in county of real estate situs — Section 11270, General Code, not repealed by implication — Common Pleas Court has jurisdiction of action for specific performance — Writ of prohibition not issued.
1. Where the administration of an estate has been lawfully committed to the Probate Court of a particular county, the jurisdiction of such court to settle such estate is exclusive.
2. A testamentary grant of power to executors to sell all the properties of the estate, real and personal, except such as is specifically bequeathed, at public or private sale, at such prices and upon such terms of credit, or otherwise, as to them may seem to the best advantage and interest to the estate, and to execute and deliver deeds and other proper instruments of conveyance to the purchaser or purchasers, carries to the executors the power to enter into a contract for the sale of the real estate belonging to the estate and divorces them from the jurisdiction of the court which appointed them over such land, and their only duty to such court relative thereto is to account to it for the proceeds of sale.
3. When such executors enter into a contract of sale of lands of their decedent, the laws of Ohio are read into such contract and such executors are amenable to the same actions, suits and legal processes as other persons.
4. Section 11270, General Code, providing that an action for the specific performance of a contract for the sale of real estate may be brought in the county where the real estate is located, is not repealed by implication by the Constitution and laws of Ohio in so far as these executors are concerned.
5. A Court of Common Pleas of a county where the land in question is located, being a court of general equity jurisdiction, has jurisdiction of the subject-matter of an action for specific performance of a contract for sale of real estate by executors, and this court has no jurisdiction to prohibit its exercise.
IN PROHIBITION.
This is an original action in this court, wherein it is sought to have a writ of prohibition issue restraining Charles G. White as Common Pleas Judge of Clermont county, Ohio, from making any further order or taking any further jurisdiction in Case No. 18686 in the Court of Common Pleas of Clermont county, Ohio, being the case entitled John W. Pattison, plaintiff, v. Curtis C. Williams and Thurza D. Black, executors of the last will and testament of Susan Garrett, deceased, Erwin K. Young and The Clermont Building, Loan Savings Company of New Richmond, Ohio, defendants; and it is further prayed that Judge Charles G. White be ordered to dismiss the proceedings pending before him in such case.
Relators in substance plead in their petition that they are the duly appointed, qualified and acting executors of the last will and testament of Susan Garrett, late of the city of Columbus, Franklin county, Ohio; that they were appointed by the Probate Court of Franklin county, Ohio, on June 2, 1930; that they qualified in such court and have acted as such executors continuously since such time.
A copy of the last will and testament of Susan Garrett, deceased, is attached to the petition. Item 9 of the will provides as follows:
"I hereby authorize and empower my executrix and executor to sell all my properties, real and personal, not specifically bequeathed in kind by the terms of this will, such sale to be public or private sale, at such prices and upon such terms of credit, or otherwise, as to them may seem to the best advantage and interest in my estate, and to execute and deliver deeds and other proper instruments of conveyance to the purchaser or purchasers * * *."
The petition herein further states in substance that on November 16, 1934, Pattison filed the action complained of in the Court of Common Pleas of Clermont county, against the parties hereinbefore named, and during March, 1935, he filed an amended petition, a copy of which is attached to the petition. In such amended petition Pattison alleged that on or about December 20, 1933, he entered into a contract in writing with these executors to purchase certain real estate situate in Clermont county, Ohio, and paid them $500 as part payment therefor, and that such executors, relators here, violated such contract and conveyed the real estate in question to Erwin K. Young. When Pattison filed his amended petition he deposited with the clerk of the court the sum of $4000 as a tender, and he prayed that the conveyance from the executors to Young be set aside and that they be decreed and ordered to convey the lands to him under the power vested in them by the will of their decedent.
There are a number of allegations relative to Young and The Clermont Building, Loan Savings Company which we do not deem important herein, and they are omitted from this statement.
Relators further alleged that they answered Pattison's amended petition, in which answer they denied entering into the contract and denied the payment to them of the sum of $500.
Judge Charles G. White assigned the case for hearing on April 20, 1936, and proceeded to take testimony; whereupon relators asked that the case be dismissed at the conclusion of the testimony, which motion was overruled and thereafter a formal motion was filed to dismiss the cause on the ground that the court had no jurisdiction. A copy of this motion is attached.
Relators further allege that unless prohibited by the court, Judge White will continue to exercise jurisdiction in the case and will determine whether or not he should decree that relators specifically perform their alleged contract.
Respondent demurs generally to this petition.
Mr. Carrington T. Marshall and Mr. C.C. Williams, for relators.
Mr. Hayward D. Gatch and Messrs. Nichols, Speidel Nichols, for respondent.
There is here just one question. If the judge of the Common Pleas Court of Clermont county, Ohio, has jurisdiction of the subject-matter of this action for specific performance, then the writ of prohibition should be refused. If such court has no jurisdiction, then the writ as prayed for should be allowed.
Section 11270, General Code, provides in part as follows:
"An action to compel the specific performance of a contract for the sale of real estate may be brought either in the county in which the subject of the action is situated, or where the defendants, or any of them, reside. * * *"
The Court of Common Pleas is the court of general original jurisdiction and, unless this section is repealed by implication, the suit for specific performance was properly in Clermont county where the land in question was situated.
It is a well established proposition of law that repeals by implication are not favored. Relators claim that the Constitution and laws of Ohio have delegated to the Probate Courts exclusive jurisdiction in cases such as this, and for that reason no other court can have jurisdiction.
To be more specific, they claim that the Probate Court of Franklin county first acquired jurisdiction to settle the estate of Susan Garrett, deceased; that the question raised in the Clermont county case is incidental to the settlement of her estate; and that the jurisdiction of the Probate Court of Franklin county is exclusive.
The executors, under Item 9 of the will, had full power to sell the real estate in question, at private sale, at such price and upon such terms of credit as seemed to them to be most advantageous to the estate.
This delegation of power to the executors under the will carried with it the power to enter into a contract of sale, and their contract of sale, when made, had the same degree of sanctity as any other contract of sale, no more, no less. In other words, the law would require the executors to live up to their contract of sale just as it would require other individuals who bore no fiduciary relation to any one. The fact that these contracting parties were executors gave them no immunity. Their decedent delegated to them through her will as full and complete power to deal with her property, real and personal, as she could have exercised if living, excepting possibly the right to make a gift of it. Nor does the fact that they were executors in any wise affect the remedy.
Relators make the further claim that the Court of Common Pleas of Clermont county cannot compel them to convey lands, the title to which they have already conveyed.
This contention in no wise strengthens their claim to a writ of prohibition. Relators place some reliance on Section 10501-55, General Code, namely:
"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."
This court passed on that section when it was designated as Section 10498, General Code, in the case of State, ex rel. Taylor, Admr., v. Gregory, Judge, 122 Ohio St. 512, 172 N.E. 365, and held that jurisdiction once acquired over an estate is exclusive, and that a writ of prohibition would lie against a second court appointing administrators.
Does this statute and this judgment shed any light on the case before us? We think not. Boiled down, it does establish the law to the effect that the jurisdiction of a Probate Court, once acquired over an estate, is exclusive of every other Probate Court.
Probate Courts are constitutional courts. Their jurisdiction is fixed by Article IV, Section 8, of the Constitution of Ohio, namely:
"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 jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county, or counties, as may be provided by law."
The Court of Common Pleas is likewise a constitutional court, under Article IV, Section 4, of the Constitution of Ohio, which provides:
"The jurisdiction of the courts of common pleas, and of the Judges thereof, shall be fixed by law."
We agree that there is no provision of law giving the Common Pleas Court original jurisdiction in the administration of estates, and we find no fault with the law as announced in the case of Brown, Exr., v. Reed, 56 Ohio St. 264, 46 N.E. 982, that the jurisdiction of the Probate Court to settle the account of an executor is ample, and the jurisdiction of the Court of Common Pleas in such matters is appellate.
The cases of Byers v. McAuley and McAuley v. McAuley, 149 U.S. 608, 37 L. Ed., 867, 13 S.Ct., 906, hold that an administrator appointed by a state court is an officer of the court; his possession of the decedent's property is a possession taken in obedience to the orders of that court; it is the possession of the court which cannot be disturbed by any other court. These are most interesting cases. The opinion, rendered by Justice Brewer, is a brief in itself and does establish the law, in so far as the federal courts are concerned, to the effect that where property is in the actual possession of one court of competent jurisdiction, such possession cannot be disturbed by process out of another court.
In those cases the settlement of the estate in question belonged to the Court of Probate of Allegheny county, state of Pennsylvania, which court had taken jurisdiction and was proceeding with the settlement. Whereupon parties from other states claiming an interest therein filed a bill in equity in the Circuit Court of the United States for the Western District of Pennsylvania, praying for distribution of the estate. The diversity of citizenship was present, and the court assumed jurisdiction and proceeded to distribute the estate. Error was prosecuted to the Supreme Court of the United States, which court reversed the Circuit Court on the ground that a federal court has no original jurisdiction in respect to the administration of a deceased person's estate, and it cannot, by entertaining jurisdiction of a suit against the administrator, draw to itself the full possession of the estate or the power of determining all claims against or to it.
This court is not committed to the practice of following the federal courts in every instance where the question involved is an interpretation of the laws of the state of Ohio, but where the opinion of the federal court is persuasive in such case, we give it careful consideration. The Probate Court once having jurisdiction, is a trier of facts unless otherwise provided by law, but may refer them to a master commissioner as provided by the Probate Code (Section 10501-36, General Code).
It is fundamental that the law of the forum gives to the Probate Court its jurisdiction of the subject-matter of a particular action at law or suit in equity. Neither plea, consent nor artifice can confer it, and its want or absence can be raised at any time.
After having considered all authorities relied upon by relators, our legal problem remains unsolved. We are dealing with a suit for specific performance in this case. The question of a plain, adequate and complete remedy at law is not before us. A proceeding for specific performance is a product of equity jurisprudence. It may supersede the law for more than one reason, namely, inadequacy of damages for breach of contract, or, as in the instant suit, where the party complaining has partially performed his contract and insists that the other contracting parties perform their part of it.
Pattison wants personal action on the part of the executors and he knows that "equity acts in personam." Suits in equity are probably the most civil of all civil suits.
Section 11215, General Code, provides: "The court of common pleas shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace; * * *."
No other jurisdictional grant is required in order to constitute the Court of Common Pleas a court of general equitable jurisdiction. The Probate Court is a court of limited jurisdiction, having only such power as is conferred upon it by the Constitution and statutes of Ohio, and has not the inherent general jurisdiction of common-law and chancery courts. 37 Ohio Jurisprudence, 177, Section 159.
There is no question that the General Assembly of Ohio has in certain instances delegated equitable jurisdiction to the Probate Courts, but a careful perusal of all these grants of jurisdiction fails to disclose the delegation of power to entertain suits for specific performance. As long ago as 1853 this court, in the case of Gilliland v. Admrs. of Sellers, 2 Ohio St. 223, held:
"The decree of a probate court in Ohio, involving the exercise of the general jurisdiction of a court of equity, must be considered as coram non judice and void.
"A decree by such court, on a petition addressed solely to its probate jurisdiction, for the cancellation of a creditor's mortgage, was an attempt to exercise chancery jurisdiction, and utterly void."
Had Sarah Garrett when living made this contract with Pattison and received from him the $500 earnest money, she would, under the law, have been required to answer the suit for specific performance in Clermont county. She is now deceased, but while living, and for aught that appears, in full possession of her faculties, she delegated to her executors all the power of sale and contract of sale relative to the lands in question that she could have exercised if living. She divorced them from the Probate Court of Franklin county, Ohio, in so far as the sale of the lands was concerned, and the only duty they owed to such court was to account for the proceeds of sale.
These executors were required to read the laws of Ohio into their contract when they entered into it with Pattison, and they were bound to know that if they did not carry out their contract with him they could, and in all probability would, be subjected to a suit for specific performance in Clermont county where the subject of the contract was located and where the laws of Ohio gave the purchaser authority to prosecute the action.
Pattison does not want money. He wants the land he contracted for and upon which he paid part of the purchase money. No Probate Court has jurisdiction to entertain his suit for specific performance, so he brings it in a court of general equitable jurisdiction in the county where the land is located.
Under such circumstances, is this court warranted in prohibiting the Court of Common Pleas of Clermont county, Ohio, from proceeding with the suit for specific performance, simply because the executors were appointed by the Probate Court of Franklin county, Ohio?
Under the law and under the facts and circumstances, we answer that question in the negative, and the demurrer to the petition for a writ of prohibition is sustained.
Relator not desiring to plead further, a writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
WILLIAMS, J., not participating.