State ex rel. Barbee v. Allen
State ex rel. Barbee v. Allen
Opinion of the Court
The plaintiff is asking that a writ of prohibition issue. The jurisdiction of the probate court of Fayette county in the probate of the will of John B. McLean and in the issuing of letters testamentary thereon is challenged. The probate courts of this state are courts of record and have jurisdiction in probate and testamentary matters. (Sections 7 and 8, Article IV of the Constitution.) It has.been held repeatedly that these courts are in the fullest sense courts of record, belonging to the class whose records import absolute verity, and competent to decide on their own jurisdiction. They have full jurisdiction to adjudicate all questions arising in proceedings properly before them. In the hearing of an application to probate a will a probate court has jurisdiction to fully and finally determine all questions involved in.the application, including that of the domicile of the testator, and the judgment of the court is protected by the same rule as to collateral attack as other judgments of courts of record. Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.
On May 27, 1916, a paper writing dated December 29, 1915, purporting to be the last will and testament of John B. McLean, was offered for pro
The proceeding in Fayette county which .had to do with the probate of the will and the issuing of letters testamentary thereon was one properly before the court and within its constitutional jurisdiction. That court, under the authority of Wilber ding, Admr., v. Miller et al., supra, had power to determine the question of jurisdiction. Counsel in elaborate and exhaustive briefs and in oral argu
“Whether or not the plaintiff in the divorce proceeding had been a resident of the state one year prior to the time of filing his petition for divorce was a question of fact about which there might be,*17 and in this case apparently was, some dispute. In all cases where an inferior court has jurisdiction of the matter in controversy and keeps within the limits prescribed by law for its operation, the superior court should refuse to interfere by prohibition, and it should not consider whether the court below erred in the exercise of its powers, since it has nothing to do with the correctness of the rulings of the inferior court but only with its exercise of jurisdiction.”
It is to be noted that in the application for probate filed in the probate court of Fayette county there was a statement that McLean had an estate in that county, and it is urged by counsel for the defendant that that fact, under the provisions of Section 10511 et seq., General Code, would authorize the probate of the will in that county, although McLean had not been a resident thereof. Counsel for relator, however, say that Section 10511 became a law October 1, 1840, while Section 10604, which provides that upon the death of an inhabitant of this state letters testamentary shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died, did not become effective until November 1st of -that year, and that Section 10511, in so far as it authorizes the original probate of the will of a deceased inhabitant of this state in any county other than the county of last residence, being absolutely inconsistent with the provisions of Section 10604, was repealed by Section 10604. But, in our view of the case, it is unnecessary to consider the question
Again, in this proceeding we are concededly not concerned with the question whether the paper writing admitted to probate by the probate court of Fayette county was or was not the last will and testament of John B. McLean, or whether or not he was competent to make a will on December 29, 1915, while the adjudication of imbecility was in full force and effect and while he was under guardianship. That qttestion, of course, can be determined in an independent action to contest the will.
Writ refused.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.