Betz v. Betz. of the alimony as alleged by the defendant in error, who afterwards filed a reply thereto, and after a full hearing was had upon the merits of the claims of said parties said common pleas court found that payment of said decree for alimony had been made by the defendant in error, as alleged by him in his petition, and said temporary injunction was thereupon made perpetual. The plaintiff in error afterward filed a petition in error in this court to reverse said judgment of said common pleas court on the ground that said court had no jurisdiction to hear said last named cause for the reason that the probate court of said county had first acquired and retained jurisdiction thereof, and that if the defendant in error was seeking any relief his remedy was by motion in said probate court. The rule that a judgment or lien for alimony is a continuing and subsisting claim against the husband and that it does not become dormant, nor become affected by injunction or other proceedings until paid is well recognized; but not unlike any other obligation created by the judgment of a court, when such judgment or lien for alimony is paid, such obligation is discharged. Here, it was claimed that the decree for alimony, made and entered by the probate court, was paid, and because of this alleged payment and satisfaction of said decree the sale of the property of the defendant in error, sought to be reached by the plaintiff in error on execution, was enjoined upon petition filed by the defendant in error setting up such payment and satisfaction of said decree. This action of the common pleas court is assigned as error, the plaintiff in error contending that said court had no jurisdiction over the subject-matter of said. proceeding. The record herein shows that the defendant in error filed a petition in said court setting up payment of said alimony adjudged against him; that the plaintiff in error was duly served with process and voluntarily submitted herself to the jurisdiction of said court by filing an answer therein; that upon the hearing thereof she made the defense alleged in her said answer, and that said court, after hearing had upon the merits of the claims of the respective parties thereto, by its order made said injunction perpetual. Under this state of facts were the rights of the plaintiff in error determined and con Licking County Appeals. cluded in this proceeding? We think they were, and we further think that the proceeding instituted by the plaintiff in error in the common pleas court was a separate and independent proceeding from the action pending in the said probate court, and that said proceeding was not unauthorized by the facts and circumstances of the case. True, a motion filed in the probate court might have served the purposes of the defendant in error, and it might not. Surely it would have been of no avail if not heard and passed on by said court favorably to the rights of the defendant in error before the sale of his property. Whatever the action of the court had it been so filed, we do not think such remedy was exclusive to work out the rights of the defendant in error as found by the court of common pleas; and having submitted to the jurisdiction of said court without objection, we think relief was properly granted to the defendant in error by injunction. In this connection we quote the opinion of Judge White in Miller v. Longacre, 26 Ohio St. 291, 297, who cites therein with approval the principle of law laid down in Crawford v. Thurmond, 3 Leigh (Va.) 65: "Jurisdiction in equity has been maintained to enjoin the enforcement by execution of a judgment which had been paid, notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside." We are of the opinion that the common pleas court had jurisdiction to grant the relief asked for, and the judgment of said court is therefore affirmed, at the costs of the plaintiff in error. Powell and Houck, JJ., concur. EXECUTORS AND ADMINISTRATORS. [Logan (3rd) Circuit Court, October 8, 1909.] *JOHN T. KENNEDY, ET AL., V. JOHN A. PRICE, ADMR. DE BONIS NON. Expenses of Last Sickness and Funeral of Life Tenant Chargeable to Estate in Remainder. Where the consort of a deceased husband or wife received the entire property of said decedent by virtue of a devise for his *Affirmed, no op., Price v. Kennedy, 83 O. S. 472. Kennedy v. Price. or her support during life with the remainder over, and said consort died leaving no estate, the expenses of his or her last sickness and funeral are a legal charge against the estate which passed to him or her for life. DONNELLY, J. This is an action brought by Kennedy Brothers against Judge Price, as administrator, to recover for the funeral expenses and last sickness, etc., of Mr. Hover. The petition is about as follows: that in November, 1907, said Washington Hover died; that Maggie L. Hover, by her will, after directing that all her just debts and funeral expenses and those of her last sickness and expenses of administration of her estate be first paid, said testatrix, by said will, bequeathed and devised all of her estate to her said husband, Washington Hover, named therein as executor, for life, coupled with the power of disposing of and using the same or any part thereof as he should deem best as the same should be necessary for his personal wants, necessities, comforts, etc., for and during the term of his natural life, and further provided that at the death of the said Washington Hover, all of the properties of said estate remaining unconsumed by the said Washington Hoyer should be applied to the payment of certain legacies therein named, amounting to $900, etc. The petition goes on and further alleges that after this time, Washington Hover died; and that the said John T. Kennedy and Harry Kennedy furnished the funeral expenses, coffin and such other things as were necessary for his proper burial; and brought an action against Judge Price, the administrator de bonis non of Maggie L. Hover, the party who made the will and whose property it was. To this petition, the defendant filed a general demurrer and it was tried on that question and the demurrer was sustained. The plaintiffs not desiring to plead further, judgment was entered and such proceedings were had on the record that it is now presented to this court for review. Wshington Hover died without any property, having nothing to pay any of his debts with. This case was submitted by counsel on both sides without any authorities that are applicable to this case being cited. The only question that this Logan County Circuit. court is called upon to decide is as to whether or not the funeral expenses of a person occupying a position or relation under the will of a deceased wife is a necessary charge against her estate; in other words, are the funeral expenses such a charge, as for instance the expenses of his last sickness or doctor bills? That is denied and that is the only question in the case. There is no authority that we could find, except I have a decision of the circuit court at Findlay. That court decided a case that is very similar and in all respects, according to our idea, with the one at bar. It is the case of Charles v. Wachter. A decision was rendered in the circuit court of Hancock county, Ohio, on June 24, 1901, as follows: "Anna Charles, et al. v. Mary Wachter, Administratrix. "Norris, J. "The plaintiff in error as plaintiff below filed their petition making the numerous parties to the action for the partition of certain real estate which they say they together with the other parties named are the tenants in common as the children and only heirs of one Philip Rauen, deceased. They plead the necessary facts for partition and ask that such finding be had as that each may take his interest in severalty. Mary Wachter, as the administratrix of the estate of Lucy Rauen, deceased, files an answer in the action and says, that on the eighteenth day of June. 1871, one Philip Rauen died, testate, seized of the land described in the petition. By his last will, Philip Rauen gave to his wife, Lucy Rauen, now deceased, all his property both real and personal, of which he died seized during her natural life, to be used for her support, and after her death to be divided among his chidren according to the statute of descent and distribution. Said Lucy was made executrix of this will. Lucy Rauen, during her life, used and consumed for her support all of the personal property, and all of the rents and issues and profits of the real estate and died having no estate except that which she received under said will. "The expenses of the last illness of Lucy Rauen and her funeral expenses and cemetery charges amount to $116.50, and the costs of administration of her estate will amount to $20. Kennedy v. Price. "The plaintiffs and defendants, except Mary Wachter, refuse to contribute to defray the expenses of the last illness and burial of Lucy Rauen. "Mary Wachter presents and attaches to her answer a certificate from the probate court showing the amount necessary to pay the charges recited in her answer, and she asks for an order to sell the real estate to obtain the sum necessary to pay said expenses, or that an amount be set apart and paid to her, sufficient to cover these expenses, out of the proceeds of any sale of said property. "To this answer and cross petition, plaintiff filed a general demurrer, which demurrer the trial court overruled. Plaintiffs not desiring to plead further to said answer and cross petition, the court finds the allegations of the same to be true and declares the sum set out in the cross petition to be a lien and charge on the premises described in the petition, and orders the same to be paid out of the proceeds of the sale of said premises. To this finding and judgment of the court, the plaintiff prosecutes error, because the court overruled said demurrer, that the court found the expenses of the last illness and funeral expenses of Lucy Rauen to be a lien on the premises described in the petition; that the court ordered that the same be paid out of the proceeds of any sale of said premises. "By the allegations of this cross petition, Philip Rauen gave by his will, to his wife, Lucy, all of his property during her life to be used for her support. Now, what thought was the testator by this will giving this act? What did he mean by support-'for her support'? What had he in view when he used that word for her support'? "As the court says in Davis v. Davis, 62 Ohio St. 411, 417 [57 N. E. Rep. 317; 78 Am. St. Rep. 725], the will should be fairly ascertained from a consideration" of all the provisions of the will and from his situation at the time. And it may well be added that the purpose of his bequest, when the purpose is given, and the situation and necessities of the object. of his bounty were known to the testator, when the will itself indicates that he knew the situation and necessities present and |