
    (Clark County, O., Probate Court.)
    WILLIAM GILBERT v. JASPER N. MARSH.
    
      Citation, when barred by lapse of time—
    
    1. A motion for citation and attachment proceedings.against an administrator will lie under secs. 6178 and 60á0, until more •than ten years have elapsed from the date •of hearing of the last account filed by such administrator.
    
      Account, when final—
    
    2. An account is not final so long as there are assets in the hands of the administrator yet to be administered upon, and not accounted for.
    
      Citation, when cannot be issued—
    3. A citation cannot be issued between the time of the filing and the hearing of an account, nor before the expiration of ■eighteen months from the date of the administrator’s appointment.
    Citation to file account.
   ROCKEL, J.

The facts in this case are as follows:

In July, 1879, Jasper N. Marsh, the defendant, was appointed and qualified as administrator of the estate of Elizabeth Gilbert, deceased. On August 6, 1879, he filed his inventory in this court, and therein returned “Moneys belonging to the deceased, ■S179.00. ” On March 2,1881,he filed his first final account. In this account he does not ■charge himself with this S179.00, nor does he make any reference to it whatever, so as to show what became of it.

On May 21, 1881, this account was passed upon by the court and he was ordered to -distribute the balance in his hands to the -persons entitled thereto.

On the same day he filed an account of ■final'distribution.and was discharged of his trust. Nothing more appears in the case ■until the 14th day of May, 1891, wüen the -plaintiff,one of the heirs at law of Elizabeth Gilbert, tiled his application fora citation ■to issue against said Jasper N. Marsh, to compel him to “return and file a true ac•count of his administration of said estate of Elizabeth Gilbert, deceased, according to law.” Citation was issued,and the administrator was ordered to appear on June 14th, 1891. to show cause why an attachment should not issue against him.

The administrator now pleads he is not required to account further, and that no attachment should issue against him because the same, by reason of the great length of time since he filed his first and final account, is barred by the statute of limitations.

Such proceeding is not an action of law within the purview of the statute of limitations, but is a simple proceeding in the court of probate, usually preparatory to a suit on the administration bond. But while it may be said that it is usually preparatory to the commencement of a suit on the administartion bond, yet it is not necessarily for that purpose. And the reason given therefore, in Phillips v. Harter, 5 Ohio St., 124,'“that the lapse of time, after the default of an administrator in filing his settlement accounts, which is sufficient to bar an ■action on the administration bond, or to amount to a defense in equity, against a proceeding for a discovery and accounting, will -constitute a sufficient defense against any ! such proceeding by citation or attachment, ” may not apply in all cases. But it is perhaps the best guide in Ohio.

Sec. 6178,Rev. Stats., provides: “If any executor or administrator shall fail to render his accounts as hereinbefore directed, he may be compelled to do so, as in case of failing to file an inventory. * * *. ”

Sec. 6047, provides: If any executor or administrator shall neglect or refuse to return such inventory within three months after his appointment, the probate court shall issue an order requiring such executor or administrator at a short day therein named to return an inventory according to law or show cause before the court why an attachment should not issue against him.”

These are the only statutes that relate to the proceedings of citation.

Nothing in them to indicate that the proceeding would at any item be barred by lapse of time. Sec. 6175 would also seem to imply that the proceedng would not be barred so long as there are assets in the hands of the administrator which are not accounted for. Ihis section reads as follows:

“Every executor or administrator shall within eighteen months after his appointment render his’account of his administration upon oath, and he shall in like manner render such further accounts of his administration and every twelve months thereafter, and also at such other times as may be required by the court, until the estate is wholly settled.”

And it has been frequently held that the mere fact that the administrator has filed what purported to be a final account, did not release him if there were assets in his hands unaccounted for. In McAfee v. Phillip, 25 Ohio St., the supreme court says: “It is apparent that an estate cannot be finally settled until the whole estate administered has been fully accounted for, and passed upon by the probate court, and that for the purpose of accomplishing that object the executor or administrator may at any time after the period for rendering his first account has elapsed, and beforo the proceeding is barred by the statute of limittaion, be required to render an account for any portion of the estate remaining in his hands, not included in any former account rendered, notwithstanding the fact that the former account has been passed upon and settled by the court ” Here the court say that the statute of limitations may apply to the proceedings, but do not inform us what the time may be.

We are thus led to believe that there must be a period of time, the elapse of which will bar a proceeding in citation upon an administrator to account for the assets in his hands remaining unaccounted for. In the absence of anything more conclusive, this period may be determined as suggested in Phillips v. Harter, 50 Ohio St., 124. That is, that the time in which a suit on the administration bond can be brought, or that a bill in equity for discovery and account can be maintained, this, in either case, is by secs. 4894 and 4985 the same, viz: Ten years from the time the action accrues.

The administrator contends that the cause of action accrued at the time he filed his account and not at the time the account was passed upon. Until in January, 1881, the expiration of eighteen months from the time of his appointment, no citation could have issued, nor could any suit have been brought on the bond except by leave of court. From January until March 24, 1881, when he filed his account, a citation * * * might have been issued. But after March 24, 1881, until May 21, 1881, when his account was heard and passed upon,neither citation could have been issued, nor suit brought upon the bond, nor could a bill of discovery and account in equity have been brought.

The proper proceeding within that period of time would have been an exception to the account. But at anytime after May 21, 1881, a citation could have issued to compel him to account for this $179.00.

It seems that under the statute there are but two ways in which an heir can bring suit on the bond. One is under sec. 6211, when he may bring suit after the court has made an order ascertaining the amount due him. This was never done in this case as to this S179.00. The amount ordered distributed, was distributed, and no action would have or could have been maintained by the heirs in this case under this section. What the heir would be required to do would be to have the court first ascertain what was due him. This he could do by citation to the administrator to tile his account. It is true that a citation to file an account might have been issued during the time between the date of the expiration of the eighteen months from his appointment January 9, 1881, and March 24, 1881, when his account was filed. When that account was filed, until it was passed upon, on May 21, 1881, surely no citation to tile an account could issue, for there was then in court his account for adjudication. Otherwise, we would have the strange anomaly of having two accounts for the same estate pending at the same time. This is surely not the intention of the law. The earliest time then when the heir in this case could have proceeded, after the interregnum of January 9, to March 24, in this court, to have gotten the matter in shape, that as distributee under sec. 6211 he could have brought an action on the bond, was May 21, 1881.

The other method that the heir would have been required to pursue, in order to bring an action on the bond, is by leave of court under sec. 6212. This section provides: — “When it shall appear to the probate court, on the representation of any person interested in the estate of any deceased testator or intestate that the executor or administrator has failed to perform his duty, in any other particular than those specified in the two preceding sections, the court may authorize any creditor, next of kin, legatee or other person aggrieved by such mal administration, to bring suit on the bond.”

The duties referred to in the two preceding sections, are under sec. 6210, the failure-to pay the admitted claim or judgment of creditors, etc., and under sec. 6211, already hereinbefore referred to, the sum found due-to an heir or legatee, etc. Of course,it must be made to appear to the court that some breach has accrued, that the administrator-has failed to perform some required duty, before this permission will be granted. Although we cannot say what a court will do. in a case until the case is presented, yet it is very probable that in the present case, if this application for permission to sue had been asked, and it could not have been, asked until the account was filed, for until that time, no one knew that the defendant would not account for this $179.00 in his-account, and I am sure that after the account was filed until its hearing on May 21, 1881 this permission would not have been granted, the court could very properly have said there is now no cause for this-extraordinary proceeding of a suit on the-bond.

File your exceptions to the account and. let us first see, if the administrator has not accounted for everything that came into his hands as such, before you annoy him and hisbondmsen by a suit on this alieged mal administration.

In fact, in this case no such permission. er was granted, and until it was granted, at least the time in which it could have been granted has elapsed, it cannot be said that an action on the bond is barred under sec. 6212.

It seems to me that the proper time for the beginning of the running of the statute in this ease was on May 21, 1881, when the administrator’s account was hoard and passed upon, and when he renounced his trust. And it seems to me that this is not a harsh or unjust construction against the administrator, but rather one in his favor. He was a trustee, and with a strict ruling it might be held that the statute would never run in a case like this. In other states where a limitation has been allowed it is much more than ten years. “If a long time has passed by” says Woerner in his able work on Administration,p. 1185, “after the final settlement ought to have been made, and no steps have been taken by the parties interested, presumption of payment and final settlement may arise, (Barlage v. Detroit Ry. Co., 54 Mich., 564,) varying in the different states as to the time and circumstances. Thus, in Alabama (Austin v. Jordan, 35 Ala., 642,) and in Pennsylvania (Estate of Bently, 9 Phila., 344,) twenty years were held sufficient to raise the presumption, in Arkansas, (State Bank v Williams, 66 Ark.,) fourteen years; in Michigan, (Barlage v. Detroit Ry. Co., 54 Mich., 565,) twebty-one years. -In Virignia, a decree for accounting was refused, where from the lapse of time the loss and destruction of papers and records, and the death of ail the parties cognizant of the transaction, a settlement could not be enforced without great danger of injustice to the administrator. (Stamper v. Garnett, 31 Gratt., 550.)

C. S. Olinger, for Heir.

Keifer & Keifer, for Admr.

It will therefore be held in this case that 'the proceedings in citation and attachment under see. 6178 and 6040, is not barred, and that the time when the limitation of the ..right to begin the action first accrued was May 21, 1881.

i T. B. Fulton, Oity Solicitor, and Edward Kibler, on behalf of Plaintiff.

Follett & Follett, on behalf of Defendant.  