
    Hawke, Admr., v. Murray.
    (Decided December 11, 1933.)
    
      
      Mr. H. Sunderonan and Mr. George S. Hawke, for plaintiff in error,
    
      Mr. Charles E. Pulse, for defendant in error.
   Ross, J.

This is a proceeding in error to reverse a judgment of the Court of Common Pleas of Hamilton county in favor of the plaintiff therein, James M. Murray. .

The plaintiff brought suit to recover from the ITasehkamp estate the amount of a claim for the funeral services of the decedent, the preparation and burial of the body, a burial lot and headstone, and likewise for interest at the rate of six per cent, upon the principal sum from February 21, 1926.

There is no dispute as to the principal sum involved, the fact being that the administrator has repeatedly tendered this sum to the defendant in error, who has rejected it unless the interest thereon is also paid.

The decedent died in Greenfield, Ohio, December 20, 1925. His will was probated in Hamilton county the following day.

On December 31, 1925, another will, executed a few days before decedent’s death, was filed for probate in Highland county, and probate was refused because decedent was a resident of Hamilton county. The defendant in error presented the same will again to the probate court of Highland county, and probate was again refused.

The Greenfield will was ultimately sent to Hamilton county, and on March 24, 1930, the plaintiff in error was appointed administrator.

The defendant in error presented his bill and the same was approved by the administrator, but without interest. The defendant in error refused to accept payment unless interest was allowed. Suit was filed by defendant in error November 7, 1930.

A will contest involving the Greenfield will was instituted, resulting in its being set aside in April, 1932. The other will was admitted to probate.

It must be borne in mind that the defendant in error could have applied for administration at any time after the death of decedent, and his failure to select the proper tribunal is not chargeable against the estate. He is presumed to know the law.

There is no direct controlling authority in this state announcing when interest shall begin to run upon the claim for funeral expenses. Why the defendant in error selects the date February 21, 1926, is not apparent unless he arbitrarily allows sixty days’ grace on his account. It is charged in his behalf that the interested parties were guilty of the long delay incident to the administration of the estate. As pointed out, they are no more culpable than he, except that they made no effort and he made a futile one based upon an erroneous conception of the facts or law.

However, an examination of the facts shows that those who would naturally be interested in securing an early administration, and who are interested as ultimate distributees, delayed action for an unreasonable time; while, on the other hand, the undertaker did make some effort, though an ineffectual one, to secure his rights.

It must also be borne in mind that Hasenkamp died December 20, 1925, and that the Greenfield will was not sent to Hamilton county until March, 1930, more than four years later, and that no administrator to whom the defendant in error could present his claim was appointed until March 24, 1930, and that he then promptly presented his claim with interest; the same being rejected as to interest on March 31, 1930.

The estate is solvent. Only those who permitted the administration to go unsought for so long a time will be affected. Under these circumstances, we consider justice requires that the defendant in error be compensated for the delay, which, though he might have avoided it, was largely due to the neglect of those in whose behalf his claim for interest is contested.

The instant case must be considered an unusual one, wholly outside of the natural course incident to an administration of an estate. The circumstances, of the case require that the judgment be affirmed.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.  