Opinion Per Curiam. sumed that it was not intended to be exempt; that the Commission must inquire into moral fitness, and that the exercise of the discretion vested in it by the law will not be controlled by the court, except where the discretion has been abused. And it must be said that where authority has been conferred upon an official or board to perform designated public duties, which require the exercise of discretion to effectuate the law and secure the most beneficial results that may be practicable, it is of high importance that the courts shall not interfere with that discretion except in the circumstances stated. But the question presented by this demurrer is whether the allegations of the answer do not show this position to be one as to which it is not practicable to determine the merit and fitness of applicants by competitive examination within the meaning of the constitution and the provisions of the statute passed thereunder which we have quoted; and, therefore, whether it must be said as a legal conclusion that it is not such a position as the constitution and statute passed thereunder require shall be filled in the manner stated. It is not easy to understand how merit and fitness of the occupant of this position can be determined by competitive examination, because by far the largest and most important element of such fitness is that of integrity and character. That is not a thing to be discovered by competitive examination. It does not proclaim itself. It is a fitness that is "ascertained" by close and intimate knowledge of the applicant and opportunity for observation of him. Opinion Per Curiam. When an appointment is to be made to such a position the appointing officer when quickened by a sense of personal responsibility is more apt to exercise great care and that mental and moral scrutiny and insight which we all know and feel but which we cannot define. The fact that an occupant of a position in the public service is required to handle money, even though in large amounts, is of course not in itself sufficient to mark the place as one for which it is not practicable to determine the merit and fitness. of applicants by competitive examination within the meaning of the constitution; nor to stamp it as a position not to be filled under the direction and within the rules fixed by the civil service commission, which is the administrative arm necessary to give effect to the constitutional mandate and the statute passed thereunder. But the occupant of this position is one who, although not actually termed a deputy by the statute, yet is shown by the allegations of this answer to be one who holds. a fiduciary relation to his principal; and the legislature by the passage of Section 486-8, which exempted such applicants from examinations, was merely giving effect to the letter and spirit of the constitutional provision which is here involved. The name is not of the essence of the place. Some of the elements which are conceded to be essential to the occupant of this position, such as experience, knowledge, or technical equipment, can of course be determined by competitive examination, but the confidential and fiduciary relation is Concurring Opinion, per MERRELL, J. paramount. This paramount condition, as pointed out, cannot be determined by examination, but must be determined by the personal knowledge or the personal confidence of the appointing officer in the vigilance and faithfulness of the deputy or the one occupying the fiduciary relation. This is obviously the thing the legislature had in mind. And just as the qualities mentioned cannot be ascertained and determined by competitive examination, so the question of the nature of the position, when a sufficient showing has been made concerning these essential elements, the question whether it is such position as contemplated by the constitution and the legislation enacted pursuant thereto, in regard to the impracticability of ascertaining merit and fitness by competitive examination, becomes necessarily a judicial one. We think the position is one of those contemplated by the constitution as to which it is not practicable to ascertain the merit and fitness of applicants by competitive examination. The demurrer to the answer will be overruled and the writ denied. Writ denied. NICHOLS, C. J., JONES, MATTHIAS, JOHNSON, WANAMAKER and ROBINSON, JJ., concur. MERRELL, J., concurring. I concur in the judgment on the sole ground that the opposite conclusion would obligate the Secretary of State personally for the neglect or dishonesty of the cashier, with no power on the part of the appointing officer to sat Statement of the Case. isfy himself of the integrity and reliability of the appointee, or in otherwise to protect himself. The legislature by failing to require of the appointee an adequate bond, or any bond, has made the position of cashier, under existing laws, one for appointment, to which it is not practicable to determine by competitive examination the merit and fitness of the applicant. THE STATE, EX REL. VOIGHT, JR., v. LUEDERS, PROBATE JUDGE. Probate court — Jurisdiction-Sale of realty to pay debts - Distribution of proceeds - Section 10783, General Code - Personal judgment against legatee-Writ of prohibition - Issuance of execution Remedy of aggrieved party. 1. In proceedings to sell the real estate of a decedent to pay debts, the jurisdiction of the probate court is limited by statute, Section 10783, General Code, and it is not authorized, on distribution of the proceeds in such proceeding, to render a personal judgment against a legatee of the estate, who has been made a party thereto. 2. The writ of prohibition does not lie to prevent the ministerial act of a probate judge, acting as clerk ex officio, issuing an execution upon a judgment in his court, since such act does not involve judicial nor quasi-judicial functions. 3. When an execution issued against a party is not warranted by a judgment of the probate court, ample remedy is supplied the aggrieved party by application to the court to set aside the writ, or by proceedings in injunction. (No. 16515 Decided April 20, 1920.) IN PROHIBITION. One Lewis Voight, Sr., among other bequests and devises, bequeathed to his son Lewis Voight, Statement of the Case. Jr., fifty shares of the capital stock of the United States Wall Paper Company, but provided in his will that any amount paid, loaned or advanced by him or his estate to his son Lewis Voight, Jr., after September 1, 1907, should be charged against his son Lewis and be a lien and charge against the interest or share bequeathed and devised to him by said last will and testament. In order to effect a settlement of the estate of Lewis Voight, Sr., two proceedings were had in the probate court of Hamilton county, Ohio, one being No. 71037, in which the settlement and final distribution of the estate was sought, the other being No. 8240, seeking, by petition, to sell the real estate of the decedent to pay debts. In both of these cases proceedings were had on the initiative of the executrix of the estate, and, in both, entries were made, as hereafter appear. In Case No. 8240, having in view the provisions of the will creating a charge upon the interest devised to Lewis Voight, Jr., the probate court, in its distribution of the net proceeds resulting from the sale of the property, found that Lewis Voight, Jr., under the terms of the will, was entitled to receive one-sixth of the net proceeds of the sale, amounting to $2,220.06, which the court found was subject to a charge in favor of the estate. Thereupon the court entered the following finding and judgment: "The court finds that said Lewis Voight, Jr., was, at the death of said Lewis Voight, Sr., to-wit, on October 6, 1912, indebted to him in the sum of five thousand one hundred and sixty-three dollars |