Summary
The Ohio Court of Appeals considered a probate proceeding alleging that Florence Bartell had concealed, embezzled, or conveyed away a promissory note belonging to the estate of Curtis F. Brooks. The court held that the evidence did not support a finding that Bartell had concealed, embezzled, or conveyed away the note because she openly possessed it under a claim of right, and it reversed the judgment with final judgment for the appellant.
Topics
Practice areas
Questions Presented
- Whether the evidence supported a finding that Bartell concealed, embezzled, or conveyed away the promissory note under the applicable probate statute.
- Whether the probate court could order return of the note when the complaint and judgment were based on concealment, embezzlement, or conveyance rather than merely possession.
Holdings
- The evidence did not support a finding that Bartell concealed, embezzled, or conveyed away the note because she openly acknowledged possession under a claim of right and produced the note in court.
- The judgment could not stand on a possession theory because the complaint and judgment were based on concealment, embezzlement, or conveyance; a different question would have been presented if the complaint had charged Bartell with being or having been in possession and the order had rested on that ground.
Key quotations
“we find no evidence in the case before us to justify the court in finding that the complainee “concealed, embezzled or conveyed away” a promissory note” (16-17)
“Judgment reversed and final judgment for appellant.” (17)
Factual background
The estate administrator accused Florence Bartell of concealing, embezzling, or conveying away a promissory note payable to Curtis F. Brooks from Palley-Pierce Inc. Bartell openly and notoriously admitted possessing the note under a claim of right and produced it in court at trial. The probate court nevertheless found her guilty under the concealment statute and ordered her to return the note.
Procedural history
The administrator filed a statutory probate complaint in the Probate Court of Cuyahoga County against Florence Bartell. After trial, the probate court found Bartell guilty as to a note from Palley-Pierce Inc. and ordered its return; the court overruled her motion for a new trial. Bartell then perfected an appeal on questions of law, and the Ohio Court of Appeals reversed and entered final judgment for her.