
    Schindler, Exrx., v. Schindler et al.
    (Decided January 15, 1935.)
    
      Messrs. Culp & Rust, for plaintiff in error.
    
      Mr. A. 8. Beach, for defendants in error.
   Lemert, J.

This is an error proceeding from the Common Pleas Court of Richland county.

The record discloses that on May 16, 1931, Clinton Schindler died; that on May 21, 1931, his will was probated, and that Jessie Schindler was appointed executrix and is still acting in such capacity.

On October 26, 1926, the decedent and his wife execrated and delivered to plaintiff below, John Schindler, a note for seventy-four dollars ($74.00), due in one year; and on November 23, 1926, another note for three hundred dollars ($300.00) was executed and delivered by Clinton Schindler, now deceased, to the plaintiff below, J ohn Schindler.

On April 3, 1926, a written agreement was entered into between Clinton Schindler, and said plaintiff below, J ohn Schindler, in which two hundred and twenty-five dollars ($225.00) was to be paid annually.

On October 13, 1931, the plaintiff below, John Schindler, and the executrix had under consideration these notes and the payments due thereon, and the executrix, acting under mistaken authority, proceeded to execute to the plaintiff below, John Schindler, her note, and further attempted to secure the same by executing a mortgage on lot No. 72 in the village of Lexington, Richland county, Ohio, which lot was in the name of the decedent at the time of his death, and in which by the decedent’s will Jessie Schindler received but a life estate.

The plaintiff, accepted said note and mortgage believing that the executrix had authority to execute same, and turned over said original notes to said executrix.

On or about March 1, 1933, the plaintiff below, J ohn Schindler, learned for the first time that said note and mortgage had no legal effect, and were void, and shortly thereafter, to wit, March 6,1933, presented his claim to the executrix, which presentation not being within the time required by law was rejected.

We know from the pleadings that on April 13, 1933, a petition was filed, and that at the hearing of said claim plaintiff below was granted permission to file an amended petition to conform to the evidence.

The allegations of the amended petition embody the foregoing facts and the surrender of the note and cancellation of the mortgage.

The prayer of the petition asks that the court grant plaintiff below, John Schindler, an order permitting him to file his claim and order allowing same, as provided by Section 10509-134, General Code, and also an order directing the executrix to pay same as provided by law.

The court below granted such order, and error is now prosecuted to this court to reverse such order and finding.

We gather from the record that the will of Clinton Schindler was probated on May 21, 1931, that the new probate law became effective on January 1, 1932, and that the old law, Section 10746, General Code, on limitation of action, would prevail. Said Section 10746, General Code, reads as follows:

“No executor or administrator, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within eighteen months from the time of his giving bond except as hereinafter provided. A creditor whose cause of action accrues after the expiration of eighteen months from the time the executor or administrator gave bond according to law, and before such estate is fully administered, may begin and prosecute such action within six months after the accruing of such cause and before the estate is fully administered. No cause of action against an executor or administrator shall be barred, by lapse of time, until the expiration of six months from the time it accrues.”

On March 1, 1933, the time of discovery of the mistake of the issuing of the note and mortgage, the statute of limitations barred such claim, and the time elapsed had been more than twenty months.

On examination of the pleadings in this case we find that no answer was filed in the court below, and no issue of fact was made by the pleadings, and one to avail himself of the statute on limitations must plead it. It is an affirmative defense and must be pleaded.

The plaintiff below sought to avail himself of the new law for the reinstatement of barred claims, Section 10509-134, General Code, which is as follows:

“Upon petition filed by a creditor or person deriving title from him, whose claim has not been presented within the time prescribed by law, the probate court, if after notice to all interested parties and hearing, it is of the opinion that justice and equity so require, and that the petitioner is not chargeable with culpable neglect in failing to present his claim within the time so prescribed, may permit petitioner to file his claim for allowance, but such allowance shall not affect any payment or distribution made before the filing of such claim, nor ^ shall it prejudice the rights of creditors whose claims were filed within the time prescribed by law.”

An examination of the record before us convinces us that the mistake hereinbefore referred to was a mistake that amounted to a mistake both in fact and law, and it was not such as to charge the petitioner with culpable neglect within the meaning of the statute just quoted.

We are of the opinion that the above statute controls this ease, that the finding and judgment of the court below were fully warranted, and that there is no error therein. It, therefore, follows that the finding and judgment of the court below will be and the same is hereby affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  