
    Naples v. Roberts et al.
    (Decided April 12, 1932.)
    
      Messrs. Hamilton $ Kramer and Mr. Arthur W. Wiles, for plaintiff in error.
    
      Mr. F. M. Marriott, for defendants in error.
   Sherick, P. J.

The plaintiff, Goldie Naples, who is the petitioner in error herein, avers in her petition filed in the trial court on February 21, 1930, that, as a legatee under the will of Evan J. Roberts, her foster father Elisha J. Roberts was entitled to a share of the testator’s estate; that her said father died on August 17, 1910, before the death of the life tenant; and that the estate was thereafter administered by R. D. Roberts and ¥m. P. Penry, who on November 21,1918, filed their final account in the probate court of Delaware county.

It is further averred that neither Elisha J. Roberts, nor any other person legally entitled thereto, has received from such executors any portion of the testator’s estate; that she (the plaintiff), as the only child of Elisha J. Roberts, is entitled to her father’s share; that the probate court found on December 13, 1918, that the sum of $2,167.18 remained in the executors’ hands for distribution, which was then ordered distributed according to law; that one-fifth thereof, together with interest, was due her; and that on April 21, 1930, she demanded payment thereof of the defendants, as executors, and demanded that as legatee she receive the full amount of the estate distributed. The amount now claimed is $1,759.99, no part of which has been paid to her.

To this petition the defendants jointly answer, setting forth three defenses, the first of which only is material to the question here presented. It is alleged therein that the testator died March 15, 1907; that the present executors and plaintiff’s foster parent were appointed executors,on March 20, 1907; that Elisha J. Roberts died as averred'; and that the testator’s widow, the life tenant under the will, died on December 24,1916.

The answer sets forth the filing of the final account, and thereafter, on April 29, 1919, the executors filed their account of final distribution, which was on that day approved and confirmed. The entry of that court thereon recites the executors’ final discharge from all liability under said order of distribution unless their account be impeached for fraud or manifest error.

It is next pleaded that the plaintiff was born September 2, 1901; that after she became of full age no proceedings were ever commenced to impeach the executors’ accounts, or any exception taken thereto; that the first attack thereon was the filing of the petition herein; and that any cause of action, if any existed, accrued more than ten years before this action was commenced, and is now barred by the statute of limitations.

By her reply the plaintiff admits these pleaded facts, and further avers that the executors wrongfully misapplied the sum of $616.31, thereby deceiving the plaintiff and the probate court, and that the executors falsely and fraudulently took credit for having paid debts in the sum stated, which debts did not exist, by which means the funds of the estate belonging to the plaintiff were fraudulently diverted and paid to other persons. She also says that no receipts were ever filed with the account, and that the executors are therefore not entitled to any credits.

Upon this state of the pleading the defendants moved for judgment. This motion the court sustained. It is on this action of the court that the claims of error are made, and on the further action of the court in entering judgment thereon, and in overruling the plaintiff’s motion to vacate the judgment and for leave to further plead.

It is evident from the petition’s averments that the plaintiff’s claim is based on the theory of a continuing and subsisting trust, against which limitations do not run. It is further apparent that the plaintiff charges that the defendants, as legatees, have received that portion of the estate to which she says she is entitled. We specially note this admitted fact for the reason that the reply otherwise avers, in that it is there alleged that this sum was fraudulently diverted and paid to other persons. These claims are directly at variance, both cannot be true, and the theory of the petition is departed from in the reply. We further remark that the claim of the petition admits the truth of' the order of distribution, and distribution made thereunder, while the reply denies its truth and says that it speaks fraudulently.

It is therefore clear that in the respect indicated the reply is a departure from the plaintiff’s theory as set forth in the petition. This is not permissible, and the trial court properly refused to consider the contention of the plaintiff that judgment could not be entered against her when there were facts in dispute, for the only facts not admitted were such as alleged in the departure. It must follow that the preliminary question raised by the plaintiff in this respect must be determined adversely to her.

Further considering the real question in this case, we note the plaintiff’s claim “That there is no statute in this state specifically providing that an action of this kind could be barred by the statute of limitations.” Two sections of the General Code are drawn into ‘question. The first, Section 10848, is as follows: “After thirty days from the time of the settlement of the account of an executor, administrator, or guardian is made, and an order of distribution made thereon by the probate court, if such executor * '* * neglects or refuses to pay to a person interested in such order distribution as creditor, legatee, * * * or otherwise when demanded, his or her share of the estate or property ordered to be distributed, the person so interested may file a petition * * * against the executor * *

Section 10870, General Code, provides: “Such suit also may be brought by a legatee, after he is entitled to the payment of his legacy * * * or other distributee, to recover her share of the personal estate, after an order of the court, ascertaining the amount due to her, if the executor or administrator neglects to pay it when demanded.”

These sections have been considered in Henry, Exr., v. Doyle, Exr., 82 Ohio St., 113, 91 N. E., 990, 137 Am. St. Rep., 769. Therein, at page 119 [91 N. E., 991, 137 Am. St. Rep., 769] it is held that a demand upon and a neglect or refusal to pay are “jurisdictional facts, which are necessary to confer the right to sue.” Therefrom it is argued that until demand is made no legal liability can arise against the executor, and that, if the demand is an essential part of the cause of action, limitations do not run until such demand is made. In support of this view, we are cited to the case of Keithler v. Foster, 22 Ohio St., 27. This authority further holds that, when demand is not made, it shall be presumed to have been made on the last day of the statutory bar.

The defendants meet this argument and authority with the charge that it was plaintiff’s duty to commence her action within six years after the expiration of thirty days from the date of the order of distribution, and cite in support thereof Lease v. Downey, 3 C. D., 235; Duhme, Admr., v. Mehner, 5 O. D. ( N. P.), 107, 3 N. P., 266, and Webster v. American Bible Society, 50 Ohio St., 1, 33 N. E., 297. In the last-styled case it is held: “ 1. An action to recover the amount of a general pecuniary legacy, with respect to which the executor is not charged with any duty except to pay it out of the assets when due, is not founded on a continuing and subsisting trust, nor exempt from the operation of the statute of limitations * * From this it is apparent that Ohio has not followed the trust doctrine adhered to by some jurisdictions. The Webster case further holds that “The cause of action upon such a legacy accrues, when, by the terms of the will or rules of law it becomes due and payable, and the executor has sufficient assets applicable thereto.”

Section 10848, General Code, seems to provide an executor with a thirty-day period of grace in which he is immune from suit, but thereafter he is suable, provided demand has been made and neglect or refusal followed. It is the theory of onr law pertaining to the administration of estates that they shall be quickly administered and terminated, and that the rights and titles derived from and through an estate be speedily brought to repose. It is equally approved of that one should be diligent in the prosecution of his or her claimed rights where there is no disability existing. "We are of opinion that the fallacy of plaintiff’s reasoning appears in that she says that the demand is an essential part of the cause of action. Proof of these facts does not prove her case; they are “jurisdictional facts, which are necessary to confer the right to sue,” as stated in Henry v. Doyle, supra. And as held in Webster v. American Bible Society, supra, the cause of action accrued when by the rules of law the sum became due and payable.

The account of distribution was filed and approved April 29, 1919. Thirty days thereafter the legacy was by law due and payable, as then provided by Section 10848, General Code. On September 2,1919, the plaintiff was of legal age; and, in accordance with Section 11229, General Code, the statute began to run as of that date. Section 11222, General Code, provides that an action upon a liability created by statute, as is the plaintiff’s - claim, shall be brought within six years after the cause thereof accrued. It is therefore apparent that on September 2, 1925, the statute had run to its end, and the bar of the statute in this instance upon the admitted facts is a complete defense, and the court rightly sustained the defendants’ motion for judgment on the pleadings, and that judgment is hereby affirmed.

Judgment affirmed.

Lemert and Montgomery, JJ., concur.  