Beck v. Schmidt, Admx.

176 N.E. 595, 38 Ohio App. 476, 9 Ohio Law. Abs. 168, 1930 Ohio App. LEXIS 472

• Court: Ohio Court of Appeals
• Decided: May 7, 1930
• Docket: No 181
• Status: Published

Opinions

JUSTICE, J.

It will be observed that the action was commenced within six months from the day that the claim was rejected and within eighteen months from the day the defendant qualified as administratrix.

It will be further observed that the administratrix, prior to the presentation of the claim, had, by the approval of the court of probate, made, after paying all known claims, distribution of the balance of the assets of the estate to the'heirs at law, and had, by said court, been discharged of her trust.

Plaintiff contends that she had eighteen months within which to present her claim to the administratrix for allowance and within which to commence her action.

Defendant contends that the action was not ^maintainable for that prior to the presentation of the claim and the com- ■ mencement of the action, by the approval of the court of probate, the assets of the estate had been distributed, the estate had been closed and the administratrix discharged.

Do the facts pleaded in the second defense constitute, in law, a defense to plaintiff’s cause of action? That was the question before the court below and is the sole question here.

It is undoubtedly true that whatever power the defendant as administratrix possessed with respect to the administration of the estate, was derived from statutory enactment. It is, therefore, imperative that we look to the General Code for the solution of the problem here. The only pertinent sections are 10492-3, 10722, 10740, 10741, 10746, 10748, 10762, 10820, 10836 and 10842.

Manifestly these Sections constitute a part of a system established by our legislature for the administration of estates. They relate to the same subject-matter and should, if possible, be construed together to the end that no conflict shall exist between them, and that full force and effect shall be given to their various provisions. Lewis-Sutherland Statutory Construction, Volume 2, Section 443, page 844.

Coming now .to the problem in hand. Concededly, the action at bar was commenced within six months from the day the claim w,as rejected and within fourteen months from the time the defendant gave bond as administratrix.

Said Section 10722, provides:

“If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or 'rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof, or be forever barred from maintaining an action thereon. . .”

Said Section 10746, in part, provides:

“No executor or administrator shall be held to answer to the suit of any credit- or of the deceased unless it be commenced within eighteen months frófri the time of his giving bond, except as hereinafter provided. . . .”

Obviously the action at bar does not fall under the ban of either of these' Sections.

Admittedly, however, defendant, about nine months after her appointment; rendered upon oath, a final account of her administration, and upon hearing and settlement of such account, was ordered by the court to make distribution of the balance of the assets of the estate to the heirs at law, which she has done.

Said Section 10820, provides:

“Within twelve months after his appointment, every executor or administrator shall render his account of his administration upon oath, and in like manner render such further accounts thereof every twelve months thereafter, and at such other times as the ’court requires, until the estate is wholly settled.” •

Said Section 10836, provides:

“If upon hearing and settlement of such account, a balance due the estate remains in the hands of the executor or administrator, the court in its discretion may order distribution* to be made by him according to law.”

■ Said Section 10842, provides:

“When an executor or administrator has paid over or delivered the money or other property in his hands to the persons entitled thereto as required by the order of distribution, or otherwise, he shall perpetuate the evidence thereof by presenting to the court, within six months after .such order was made, an account of such payments or the delivery over of such property; which, being proved to the satisfaction of the cpurt, and verified by the-oath of the party, shall be allowed as his final discharge, and ordered to be recorded. Such discharge shall forever exonerate the party and his sureties from liability under such order, unless his account be impeached for fraud or manifest error.”

A reading of said Sections 10820, 10836 and 10842, will disclose that none of them, ' Whether considered separately or collectively, limits the time in'which an estate 'sjhall be administered. Thpse Sections, however, should be interpreted, among others, With Sections 10740, 10746, 10748 and 10762. • Otherwise, violence will be done to the rule that statutes which are in parimateria must be, if possible, construed together an’d" so as to harmonize and give effect to their various provisions.

; Applying the above mentioned rule to ; the statutes in question, we are constrained to hold that our legislature intended that •a. claimant such as plaintiff, should haye eighteen months from the day an administratrtix such as defendant, gave her bond, Within which to present her claim for allówance and within which to prosecute her action if said claim was rejected and disallowed, and that an administratrix such .aS.defendant could not by obtaining an order from the court of probate, directing \a distribution of the balance of the assets ,of the estate to the heirs at law and discharging her of her trust, take from plaintiff her said statutory right.

In Harris v. O’Connell, Admrx., 85 Oh St 136, Justice Spear, at page 145, said:

“It is plain that the general assembly considered that four years (it is now only eighteen months) computed from the moment when the law created a responsible representative of the deced- ■ ent, competent to allow or reject claims, and liable to suit upon rejected claims, was as much time as ought to be allowed. for- any ordinary creditor to delay the distribution of an estate.”

To like import are the statements of Jl^dge Rockel in his work on Probate Practice, Sections 552 and 614.

It seems fitting to say in passing, that the exoneration and discharge of defendant are referable only to the items set forth in the distributive account. In the instant case the plaintiff, who was not a party to the proceeding in the court of probate, does not attack either the judgment of the court of probate or the order of exoneration and discharge. Hence,- the pronouncement of our Supreme Court in Crawford, Admr. v. Zeigler, et al., 84 Oh St 224, and the provisions of Section 10842 do not apply.

In the case at bar plaintiff seeks a judgment. As to its satisfaction, in the event one is obtained, we, of course, are not now concerned.

It occurs to us that further comment is unnecessary except to say that the provisions of Section 10741, are, of course, not' applicable to the fact here.

Holding these views, it follows that the judgment of the court below should be reversed. Judgment reversed and cause remanded.