
    EXECUTORS AND ADMINISTRATORS — LIMITATION OF ACTIONS
    [Huron Circuit Court,
    1901.]
    Haynes, Parker and Hull, JJ.
    George W. Crouse et al. v. Louise H. Frybarger et al.
    1. Limitation op Actions not Required to be Specially Pleaded, When.
    When facts and dates relative to presentation and rejection of a claim by an administrator are fully set out, either in the petition or answer, an answer averring that “ the right of recovery has long since been barred ” is sufficient to interpose Sec. 6098, Rev. Stat., providing that after a claim has been rejected upon requisition of an heir or creditor, suit must be brought within six months of the time of such rejection, as a defense to the claim. It is not necessary, under such circumstances, that the statute should be specifically pleaded.
    2. Sections 6097 and 6098, Rev. Stat., Should be Construed Together.
    Section 6097, Rev. Stat., providing that claimant shall, within six months after such dispute or rejection, if the debt, or any part thereof, be then due, oi 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 Sec. 6098, Rev. Stat., providing that after a claim is disallowed by an administrator or executor, the holder shall be required within six months to bring his suit to enforce his claim, are tn pari materia and both should receive the same construction. A claim that would b« barred under Sec. 6097, if rejected by an executor or administrator, is, there' fore, also barred under Sec. 6098, when rejected on the requisition therein provided for, although the words respecting the bar are not repeated in Sec «098.
    
      - 3. Special Statutes oe Limitation Cannot be Waived.
    General statutes of limitation may be waived by an executor or administrator, but statutes of limitation with respect to actions against executors or administrators cannot be waived. Therefore, the allowance by an administrator de bonis non of a claim on a promissory note which was barred at the time by Sec. 6113, Rev. Stat., providing that no executor or administrator shall be held to answer to a suit of a creditor of the deceased unless commenced within four years, is a nullity.
    4. Purpose oe Sec. 6113, Rev. Stat., and Similar Laws.
    The purpose of Sec. 6113, Rev. Stat., providing that “ 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 four years from the time of his giving bond as aforesaid. except in cases hereinafter mentioned,” and of statutes of this character, is to fix the status of estates and property of decedents, so that the same may be dealt with freely and safely, and after claims are barred under such statutes it should not be possible to review or revive them so as to sweep away property acquired otherwise from the heirs or, in good faith, the estate.
    6. Section 6113, Rev. Stat., Runs From: Qualification.
    Section 6113, Rev. Stat., the four /ears’ statute of limitation applicable to executors and administrators begins to run from the time of the qualification of such officers not from the rejection or disallowance of the claim upon requisition under Sec. 6098, Rev. Stat. The four years’ statute is not applicable to cases where the claims are rejected; in such cases the six months’ statute, Sec. 6098, Rev. Stat, is applicable.
    Heard on Error.
    
      C. P. Wickham., for defendant".
    
      A. M. Beattie, for plaintiff, cited:
    Statute of limitations, pleading: 13 Ency. PI. & Pr., 186; 13 Am. & Eng. Ency. Raw, 689, 690.
    Administration cannot waive statute: Minor v. Aylesworth, 18 Fed. Rep., 199; 3 Williamson. Exrs., p. 1803, n. Q; Pulliam v. Pulliam, 10 Fed. Rep., 74, 75, 76.
    Object of such statute:' Harter v. Taggert’s Exrs., 14 Ohio St., 122; 3 Williamson Exrs.,p. 1946, n. U.; lb. 2023, n. T.; Favorite v. Boohers, Admr., 17 Ohio St., 548.
    Operation and in general : Angelí on Rimitation, Sec. 170; Daws v. Shed, 15 Mass., 6, 7; Ex parte Allen, 15 Mass., 58, 60; Pollock v. Pollock, 1 Circ. Dec., 408; Gilbertv. Rittle, 2 Ohio St., 156.
    Administrator de bonis non not a party : Sec. 6098, Rev. Stat.; Green v. Street Railway, 62 Ohio St., 67; Fullerton v. Davis, 1 Circ. Dec., 320, 322 (1 R. 572).
    Proof oí notice of appointment: Green v. Gill, Exr., 8 Mass., Ill; Henry v. Estay, 15 Gray, 336.
   Parker, J.

This is a proceeding in error brought to obtain a reversal of the judgment of the court of common pleas.

The action below was brought by Fannie Reggett and Rouisa H. Frybarger against the plaintiff in error, here on a promissory note which reads as follows:

“$800.00 Norwalk, Ohio, Aug. 16, 1880.
“One year after date we promise to pay to the order of Mrs. Emily Baker eight hundred dollars at First National Bank. Value received with interest at eight per cent, per annum. “ D. A. Baker, Jr.,
“ W. G. Baker,
“ D. A. Baker, Security.’’

Fannie Leggett, one of the plaintiffs below, having died while the action was pending, Carrie Needham was substituted as administratrix of her estate. L- W. Wickham, as administrator de bonis non, was made a party defendant because he represents the estate of D. A. Baker, deceased, D. A. Baker being one of the makers and a surety upon the note. Mr. Crouse was made a party defendant because he had acquired from one oi the heirs of D. A. Baker a part of the land of which D. A. Baker died seized. An effort was being made by L- W. Wickham, as administrator, to enforce the payment of this note and to that end he sought to obtain a fund by bringing to sale the land purchased by Crouse. Crouse gave an undertaking as provided by Sec. 6098, Rev. Stat., whereupon Wickham, as administrator, rejected the claim and therefore a a action was brought in pursuance of that statute and Crouse was joined as a defendant.

The history of the transactions leading up to the beginning of this suit should be stated.

It appears that D. A. Baker, Senior, died on March 16, 1882. His will was admitted to probate on March 20, 1882. The persons nominated in the will qualified as executors and gave notice of their appointment in the Norwalk Chronicle, of the issues of March 28, 30 and April 6, 1882. These persons were D. A. Baker, Jr., W. G. Baker, George E. Baker and Frederick Baker,7who were the sons of D. A. Baker, Sr. It appears that these executors made their final settlement of the estate, on March 29, 1883, and at this time they had on hand for distribution nearly twelve tnousand dollars, which was afterwards duly distributed. Being advised, and believing that notice of the appointment of the executors had never been published as required by law, and that, therefore, the rights of these creditors had not been barred, Mr. Wickham permitted himself to be made administrator de bonis non and allowed the claim, but it afterward transpired that the notice had in fact been published. Mr. Wickham was not appointed administrator de bonis non with the will annexed until January 23, 1895. The note sued on, which I have read, was dated August 16, 1880, and was due one year after date. D. A. Baker, Jr., and W. G. Baker, two of the executors of the will of D. A. Baker, Sr., are principals on the note, D. A. Baker, Sr., being, as I have before stated, a surety.

It appears from the petition, which sets forth a copy of the note and the endorsements upon it, that the interest upon this note was paid year by year from the time it was given until October 16, 1893, when $50.00 interest was paid, but no part of the principal had been paid.

It does not appear that the note was ever presented for allowance to the executors of the estate or that it was ever formally allowed by them; and.these payments of interest do not appear to have been made by any of the executors as such, or out of the funds of the estate, but they appear to have been paid by the two persons who were executors, and at the same time were the principal makers of this note, out of their own funds and on their own personal accounts.

On January 31, 1895, L. W. Wickham, as administrator de bonis non, endorsed upon this note or upon the claim, an allowance of the claim against the estate of D. A. Baker, Sr. Mr. Crouse became owner of a part of the original estate of D. A. Baker, Sr., in December, 1888, by conveyance from George E. Baker, to whom this part had been set off in partition proceedings. This claim was disallowed and rejected by Mr. Wickham, as administrator de bonis non, in pursuance of and in compliance with this requisition on June 15,1898. Plaintiffs were duly notified of this action by Mr. Wickham, and they filed their petition upon the note on December 8, 1898, but with the petition no praecipe for summons was filed, and no summons was even issued upon the petition, but a praecipe was filed on March 29, 1899, asking for summons to be issued for the defendant Crouse, directed to the sheriff of Summit county, and this summons appears to have been duly issued and to have been served upon Crouse on March 30, 1899. No praecipe was ever filed for summons to be issued for Wickham, as administrator, and he does not appear to have formally entered his appearance. '

Whether he by his conduct subsequently entered his appearance, is one of the questions in dispute in the case.

Within three days after judgment was rendered by the court in favor of the plaintiffs on this note, Crouse filed a motion for a new trial on various grounds, and at the same time filed a' motion to set aside and vacate the judgment for the reason that Wickham, as administrator de bonis non, had not been made party to the action ; and on the same day that these motions were filed Wickham,-as administrator de bonis non,on his own motion and without any consultation or agreement with Mr. Crouse about the matter, filed a motion for a new trial setting forth therein substantially the same grounds as those contained in the motion of Mr. Crouse.

It is contended on behalf of the plaintiffs in error, that this claim was barred by various statutes of limitation and that therefore the judgment of the court below is wrong and should be reversed.

The statutes relied upon are, first, Sec. 4980, Rev. Stat., which provides a limitation of fifteen years upon written contracts. Section 6113, ■Rev. Stat., which, at the time this causé of action accrued, provided a limitation of four years as to actions against administrators (this has subsequently been changed to two years) and Sec. 6098, Rev. Stat., to which I have already referred, which provides that after a claim has been rejected upon requisition of an heir or a creditor, the claimant shall be required to bring an action within six months of the time of such rejection.

It is contended on behalf of the defendant in error that the last mentioned statute of limitations is not well or sufficiently pleaded, and that therefore it had not been effectively interposed and can not be taken into account under these pleadings.

The answer of Mr. Crouse contains this paragraph: “ And this defendant further says that if there ever was anything due from the said Daniel A. Baker, Sr., to any one upon said note, the right of recovery has been long since barred, as against said Daniel A. Baker, Sr.”

All of the facts of this transaction, or substantially all that I have recited, had been set forth either in the petition, or in the answer preceding this paragraph, so that they all appear in the pleadings with their dates.

In Jones v. Jones, 41 Ohio St., 417, Sec. 6098, Rev. Stat., was pleaded, and this is said of the method in which it was pleaded and of its sufficiency: “ Where an executor pleaded as one defense, failure to sue within six months after presentation and rejection of the claim, and also as a separate defense, that the claims were ‘ npt sued upon within the time allowed by law and were therefore barred,’ having preceded said averment by a statement of facts showing the lapse of four years before suit, and evidence was before the jury tending to support the four years’ bar, it was error for the court to charge that the answer applied only to the bars of six months and six years.”

In the course of the opinion, Granger, Chief Justice, says, on page 421: “ But it is urged that the first detense as stated presented no fact; that it averred nothing but matter of law. If this was so, the court did not err in treating it as no defense.”

‘‘ The answer begins with a statement of the appointment and qualification of the executor on the 20th day of August, 1872, under a will admitted to probate on that day; that the executor advertised his appointment, settled the estate, paid its debts, and on May 24,1873, filed his final account, which was duly advertised according to law. This preliminary statement should be treated as part and parcel of each of the defenses that follow it, so far as they are relevant thereto. The petition had stated that the claims had been presented to the executor on June 22, 1876. It was unnecessary for the defendant to re-state any fact set up in the petition. Hence, taking that date furnished by the petition, the preliminary general statement in the answer, and the three lines specially designated, ‘ first cause of defense ’ together, we have the following defense, to-wit: The qualification of the defendant as executor was completed on August 20, 1872 ; the plaintiff’s claims were such that he could have called for their allowance as due at any time after said date ; he never presented them until June 22, 1876; he never sued upon them until October 6, 1876; and 1 the same were not presented for allowance, or sued upon within the time allowed by law, and are therefore barred.’ It is true, a shorter statement would have been sufficient. Instead of giving dates that showed the lapse of more than four years, the pleader might have written that, ‘ the action was not commenced within four years from the time,’ etc.
“ Possibly the statement of the appointment ‘ in pursuance of the provisions of said will ’ may be so indefinite, that a motion to make the first defense definite and certain, ought to have been sustained if made. But no such motion was made. The trial proceeded as if the defense was sufficient until the charge of the court in effect struck it from the answer.”

That was held to be sufficient and we think the pleadings set forth the matter as fully and as distinctly in this case as they did in that. There is a good deal of authority to the effect that these special statutes governing administration need not be specially pleaded; but even if this limitation is required to be pleaded as in the case of an ordinary statute of limitation, we think Jones v. Jones, supra, affords sufficient authority for saying that it was well pleaded.

I have pointed out that after this claim was disallowed by the administrator de bonis non, no action was commenced until some nine months and fen days thereafter, the provision of the law being that an action is begun by filing a petition and causing summons to be issued, and as I have said, it is contended that the claim is barred by Sec. 6098, Rev. Stat., which provides that after a claim is disallowed and rejected by the administrator or executor, the holder of such a claim shall be required within six months after such rejection of such claim to bring his action against such administrator or executor to enforce his claim.

The preceding section also provides that if claims are rejected by an administrator or executor, an action shall be begun thereon within six months, and provides specifically and in plain and distinct language, that unless action is begun within six months, plaintiff shall be barred. The statute, Sec. 6097, Rev. Stat., reads- “The claimant shall, within six, months after such dispute or rejection of the debt, or any part thereof, be then due, or within six months alter some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon.”

It is conceded on behalf of the defendant in error, that, under that section of the statute, a claim will be so fully and perfectly barred after the expiration of six months without suit being brought, that it cannot be revived or re-vitalized. There is a decision upon that section by the circuit court of the third circuit, in Pollock v. Pollock, 1 Circ. Dec., 408, in which the matter is discussed at some length, and it is held that a failure of the executor of the estate to plead in bar such statute does not give a right to a judgment on a claim barred thereby ; that a judgment is not valid even though the bar of the statute is not interposed as a defense.

We are of the opinion that these statutes being in pari materia, relating to substantially the same matter, should ,be read together and receive the same construction; that there is no reason for holding or providing that there shall be an absolute bar in one case that does not apply fully to the other case. Although the legislature has not repeated the words respecting the bar in Sec. 6098, Rev. Stat., that are contained in Sec. 6097, Rev. Stat., we think that nevertheless the two sections should receive the same construction and that therefore the claim was barred under Sec. 6098, Rev. Stat.

1 also cite, without taking time to read from it or to comment upon it, Harter v. Taggart, 14 Ohio St., at page 122. I may say in passing, that we are of the opinion that the claim is not barred under Sec. 4980, Rev. Stat., that if nothing else would keep it alive the allowance by the administrator de bonis non, made before the fifteen years had expired, would have had effect. There is no apparent reason why the payments made by the co-makers of the note would not keep it alive, but we have not examined that question.

It is contended that the claim is also barred by Sec. 6113, Rev. Stat., which provides that: “ 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 four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.”

This section was amended in 1896 by making the limitation two years; theretofore it was four years and the statute applicable to the base at bar contained a limitation of four years. There are exceptions in favor of claims that do not accrue until after the expiration of two years, with respect to which further time is given and where additional assets come into the hands of an administrator after the expiration of two years. Neither of the exceptions apply or obtain here. More than four years having expired after the publication of notice of the appointment of the executors and after their qualification, it is apparent that the claim was barred under this section as well as under Sec. 6098; but it is contended that the allowance of the claim by the administrator de bonis non, served to revive it so as to take it out from the operation of this section. Many authorities are called to our attention, to the effect that an administrator may waive the general statute of limitations, but there are many other authorities pointing out a distinction between general statutes of limitation and statutes with respect to actions against administrators and executors, and holding that the latter cannot be waived.

It appeared tnat our statute upon the subject, at least Sec. 6113, Rev. Stat., is copied substantially from the statutes of Massachusetts and ,New Jersey. In the Favorite v. Booher, 17 Ohio St., at page 548, our Supreme Court indicates that th’ construction that had been put upon the Massachusetts statute by the courts of that state before its adoption by our legislatures, should be put upon our statute, by our courts.

Judge White, in co nmenting upon the statute, says:

1 ‘ The section in question is a transcript of one of the sections of the Massachusetts statute and is as follows : * * *
“ Tt? this section, the term ‘creditor ’ is used in a generic sense, and includes all persons having rights in action against the decedent. The section is founded on reasons of public policy ; and its object is to promote the early and final settlen. ent of estates, and to enable distribution to be made of the residuum among those entitled, freed from charges and incumbrances.”
“ Prior to our adoption of this statute it had received a construction in Massachusetts, by which it was held to include this class of liabilities ; and this construction has ever since been adhered to in that state.”

Judge White says ‘urther : “ It is reasonable to suppose that the legislature, in adopting this provision, did so in view of the construction which had been put upon it, and with the intention that it should receive the same construction here. This construction being warranted by the language as well as required by the policy of the statute, ought, we think, to be adopted by us. Angelí on Tim., Sec. 170.”

“ Nor will the fact that the creditor is under the disability of infancy save him from the operation of the bar which the statute interposes.”
“ The general rule in regard to the application of statutes of limitation is, that all persons, whether under disability or not, are barred by fhem, unless excepted from their operation by a saving clause. General words of a statute are to receive a general construction, and unless there is found in the statute itself some ground for restraining it, it cannot be restrained. ”
“ The same principle of public policy that requires the statute to embrace all subjects of demand, also requires that it should be held to embrace all classes of creditors.”

See also Gilbert v. Tittle, 2 Ohio St., 156.

A fuller discussion of the principle involved is found in Pulliam v. Pulliam, 10 Fed. Rep., 53, at pages 74, 75 and 76.

The circumstances of this case, as related, are that Mr. Crouse in good faith, some ten or fifteen years after this estate was settled up and distribution made, purchased a part of the land from one of the heirs. It is said that he took it for a pre-existing debt, but we cannot say that •that changes his legal right or status here. We think the purpose of this statute, and of statutes of this character is to fix .the status of the estate and property of decedents so that persons may buy it and deal with respect to it freely and safely. That after claims are barred under such statutes, it should not be possible to revive them so as to sweep, away the property-of others acquired from the heirs or estate. Great frauds and wrongs might be easily accomplished if the allowance of of barred claims were to be given the effect contended for by defendants in error. We think the purpose of this statute is to make impossible the results sought by defendants in error here.

I cite also Miner v. Aylesworth, 18 Fed. Rep., 199; 3 Williams on Executors, page 1803; Angelí on limitations, Sec. 170; Dawes v. Shedd, 15 Mass., 6, 7; Allen, Ex parte, 15 Mass., 58, 60. We cite some of these authorities from brief of counsel without having had an opportunity to examine them.

The contrary, i. <?., the construction contended for by defendant in error, was held by Judge Sayler of the court of common pleas in Hamilton county. His opinion will be found reported in Joyce v. Hart, 11 Dec. (Re.), 487 (27 B. 144). While he isa very able lawyer and judge for whose opinion we have the greatest respect, we are not satisfied with his reasoning or conclusions and upon this matter we are not inclined to follow him.

It is urged by defendant in error that under the authority of Stewart, Adm’r, v. McDaughlin, Adm’r, 47 Ohio St., at page 555, [28 N. E. Rep., 175] we should hold that the lour years did not begin to run until after the time of the disallowance of this claim by the administrator de bonis non in pursuance of this requisition.

We are not sure that we understand that, per curiam. It is very brief, but we are satisfied that it should not be applied to a case like this. It must have been a case different from this. We can understand why, if a claim has been allowed by an administrator before it has become barred by the four year’ limitation, and is allowed to run along without question until after the expiration of the four years, and then, upon requisition, it is disallowed, that it would be inequitable and unfair to interpose the four years’ bar as a defense. We think that in such a case the six months limitation should obtain even though it might carry the period far beyond four years from the time of the qualification of the administrator or executor. But in the case at bar,¡the claim had become barred by the four years’ limitation before the allowance by the administrator, and we hold therefore that the allowance by him was a nullity, that it could not revive the claim and that the case of Stewart, Admr., vl McEaughlm, Admr., supra, should not be applied; that per curiam must have been based upon a different state of facts.

It is said in that case that where a claim is presented by a creditor to the administrator of an éstate, and is allowed, and is afterwards disallowed and rejected by a successor of the one that allowed it, the four years’ statute of limitation provided by Sec. 6113, Rev. Stat., begins to run, in such case, only from the time of the rejection of the claim.

The express provision of the statute is that the four years shall begin to run from the time of the qualification of the administrator or executor, and if the claim had not been barred when it was allowed and the four years expired before it was disallowed, we can not understand why the four years’ statute should be applied; neither can we understand why the four years’ statute should begin to run from the date of disallowance. It seems to us the four years’ statute would be entirely inapplicable to that state of facts ; that the only limitation would be six months ; that a person would have only six months in which to begin his suit, under Sec. 6098, Rev. Stat. But we are not disposed to quarrel with the Supreme Court upon that subject. We assume that in that case the claim had not been barred by the four years’ statute at the time it was first allowed.

Entertaining this opinion, it becomes our duty to reverse the judgment of the court of common pleas and to remand the cause for a new trial.  