
    Harris v. O’Connell, Admr.
    
      Limitations of actions by creditors — Provisions of section 6113, Revised Statutes — Suit against administrator — Must be within two years — After his giving bond, etc. — Though commenced within six months after rejection of claim.
    
    The provision of section 6113, Revised Statutes, to the effect that an administrator who has given due notice of his appointment cannot be held to answer the suit of a creditor unless it be commenced within two years from the time of his giving bond, applies to a case where the claim, if owing, was due at the death of the decedent, and has not been allowed by the administrator, but has been rejected; and a suit upon such claim will be defeated by a plea of the two years’ statute of limitations if not commenced within two years from the giving of such bond although it may have been commenced within six months after the rejection of such claim, and although the claim was presented to the administrator within the period of two years from the time of his giving bond. Speidel v. Phillips, 78 Ohio St., 194, distinguished.
    (No. 12768 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Hamilton county.
    An action was commenced by Robert Harris, plaintiff in error herein, against John G. O’Connell, defendant in error, in the superior court of Cincinnati by the filing in said court, February 25, 1909, of a petition claiming to recover for services alleged to have been rendered by plaintiff for the deceased from September 15, 1900, until January 20, 1907, as secretary, amanuensis, and companion. The petition further alleged that the services were rendered at the constant request of decedent, and have not been paid for, or any part thereof. On January 21, 1909, plaintiff presented his said claim to the defendant, administrator, for allowance, who thereupon returned the same to plaintiff with his rejection in writing endorsed thereon.
    As a separate and distinct defense the defendant in his answer pleaded as follows:
    
      “V. And by way of defense to plaintiff’s petition, defendant says, that Robert H. Robinson, deceased, referred to in plaintiff’s petition, departed this life on the 20th day of January, 1907; that defendant was duly appointed, gave bond according to law and qualified as the administrator of the said estate of said Robert H. Robinson, deceased, in the probate court of Hamilton county, Ohio, on the 30th day of January, 1907; that notice of the publication of his appointment as such administrator was published on the - days of February, 1907, and proof of such publication was duly filed in the said probate court on the 16th day of February, 1907; that he has continued to serve as administrator of the estate of said Robert H. Robinson, deceased, since his appointment as aforesaid, and that no other administrator has been appointed of said estate; that he has since said appointment at all times resided in Cincinnati, Hamilton county, Ohio. Defendant says that no assets have come into his possession as such administrator, save and except such assets as came into his possession at the time he qualified as administrator as aforesaid on the said 30th day of January, 1907; that plaintiff was a resident of Cincinnati, Hamilton county, Ohio, at the time the said Robert FI. Robinson, deceased, departed this life and plaintiff then knew of his death; that the plaintiff herein had personal knowledge of defendant’s appointment and qualification as administrator as aforesaid, at the time of his appointment and qualification; that plaintiff’s alleged claim and cause and right of action, if he had any, accrued at the death of Robert H. Robinson, deceased, to-wit: on the 20th day of January, 1907; that said alleged claim was not presented to this defendant as administrator, as aforesaid, for allowance until the 21st day of January, 1909; that said claim was by this defendant rejected on the 22d day of January, 1909, and that suit thereon was not commenced, against this defendant, until more than two years after the appointment and qualification of defendant as administrator of the estate of said Robert H. Robinson, deceased, and until more than two years after the defendant gave bond as aforesaid as such administrator, to-wit, 25th day of February, 1909. Defendant says the right to sue him as administrator of said Robert H. Robinson, deceased, on the alleged claim of plaintiff set forth in his petition, was, at the time said petition was filed herein, and still is barred by the statute of limitation, by virtue of section 6113, Revised Statutes of Ohio, which this defendant pleads and relies on as a bar to plaintiff’s right of recovery herein.”
    To this defense the plaintiff interposed a demurrer on the ground that the same does not state facts sufficient to constitute a defense.
    This demurrer being overruled, and the plaintiff not wishing to plead further to said defense, judgment was rendered against the plaintiff dismissing his petition. This judgment being affirmed by the circuit court, the plaintiff here asks a reversal of both judgments.
    
      Mr. Orville K. Jones and Mr. Joseph W. O’Hara, for plaintiff in error.
    Sections 6097 and 6113 are both remedial statutes, and should be liberally construed.
    Both of the above sections appear in chapter 2, title 2, part third of the Revised Statutes, under the heading “Civil Procedure,” and part third is designated as “Remedial.”
    In the first chapter of title 1, under the general and preliminary provisions, the following rule is laid down: “Sec. 4948. (Construction of part three.) The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice,” etc.
    This rule is recognized and applied in Springfield v. Walker, 42 Ohio St., 543; Mock v. Bowman, 2 C. C., N. S., 574.
    As sections 6097 and 6113 appear in the same chapter and title of the' statutes, they are a part of the same system of legislation and in pari materia, and each • should therefore be construed with due regard to the other.
    This principle is well settled, and we therefore only cite the following cases in support of it: Cincinnati v. Guckenberger, 60 Ohio St., 353; State, ex rel., v. Jones, 66 Ohio St., 453.
    As section 6113 provides a general limitation for actions against an estate, whereas section 6097 is of a special nature, and only provides for actions against an estate upon claims which have been rejected by the administrator, the latter section controls.
    Where there is any conflict or discrepancy between statutes of a general and those of a special nature pertaining to the same subject-matter, it is a well settled rule that the special provision may be regarded as an exception to the general, and as controlling the particular class of cases to which it relates. Cincinnati v. Holmes, 56 Ohio St., 114; Doll v. Barr, 58 Ohio St., 120; Ambrose v. Byrne, 61 Ohio St., 155; Speidel v. Phillips, 78 Ohio St., 199; Mitchell v. State, 78 Ohio St., 347.
    The cases of Stewart v. McLaughlin, 47 Ohio St., 555, and Speidel v. Phillips, supra, were approved and followed, and strong support given our contention, in the very recent case of Bray v. Darby, 82 Ohio St., 47. Haymaker's Exrs. v. Haymaker, 4 Ohio St., 272; Bradley v. Vail, 48 Conn., 375; Continental Life Ins. Co. v. Barber, 50 Conn., 567.
    
      Mr. Albert D. Shockley, for defendant in error.
    Is it not plain to be seen that the enforcement of section 6113 cannot work a hardship upon the creditor; the situation is one for which he alone is responsible. 2 Mass. Gen. Laws, page 1294.
    It is true that there are exceptions mentioned in section 6113, but they do not apply to the present case and section 6097 is nowise referred to. The important thing desired to be accomplished by the statute was to fix a positive time for the settlement of estates, namely two years. In this connection the language of the supreme court in the case of Jones v. Jones, 41 Ohio St., 420, is pertinent.
    It is unquestionably the general policy of the state to have estates closed up as promptly as possible, and this is so, in reference to every particular part of the administration process. Harter, etc., v. Taggart’s Exrs., 14 Ohio St., 122; Miller v. Ewing, 68 Ohio St., 183.
   Spear, C. J.

The answer and demurrer thereto present for consideration the question which of two statutes of limitations applies to the case, section 6113 or 6097, of the Revised Statutes. Provisions of those sections pertinent to the case are:

“Sec. 6113. (Limitations of actions by creditors.) No executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within two years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.”

“Sec. 6097. (When claim barred, if not sued within six months after its rejection; what shall be deemed a rejection of a claim.) If a claim against the estate of any deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection', if the debt, or any part thereof, be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be-forever barred from maintaining any action thereon; and no action shall be maintained thereon after the said period, by any other person deriving title thereto from such claimant.”

That is to say, is the case at bar ruled by the statute providing for a two year limitation after qualification by the administrator, (section 6113), or by the six months limitation prescribed after the claim has been rejected? The courts below applied the two year limitation. Counsel for plaintiff in error contend that this construction is erroneous, their claim being that, notwithstanding the limitation of two years prescribed by section 6113, a creditor is entitled to the benefit of the six months allowed by section 6097 for bringing an action upon a rejected claim after date of rejection where such claim is presented to the administrator within the period of two years from the time of his giving bond. In support of this contention they further claim that sections 6097 and 6113 are remedial and should be liberally construed; that, being part of the same system of legislation, they must be construed together, and that section 6113 provides only a general limitation for actions against an estate whereas section 6097 being of a special nature and providing for actions against an estate on claims which have been rejected by the administrator, the later, section' controls. If these premises were all admitted the conclusion of course would not necessarily follow, for the ■intent and purpose of the general assembly in enacting the legislation would remain to be ascertained, and this from a consideration, not only of the sections cited but of the entire legislation which bears upon the subject, the inquiry to be approached with a purpose of ascertaining its spirit and of giving effect to all its parts, and of avoiding, if possible, conflict between the several provisions. After such consideration we find ourselves unable to agree with the conclusion of the learned counsel.

It cannot, we think, be doubted that the general trend of legislation shows the purpose of the acts bearing upon the matter of settling the estates of deceased persons is to effect as speedy a settlement of them as is consistent with the careful discharge of duty by the administrator and fairness to the creditor. This purpose is disclosed in section 6113 as it now stands. Formerly, and until the act of April 8, 1898, (93 O. L., 91), the limitation was four years. That act reduced it to two years, as given in the extract from the section hereinbefore quoted. Indicating a like purpose is the amendment of section 440, Revised Statutes, May 9, 1902, (95 O. L., 446), providing that the supreme court may advance for early hearing out of their order on the docket “cases involving controversies or questions arising' in the administration, under the laws of Ohio, of the estate of any deceased person.” Other provisions of statute indicating like policy might be specially cited, but we deem it unnecessary.

Like construction of our statutes has been given by this court in a number of cases cited by counsel, notably in Harter v. Taggart, 14 Ohio St., 122, where it is observed by Peck, J., that “the general policy is, undoubtedly, to effect a speedy settlement of the estates of deceased persons at the least possible expense,” adding language pertinent to the present case, that “this obvious policy would be in part defeated if, as is contended, the holder of a doubtful claim cannot be compelled to sue and test its legal validity — -if he abstains from demanding an indorsement of allowance, he may delay until the last hour, and then, when all else is ready for final distribution, he may institute legal proceedings and delay it indefinitely. * * * A construction which carries with it such consequences illy accords with the obvious policy of the statute.”

The same rule of construction is held by Granger, J., in Jones v. Jones, 41 Ohio St., 420, (decided before the passage of the act of April 8, 1898), to this effect: “Considering the controlling importance of a prompt settlement of the estate of a decedent, so that his creditors may be paid, and the shares of his heirs or legatees ascertained and distributed, the provisions that claimants against the estate shall prosecute their claims within so many months, or years, stand upon a footing somewhat different from the ordinary statute of limitations. * * * Such provisions should be construed in furtherance of the main purpose and intent of the entire statute. It is plain that the general assembly considered that four years, 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. This time is clearly defined as four years. Of course this four years ought not to begin to run until the law has completed the creation of a responsible representative of the decedent.” Judge Rockel, in his excellent work on Probate Practice, pages 473 and 530, treats intelligently upon the subject, and to like import.

While the general subject of limitations of actions by creditors against administrators has been involved in a number of cases decided by this court, the precise question on similar facts has not been presented so far as we are aware in any reported case. It is, however, insisted by counsel for plaintiff in error that the question at bar has been directly decided in Speidel v. Phillips, 78 Ohio St., 194, and an extract from the opinion is relied upon in support of the statement. This proposition loses sight of the essential and controlling fact, distinguishing that case from the one at bar, viz: that the claim sued upon had once been allowed by the administrator, while in the case at bar the only action of the administrator upon it was a rejection, and of course it must follow that the language of the opinion should be understood as applying to the case then before the court and not to an essentially different case; so that what is said has reference to the claim of a creditor whose claim has once been allowed, such allowance having suspended the operation of the two year statute, and not necessarily or reasonably to a claim that had never been allowed.

Counsels’ construction of the two sections would permit a creditor whose claim had been rejected two years and six months in which to bring action instead of two years as section 6113 distinctly provides, thus subordinating the provision of section 6113 to the provision of section 6097 and rendering the two inconsistent, and in reality annulling the former section, whereas they are not necessarily inconsistent, but, applying to the situation the well recognized rule that it is the duty of courts in construing statutes to give effect to all the provisions of a statute where that can reasonably be done, the sections cited can be harmonized and full effect given to both. No reason has been given, or can be, we think, why a creditor should be permitted to override the two year limit and delay the settlement of the estate six months simply by putting off the presentation of his claim. Taking the two sections together we are clearly of the opinion that the natural and proper construction and the one consistent with the general legislation on the subject of the settlement of estates, requires the creditor whose claim has not been allowed but has been rejected to sue within two years from date when suit might have been brought as well as within six months from the date of rejection. This construction gives effect to both sections; the opposite construction wholly overrides one.

These views 'are believed to be entirely consistent with all the Ohio cases on the general subject of limitations of actions by creditors of deceased persons, and to harmonize with statutory direction as to the duty of administrators in the regular sequence of steps in the settlement of estates as shown specially by sections 6108, 6109, 6110, these being followed by the section under consideration (6113), which prescribes in direct terms that the administrator shall not be held to answer unless the suit be commenced within two years from the time of his giving bond.

Attention is called by counsel for plaintiff in error to the case of Bradley v. Vail, 48 Conn., 375, and to Con. Life Ins. Co. v. Barber, 50 Conn., 567, as sustaining their contention. There appears to be some support afforded counsels’ claim by the holding in those cases, but neither is precisely analogous to our case and we cannot see that the doctrine of either should be considered as determinative of the question under review. Those cases involve a consideration of the effect of general statutes of limitation upon special provisions bearing on the subject of the settlement of the estates of deceased persons; our case involves construction of statutes of limitation applying only to the settlement of the estates of deceased persons.

These conclusions require an affirmance of the judgments of the courts below.

Affirmed.

Davis, Sháuck, Price and Johnson, JJ., concur.  