In re Estate of Dulle

130 N.E.2d 253, 71 Ohio Law. Abs. 114, 1955 Ohio Misc. LEXIS 359

• Court: Putnam County Probate Court
• Decided: June 29, 1955
• Docket: No. 17199
• Status: Published

Opinion

OPINION

By WARREN, J.

On May 6, 1955, one Max Boroff filed a petition in this court for authority to present his claim against the estate of Lawrence Dulle in the amount of $40,000.00 for injuries sustained in an auto-tractor collision. The petition alleges that he had no actual knowledge of the death of Lawrence Dulle or of the appointment of the executrix of said estate in sufficient itme to present his claim within four months of executrix’s appointment, and prayed the court for an order authorizing him to present his claim to said fiduciary.

The petition was heard on June 2, 1955. Both the claimant and the executrix, together with their attorneys, were present.

Such a claim against a decedent’s estate must be filed with the fiduciary for allowance or rejection within four months of the appointment of such fiduciary in compliance with §2117.06 R. C.

By virtue of §2117.07 R. C. a creditor who fails to file his claim with the fiduciary within four months of the appointment may file a petition in the Probate Court for authority to present his claim after such time. Sec. 2117.07 R. C. further provides:

“The Court may authorize such claimant to present his claim to the executor or administrator, if, on the hearing, the court finds as follows:

(A) That the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by §2117.06 R. C.:” * * *

Sec. 2117.06 R. C. is jurisdictional and a creditor must file his claim within four months of the appointment of the 'fiduciary or -be forever barred, unless the creditor can meet one of the requirements stipulated in §2117.07 in which case he may present his claim after four months

In the instant case the undisputed evidence discloses that Lawrence Dulle, a resident of Putnam County, died on November 8, 1954; that letters testamentary were issued by the Probate Court of Putnam County, Ohio, on November 19, 1954; that Max Boroff actually learned of the death of Lawrence Dulle and of the appointment of the executrix on April 27, 1955, and that he had no knowledge of these facts prior to that time.

Secs. 2117.06 and 2117.07 R. C. (formerly §§10509-112 and 10509-134 GC) are statutes of limitation. See Beach v. Mizner, 131 Oh St 481; 3 N. E. (2), 417; and Prudential Ins. Co. v. Bank, 143 Oh St 564.

However, if creditor did not have (1) actual notice of decedent’s death, of (2) actual notice of the appointment of the fiduciary the court must authorize creditor, to present his claim to fiduciary after the four month period has expired.

Estate of Fahle, 105 N. E. (2), 429; 90 Oh Ap 195.

The creditor may present his claim to the executrix.

An entry may be drawn in accordance with this opinion and allowing exceptions to executrix.