Thornberry v. Freudiger

28 Ohio Law. Abs. 142, 1937 Ohio Misc. LEXIS 922
CourtOhio Court of Appeals
DecidedNovember 10, 1937
DocketNo 295
StatusPublished
Cited by1 cases

This text of 28 Ohio Law. Abs. 142 (Thornberry v. Freudiger) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thornberry v. Freudiger, 28 Ohio Law. Abs. 142, 1937 Ohio Misc. LEXIS 922 (Ohio Ct. App. 1937).

Opinion

OPINION

By CARTER, J.

This cause is before this court on appeal on questions of law. The appeal is being prosecuted by Lida Bachman only.

Samuel Freudiger, a resident of Monroe County, died on or about the 11th day of July, 1908," possessed of some 400 acres of real estate. No administration was had upon his estate immediately following his decease. However, on the 29th day of July, 1936, an application for letters of administration was filed in the Probate Court of Monroe County, and in this application Jane Freudiger Thornberry, widow of the deceased Samuel Freudiger, states that Samuel Freudiger left surviving him J ane Freudiger, his surviving spouse of the age of 43 years; and as next of kin, Edward Freudiger, a son and Louisiana Riley, a daughter now deceased; leaving the following heirs, Charles Riley, grandson; Glenn Riley, grandson; Mabel Riley, granddaughter; and Wanda Riley, granddaughter, the last three named being minors; that the estate consisted of no personal property but real estate of the probable value of $4000.00; and that there is not to her knowledge any last will and testament of the intestate.

Due notice of this application was given by publication as provided by law, and notice of the time of hearing thereoi*was fixed by the court.

The court on hearing found that an ad[143]*143ministratrix should be appointed, and Jane Freudiger Thornberry was appointed administratrix, bond given, and thereupon letters of administration were issued to her.

Due notice of the appointment was given, and thereupon an inventory and appraisement was made in accordance with law, in which the appraisers fixed the value of the real estate at $3000.00, this being the ■total appraisement of all the assets.

Under property exempt from administration, we find the following entered in the inventory — by the appraisers

“Said decedent leaving a surviving spouse, property previously listed under Schedule “A” is not deemed assets, or to be administered as such. Money $500.00. Also widow’s allowance of $500.”

It is urged that the Probate Court had no jurisdiction after 28 years following the time of the death of the decedent to appoint an administratrix to administer his estate.

Sec 10509-13 GC, provided:

“Administration shall not be originally granted as of right after the expiration of twenty years from the death of the testator or intestate. But, within his county, each probate judge may grant letters of original administration upon the estate of a person deceased, after the expiration of twenty years, upon petition of the next of kin or other person or persons interested, or their agent, and on good cause shown therefor. Before allowing the prayer of such petition, such judge may direct notice thereof to be given, by publication, for a period not exceeding thirty days, in one or more of the newspapers printed in the county where it is filed.”

This statute was followed in this case. The claim of the appellant in this regard is not tenable.

Upon the filing of the inventory and appraisement notice of such filing was given in a newspaper of general circulation in the county.

On hearing thereof the court found that due notice had been given of the filing of the inventory and appraisement, that no exceptions had been filed thereto and, thereupon, allowed and confirmed the same.

The administratrix, thereupon, petitioned the court for allowance of claims consisting of funeral expenses, hospital bills, monument, cemetery lot, doctor bills, merchandise and medicines in the amount of $656.00.

Notice was given of this application to the interested parties, hearing had, and the court found that the above claims aggregating $656.00 were just and valid claims against the estate and allowed same.

Thereupon there being no personal property to pay the above obligations, the administratrix proceeded to file in the Probate Court her certain petition to sell the real estate of the deceased to pay same.

Service was had upon the interested parties, either actual or constructive — , of the filing of the petition to sell the real estate.

At this point in the proceedings Lida' Bachman, who is the only appellant in' this case, first appeared, and moved the court to permit her to intervene and file an answer m the case and stated that she had an interest in the real estate described in plaintiff’s petition.

This motion to intervene was allowed by the Probate Court. Thereupon, the inter - venor filed her answer to the petition to sell the real estate in question, and by way of answer alleged that Samuel Freudiger is deceased; that he was a resident of Mnnroe County; that he died seized of the real estate described in the petition; then denies each and every allegation therein contained, not admitted. And as a second defense she denies that Jane Freudiger Thorn-berry is the duly appointed, qualified and acting administratrix of the estate of Samuel Freudiger, deceased, late of this county, for the reason that the Probate Court had no jurisdiction, and specifically denies that there are any valid debts against decedent’s estate, and for further answer denies each and every other allegation therein contained not admitted. For a third defense she says that if there were any debts against the estate of Samuel Freudiger, the same have been paid by someone other than the personal representative of the estate of Samuel Freudiger, deceased; that the statute of limitations has run against the party paying such debts, and claims that whatever the same might be, by reason thereof, they. are barred from recovering same from the estate.

To this answer a reply was filed setting up the defense of “res ádjudicata”.

The Probate Court proceeded to make disposition of the matters and things set up in the intervenor’s answer and the reply of the plaintiff, and found that the statements in the first defense, admitting the residence and death of Samuel Freudiger and that the decedent died' seized of [144]*144the real estate described, in the petition are true, and that each and every other defense interposed is not true, and the answer held for naught.

Thereupon the widow, by way of answer, claimed dower'in the real estate' sought to be sold, and prayed that the real estate be sold free from her dower and the value of such dower be allowed her in money out of the proceeds of sale of the real estate.

A guardian ad litem was appointed by the court for the minor heirs,.and an answer filed by the guardian which is in the usual form of answers by such guardians.

The issues thus joined, the cause came on for hearing in the Probate Court, the court dispensed with a new appraisement and bond, and thereupon made a finding to the effect that Jane Freudiger Thorn-berry, is entitled to the just and reasonable value of her dower in the premises described m the petition and found that the prayer -of the petition should be granted, and ordered the administratrix to proceed to sell the real estate for cash and to make return thereof of such sale.

Thereupon, Lida Bachman gave notice of appeal to the Court of Common Pleas, the appeal bond fixed at $500.00; bond given, and approved, and thereupon the cause came on appeal to the Court of Common Pleas.

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80 Ohio Law. Abs. 359 (Clinton County Court of Common Pleas, 1959)

Cite This Page — Counsel Stack

Bluebook (online)
28 Ohio Law. Abs. 142, 1937 Ohio Misc. LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornberry-v-freudiger-ohioctapp-1937.