Opinion
Nos. 38168 and 38169
Decided December 29, 1964.
Wills — Admission to probate — Appeal on questions of law — Reversal on weight of evidence — Court of Appeals may not enter final judgment, when.
APPEALS from the Court of Appeals for Cuyahoga County.
A proceeding was instituted in the Probate Court of Cuyahoga County by the filing of an application for the probate of a will. A motion to dismiss the application was filed, challenging the jurisdiction of the court and contending that decedent was not domiciled in Cuyahoga County.
The Probate Court overruled the motion and entered an order probating the will.
The Court of Appeals, on appeals on questions of law, reversed the judgment of the Probate Court and remanded the causes with an order to sustain the motion, dismiss the order of probate, and send the will to the Probate Court of Summit County for proceedings according to law.
The allowance of motions to certify the records brings the causes to this court for review.
Messrs. Snyder, Neff Chamberlain, Mr. Raymond E. Cookston and Mr. Owen C. Neff, for appellant.
The domicile of decedent is a question of fact. The records contain sufficient evidence to support the judgment of the Probate Court. The Court of Appeals was in error in substituting its judgment for that of the Probate Court on a question of fact and entering final judgments. In re Estate of Tyler, 159 Ohio St. 492. However, its judgment doing so may be treated as a reversal on the weight of the evidence. See Henry v. Henry, 157 Ohio St. 319.
The judgments of the Court of Appeals are reversed and the causes are remanded to the Probate Court for further proceedings.
Judgments reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.