Estate of Glenn

3 Ohio C.C. (n.s.) 608, 1902 Ohio Misc. LEXIS 215

• Court: Hamilton Circuit Court
• Decided: April 2, 1902
• Status: Published

Opinion

This case was heard in the probate court upon exceptions to the inventory filed, and was submitted upon an agreed statement of facts, the substance of which is as follows:

Martin S. Glenn died in April, 1898, leaving Bridget Glenn, his widow, and three children, aged eleven, eight and six years, respectively. By his last will and testament he gave all his property, real and personal, to his widow for life, with remainder to his children. Bridget Glenn was duly appointed and qualified as executrix, and on the--day of May, 1898, published notice of her appointment. On July 13, 1898, she filed an inventory, wherein the appraisers set off the sum of $500 in money, and merchandise of the value of $--, no part of said sum of $500 having been paid. On January 30, 1900, the executrix filed her account in the probate court, which was • allowed and confirmed February 28, 1900. The account contained no charge against the executrix, although she had collected accounts to the amount of $166.77, but it showed a credit of debts and expenses' of administration paid in the sum of $264.15.

On May 14, 1898, she collected $2,000 life insurance, from which fund and from her own money she paid debts of the estate of Martin S. Glenn, other than those mentioned in her account filed January 30, 1900, in the sum of $1,143.62, ■ and was not herself indebted to any one. On July 1, 1900, and subsequently thereto, she became indebted to sundry parties in the sum of $1,578.23.

Bridget Glenn died intestate January 14, 1901, leaving Mary and Laura, her children. The inventory of her estate shows assets in the sum of $2,008.13, of which $600 was set off for the support of the children. The exceptions filed by the creditors are to the allowance of $600 to the children, to the omission from the inventory of the sum of $264.15 paid by Bridget Glenn for the estate of Martin S. Glenn, as shown by her account as executrix, filed January 30, 1900, and the further sum of $1,143.62, paid for the estate of Martin S. Glenn, and also to the omission of the claim of $500 set off to her for twelve months’ support.

The exceptions were sustained by the probate court, and that ( judgment affirmed by the. common pleas court.

The exception to the allowance of $600 to the children is disposed of by the case of Hinton’s Estate, In re, 64 Ohio St., 485, and should have been overruled. (See also Section 6040, Revised Statutes, providing for allowance of year’s support to children under fifteen years).

As to the claim that the sum of $1,143.62 paid to Bridget Glenn for the estate of Martin S. Glenn is a debt of the latter, the burden of proof is upon the creditors excepting to the inventory. The only evidence in support of it is the payment itself, while on the other hand, the failure of Bridget Glenn to file any account of such claim, or institute proceedings for its allowance and collection, raises a strong presumption that she did not intend to charge it against her husband’s estate, but that it should inure to their children. We think, therefore, that the court erred in sustaining the exception to this claim.

Jacob Krummel and John J. Gasser, for plaintiff in error. Closs & Luebbert, contra.

The exception as to the omission from the inventory of the sum of $264.15, we think, therefore, was properly sustained, because in the account filed January 30, 1900, there appears this statement: “Paid by Bridget Glenn, widow,” thereby showing an intention to charge the same against the estate of her husband.

It is urged, however, that the claim was barred by the statute of limitations of two years provided by Section 6113, Revised Statutes; but we think that the limitation began to run only from the allowance and confirmation of the account by the probate court on' February 28, 1900.

The debt owing to Bridget Glenn as an allowance from the estate of Martin S. Glenn for her support being a preferred claim, the presumption is that she applied the book accounts collected in part payment thereof. The residue of the claim is barred under Section 6113, Revised Statutes.

It is contended finally that, there being no bill of exceptions, and the agreed statement of facts not being formally made part of the record, this court can not consider it. The facts being agreed upon by the parties, no bill of exceptions was required, and the judgment entry showing that the case was submitted upon the agreed statement of facts, there would seem to be no necessity for a further entry to make such statement a part of the record. Ish v. Crane, 13 Ohio St., 574; Brown v. Mott, 22 Ohio St., 149; McGonnigle v. Arthur, 27 Ohio St., 251.

Judgment of the common pleas and probate courts reversed and cause remanded.