Beck v. Schmidt, Admx. , 38 Ohio App. 476 ( 1930 )

This case, instituted in the court of common pleas of Seneca county on the 22d day of April, 1922, comes to us upon a petition in error to that court. The action was brought by Helene E. Beck, as plaintiff, against Ella R. Schmidt, administratrix of the estate of Otto F. Schmidt, deceased, as defendant, to recover a certain amount of money claimed to be due and owing to plaintiff by defendant's intestate.

It is alleged in the petition that plaintiff in April, 1904, delivered to Otto F. Schmidt the sum of $449.50, to be by him kept and invested for her; that he kept said money and controlled its use and investment until the time of his death; that he died on February 16, 1921; that in April, 1922, plaintiff presented a written statement of said sum of money to defendant as such administratrix, and demanded its allowance as a claim against said estate; and that on said day said claim was by said defendant, as such administratrix, rejected and disallowed.

To this petition the defendant filed a second amended answer in which several defenses, separately stated and consecutively numbered, are pleaded. However, none of these defenses, save and except the second, needs be mentioned.

In the second defense it is averred that defendant is, and since the 22d day of February, 1921, has been, the duly appointed, qualified, and acting administratrix of the estate of Otto F. Schmidt, deceased, under appointment of the court of probate of Seneca county, Ohio; that on the said 22d day of February, 1921, notice of her appointment as such administratrix was published in a daily newspaper of general circulation in Seneca county; that on the 17th day of September, 1921, she filed in said court of probate her final account as such administratrix; that said account was duly and legally advertised, and on the 15th day of October, 1921, was settled, allowed, and approved by said court; that on said day said court ordered her to make distribution of the assets of said estate according to law; that after making distribution pursuant to said order she, on the 19th day of November, 1921, filed with said court her distributive account, notice of which was duly given according to law; and that thereafter, upon hearing, said account was allowed and approved by said court, and she was granted a final discharge as such administratrix.

The plaintiff demurred to this second defense upon the ground that said defense upon its face was insufficient in law. The trial court overruled the demurrer, and, upon plaintiff's representation that she did not desire to further plead, said court dismissed her petition at her costs.

One claim of error is presented: Error of the trial court in overruling the demurrer.

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 prior to the presentation of this claim, the administratrix had, by the approval of the court of probate, after paying all known claims, made 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, prior to the presentation of the claim and the commencement of the action, by the approval of the court of probate the assets of the estate had been distributed, the estate 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, 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 (2d Ed.), vol. 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 was rejected, and within fourteen months from the time the defendant gave bond as administratrix.

Section 10722, General Code, 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."

Section 10746, in part, provides: "No executor or administrator, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within eighteen months from 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.

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."

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."

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 court, 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 shall be administered. These sections, however, should be interpreted with Sections 10740, 10746, 10748 and 10762, among others. Otherwise violence will be done to the rule that statutes which are in pari materia must be, if possible, construed together and 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 have eighteen months from the day an administratrix, such as defendant, gave her bond, within which to present her claim for allowance and within which to prosecute her action if such claim should be 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, Admr., 85 Ohio St. 136, Justice Spear, at page 144, 97 N.E. 49, 51, quotes with approval the following from the opinion of Judge Granger, in Jones v. Jones, 41 Ohio State, page 440; "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 decedent, 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."

Of like import are the statements of Judge Rockel in his work on Probate Practice (4th Ed.), 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, 84 Ohio St. 224, 95 N.E. 743, 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, General Code, 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.

CROW, J., concurs.