
    Ardrey et al., Exrs., v. Shell.
    
      Notice of appointment of executor and administrator — What shall he evidence thereof — Section 6o8g, Revised Statutes — Two years’ limitation of actions by creditors — Begins to run, when — Section 6113, Revised Statutes.
    
    The filing in the probate court of proof of publication of notice of appointment by an executor or administrator, required by section 6089, Revised Statutes, is a mode of perpetuating the evidence of such notice, and is for the convenience and protection of the executor or administrator. It forms no- part of the notice to creditors required, to be given within three months after the giving of bond, and is not for the benefit of creditors. Hence, where such notice is duly given by publication within three months after the giving of bond, although proof of such publication is not filed in the probate court until after the expiration of a year from the giving of the bond, the two years’ limitation within which actions may be brought provided by section 6113, Revised Statutes, will begin to run from the date of the giving of the bond.
    (No. 10151
    Decided December 2, 1907.)
    Error to the Circuit Court of Perry county.
    The defendant in error, Emma R. Shell, commenced an action in the court of common pleas of Perry county, October 21, 1904, to recover against the plaintiffs in error, R. G. Ardrey and M. T. Huston, as executors of Sarah Thompson, deceased, upon an account for personal services alleged to have been rendered during the life of the testatrix from May 6, 1898, to August 17, 1899, the claim having been rejected October 20, 1904.
    Among other defenses interposed was the following :
    “Defendants say that they were duly appointed executors by the probate court of Perry county, Ohio, of the said estate on the 21st day of June, A. D. 1902, that thereupon and on said 21st day of June, A. D. 1902, they duly qualified as such executors by entering into a bond to the approval of the said probate court, and further say that they gave due notice of said appointment and qualification as required by law in the New Lexington Tribune, a newspaper printed and of general circulation, in said Perry county, Ohio, for three consecutive weeks, beginning in the issue of said newspaper of the date of June 26th, 1902, and further allege that more than two years have elapsed since the appointment, qualification and the filing of the bond of the said executors and the presentation of the said alleged account and the rejection of the same by these executors and the commencement of this suit, and that the action is barred by lapse of time under the statute of limitations for bringing such action, and that said alleged action did not accrue after the expiration of two years from the time said executors of said estate gave bond according to law.”
    To this the reply alleged that notice of appointment was not given by the executors as required by law; that no return of the alleged notice of appointment or proof of publication thereof was made to the probate court as required by law; that plaintiff had no actual or constructive notice, knowledge or information of the appointment until the-day of-, 1903; and that at the time her cause of action accrued, and for two years thereafter, plaintiff was within the age of minority.
    At the trial counsel for plaintiff requested the court to give in charge to the jury the following:
    “It is admitted in this case that the defendants were appointed executors of the last will of Sarah Thompson, deceased, on the 21st day of June, 1902, and the defendants claim in the first defense of their answer that they gave due notice of such appointment in The New Lexington Tribune, a newspaper printed and of general circulation in this county, for three consecutive weeks, beginning in the issue of said newspaper of the date of June 26th, 1902; if you should find that the defendants did publish this notice, as above stated, then I charge you that the law made it their duty to file their affidavit, or the affidavit of the person employed by them to.give such notice, in the probate court of this county, of the time, place and manner of giving such notice, within one year after giving their bond as such executors, and to have such affidavit with a copy of such notice, recorded in said probate court within one year after giving their said bond; and that if thereupon you should find that the defendants gave such notice, but did not within one year after giving their bond have such affidavit and a copy of said notice filed and recorded as above stated, then I charge you the two years’ limitation pleaded in the second defense of the answer would not apply to this case and would not be a bar to this action.”
    Which charge the court refused to . give, but did charge the jury, among other .things, as follows :
    “If you find from the evidence that the defendants were appointed executors of the last will of Sarah Thompson, deceased, on the 21st day of June, 1902, and that on said 21st day of June, 1902, they duly qualified as such executors by entering into a bond to the approval of the probate court of Perry county, Ohio, and that within three months after their said appointment and qualification as aforesaid, they caused notice of their said appointment and qualification as such executors to be published in a newspaper, printed and of general circulation in said Perry county, Ohio, for three consecutive weeks, then I charge you as a matter of law that the claim of the plaintiff sued upon in this case is barred by the statute of limitations and your verdict must be for the defendants.
    “The mere fact that an affidavit by the executors, or the publisher of the paper was not made, filed and recorded, .together with a copy of the notice in the probate court within one year after said executors gave bond, would not prevent the statute of limitation from barring the plaintiff’s claim. ■
    “If you find from the evidence under the instructions just given you that the plaintiff’s claim is barred by the statute of two years’ limitation, then your labors are at an end, and you will return into court your verdict for the defendant.”
    The trial resulted in a verdict for the defendant. Thereupon the plaintiff prosecuted error to the circuit court, which court reversed the judgment of the common pleas for error in refusing to give the charge requested by plaintiff, and for error in the charge as given. The defendants below seek a reversal of the judgment of the circuit court. Facts are stated in the opinion.
    
      Messrs. Crossan & Binckley, for plaintiffs in error.
    There is but one exception provided in Section 6113, Revised Statutes, and that is where the cause of action accrues after the expiration of the two years, and that does not apply to this case. There being no other exception provided for, none can be considered.
    When exceptions are provided to a general statute, they exclude all others than those expressed and courts are not at liberty to ingraft other exceptions than those expressed upon such a statute. Carrier v. Railroad Co., 44 N. W. Rep., 203; Favorite, by, etc., v. Booher's Admr., 17 Ohio St., 550; Hoiles v. Riddle, Admr., 74 Ohio St., 173.
    Courts can not ingraft on statutes of limitation exceptions not clearly expressed and where the language of the statute is perfectly clear, it is the duty of the court to enforce the law as it finds it. Amy et al. v. City of Watertown, 22 Fed. Rep., 418; Bartol v. Eckert, 50 Ohio St., 43.
    We maintain that section 6089 is merely directory and not mandatory, and that it was intended as a means of preserving and perpetuating the evidence and is for the- convenience of the executor or administrator, and for his protection, and not for the benefit of some belated and. delinquent creditor that has been guilty of laches, and slept on his rights until his day in court has gone by. Admr. of Gilbert v. Admr. of Little, 2 Ohio St., 160.
    What does this language mean? If the affidavit is made it shall be admitted as evidence, but it can not be said to exclude all other evidence. Our administration statutes were taken almost verbatim from the Massachusetts statutes, and these sections (6088, 6089 and 6113) had received there a settled construction before they were adopted in this state.
    This provision of the statute was introduced for the convenience of the executor or administrator. Other evidence of the fact may properly be received and if satisfactory to the jury is of the same avail. Green v. Gill, Exr., 8 Mass., 111.
    When a statute is adopted from another state where it has received a settled construction, such construction placed upon it by the courts of that state is adopted with it. Ives v. McNicoll, 59 Ohio St., 414; Gale v. Priddy, 66 Ohio St., 406.
    Notice of the appointment. of an executor or administrator may be proved by parol, nothwithstanding the requirements that the same must be recorded in the probate court. Croswell on Exrs. & Admrs., 206; Wade on Law of Notice, section 1080; Abbott’s Trial Brief, 561; Abbott’s Trial Evidence, 533 and 892; Schouler’s Exrs., section 418, note 1, p. 510; Henry v. Estey, Admr., 13 Gray, 336.
    The plaintiff’s claim was barred under Section 6113, Revised Statutes. The statutes begin to run from the time when the executor becomes qualified, notice having been duly given and the creditor’s right to sue and recover accrues. Delaplane v. Smith, 38 Ohio St., 415; Jones v. Jones, 41 Ohio St., 420.
    A careful study of these decisions will disclose that the court has held, in each instance, that the actual giving of the notice in the newspaper is the material thing.
    The term “creditor” in Section 6113 is used in a. generic sense and includes all persons having rights in action against the decedent. The disability of infancy will not prevent a claim from being barred under its terms. It is held to include all classes of creditors. Favorite, by, etc., v. Booker’s Admr., 17 Ohio St., 548; Crouse et al. v. Frybarger et al., 12 O. C. D., 254.
    
      Mr. J. E. Powell and Mr. L. A. Tussing, for defendant in error.
    We contend that the executors in this case did not comply with the law so as to be entitled to avail themselves of the two years’ limitation, fixed by said Section 6113, in bar of the well proved case of the plaintiff below.
    The notice (Revised Statutes, Section 6088) must be published within the three months and the evidence thereof must be perpetuated within the one year (Revised Statutes, Sections 6089 and 6126) in order that the executors may set up the two years’ limitation; and if the notice is not published, or if it is published after the three months, or if the evidence of it is not perpetuated within the one year, it becomes a jurisdictional question,' a question of right or power in the executors to plead this statute of limitation, and they can not then set up the two years’ statute, and the evidence of the publication of the notice can not be perpetuated after the one year, except by petition, as provided in Section 6126; in which event the creditor will have two years thereafter in which to commence his action.
    The one year limitation fixed in Sections 6089 and 6126 above quoted is a restriction of a penal nature upon the right of the executor to set up the special two years’ limitation in above Section 6ii3-
    Manifestly, we think, it was the legislative intent that the probate record of the proof of the publication within the three months, showing that the affidavit was filed within the year, should operate as perpetual notice to creditors and as giving perpetual right to the executors to plead the two years’ limitation against all creditors, whether they ever saw the. notice in the newspaper or not, the same as the record of a deed for real estate is notice to the world of its contents. Forward et al. v. Forward et al., 6 Allen, 494; Broderick v. Smith, Admr., 3 Lansing’s, 26.
    We urge another disability or exception to the running of the statute of two years’ limitation, fixed by said Section 6113, by reason of Section 4989, Revised Statutes.
    Mr. Huston, one of the defendant executors, left the state of Ohio after his appointment, and remained “out of the state” thereafter until two weeks before the trial of this case; and he was therefore not in the state two years after his appointment, neither by consecutive months, nor in the aggregate of times, before the commencement of this action.
    The two executors, having reference to the matter of law on the question here involved, are as one person, and the absence of one from the state, for the purposes of this question, is the absence of both.
    Even if Section 4989 did not apply to this case, “an unconscientious defense, founded upon an unfair advantage obtained by a party without fault on the part of his adversary, will not be favored by a court of equity” or any other court. They can not, by legal process or by their own act, put themselves in a position so that we could not have brought the suit in time, if appearance had not been entered, and then plead that the suit, to which they entered their voluntary appearance, and which we could not have maintained but for their appearance, was not commenced in time, and in such case, the statute, Section 6113, begins to run only from the rejection of the claim on October 20, 1904. Treasurer v. Martin, 50 Ohio St., 197; Stahl v. Van Vleck, 53 Ohio St., 149; Stewart, Admr., v. McLaughlin, 47 Ohio St., 555.
    Under all the facts shown by the evidence in this case and the law as we claim it to be, the two years’ statute of limitation did not run at all as against the claim of the plaintiff below. On this question, and as to the applicability of Section 4989 to this case, we cite the following: Stanley v. Stanley, Admr., et al., 47 Ohio St., 225; Gibbons v. Ewell, 1 Handy, 562; Wood on Limitations, sections 245 and 247; Railroad Co. v. Mowatt, 35 Ohio St., 287; Exrs. of Haymaker v. Haymaker, 4 Ohio St., 272; Wintermute v. Montgomery, 11 Ohio St., 443; Burgoyne, Jr., Admr., v. Moore, 12 C. C., 31; Chinn v. Trustees, 32 Ohio St., 236; Hayden v. Pierce, 144 N. Y., 512; Giauque on Settlement of Estates, 1893 Ed., 516.
    The plaintiff below was entitled to have the entire two years in which to present her claim to both of the executors, and have the judgment of both as to whether the claim should be allowed or rejected; and, for this purpose, one executor could not delegate authority to the other to -reject the claim, or to allow it. Croswell on Executors and Administrators; 54 and 55.
   Spear, J.

It appears by the record that the executors were appointed, gave bond and so qualified as such, June 21, 1902. They thereupon caused to be published notice of their appointment in the New Lexington Tribune, a newspaper published and of general circulation in the county of Perry, for three consecutive weeks, beginning June 26, 1902, and continuing in the issues of July 3 and July 10 following. Proof of this publication was filed in the probate court August 24, 1903, and not before. As mentioned in the statement, the plaintiff’s action was commenced October 21, 3904, being two years and four months after the date of the giving of the bond and the due qualification of the executors, but within one year and two months after the filing of the proof of notice in the probate court.

The issue being the two years’ statute of limitation, the concrete question is, at what date did the statute begin to run? An answer to this calls for some examination of the statutes bearing upon the subject. Provision in respect to the giving of notice of appointment is made by sections 6088 and 6089 of the Revised Statutes, which are: “Every executor or administrator shall, within three months after giving bond for the discharge of his trust, cause notice of his appointment to be published in some newspaper of general circulation in the county in which the letters were issued for three consecutive weeks. An affidavit of the executor or administrator, or of the person employed by him to give such notice, being made,* filed and recorded, together with, a copy of the notice in the probate court, within one year after giving bond as aforesaid, shall be admitted as evidence of the time, place, and manner in which the notice was given.” Further provision relating to proof of notice by section 6126 is to the effect that if notice shall not be given of the appointment within the three months, or the evidence shall fail to be perpetuated as hereinafter provided, and can not be made, the court may order and allow such notice to be given at any time afterward, in which case the periods which are limited for the commencement of actions against executors and administrators, and which begin to run as before directed from the date of the administration bond, shall begin to run respectively from the time such order of court is made, if notice be published according thereto. As to actions' already accrued the limitation is provided for by section 6113,. which- is: “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.” The exceptions thereafter mentioned relate only to causes of action which accrue after two years from the time of the giving of the bond, and hence are not applicable to the case at bar.

It is apparent that this is a special statute applying to a particular subject matter. It is further apparent that ,the general purpose of the statute is to facilitate the settlement of estates of deceased persons, and, in aid of that purpose, to limit the bringing of actions against such estates to the period of two years from the giving of the bond provided proper notice of appointment is given, and where the notice has not been given within the time directed, or proof of the same can not be made, the order of the court is made to take the place, in legal effect, as regards the statute of limitations, of the giving of the bond. It is equally apparent, as has been often held (see opinion of Granger, C. J., Jones v. Jones, 41 Ohio St., 417), that this statute is “upon a footing somewhat different from the ordinary statute of limitations behind whose bar the debtor himself may take refuge, and that its provisions should be construed in furtherance of the main purpose and intent of the entire statute.” The circuit court held, and counsel for defendant in error now insist, that proper notice was not given in this case, because proof of the notice of appointment which was published was not filed in the probate court within the time contemplated by section 6089, to-wit : within one year after the giving of the bond, and this is the principal point of contention in the case. Its proper solution depends, as we think, upon an ascertainment of the purpose of the notice and the purpose of requiring proof .of it to be filed in the probate court. Manifestly the object intended to be attained by the notice is that creditors, and all interested, may be apprised of the appointment and thus put upon notice of the necessity of diligence in the preservation of their rights against the estate. How this matter of information to creditors could be materially aided by the presence among the files in the probate court, or on the record, of an affidavit of publication, it is not easy to see, for an examination of the files and record generally in the matter would give to the inquirer full information respecting the appointment without resorting to the proof of publication. But beside this,, creditors are not presumed to search the files or record of the probate court to ascertain the appointment of executors or administrators. Surely they are not required so to search and are not guilty of laches if they fail to do it. This being so, it follows, as we think, that the requirement as to the filing and recording of the proof is for the benefit and protection of the executor or administrator, and not for the benefit or enlightenment of creditors. Section 6126 strikes the keynote when it in terms treats the filing of the proof of notice in the probate court as a method of perpetuating evidence, and its declaration is of special significance as throwing light upon the general purpose - of that provision of the statute. It is true that section 6089 provides that the proof being made in the probate court within one year after giving bond shall be admitted as evidence, but it is nowhere provided that other evidence showing the same fact should not be given, nor that the notice shall be ineffectual if the proof be not made within one year. In other words, the proof to be made in the probate court forms no part of the notice required to be given, and if not part of the notice then it follows that the due publication completes the notice, and the imperative-words of the statute control: “No executor or administrator, after having given notice of his appointment, shall be held to answer to the suit of any creditor unless it be commenced within two years from the time of giving bond.”

The precise question has not been, so far as we are aware, before presented to this courts But our statute on the subject is, in large measure, a reproduction of the statute of Massachusetts, and that statute has been construed by the supreme judicial court of that state in two cases. Neither is precisely analogous on the facts, but the same principle of law is involved in each. In Green v. Gill, Exr., 8 Mass., 111, the executor offered parol evidence that he had given the notice required by statute, but it did not appear that he had made and filed an affidavit of such notice in the probate office. The court held that the provision as to filing proof in the probate office was for the convenience of the executor or administrator, and that other evidence of the fact was competent. The bar of the statute was maintained. Again in Henry v. Estey, Admr., 13 Gray, 336, a similar question arose. No affidavit of the administrator that he had given notice of his appointment, as required by statute, had been filed and recorded. Proof was allowed to be given of the fact by the testimony of other witnesses. This was held not to be error, the court remarking that the mode of perpetuating the evidence of such notice by the filing of an affidavit is merely a cumulative provision for the benefit of the administrator, but his failure to do so does not preclude him from resorting to other evidence to establish the fact of notice. These decisions, while not necessarily binding upon the courts of this state, are strongly persuasive in view of two considerations. They are decisions of a court of very high standing and authority and have material application to the case at bar because of the rule that where a statute adopted from a sister state has received a settled construction in that state, such construction will in general be followed by the courts of this state. Favorite v. Booher’s Admr., 17 Ohio St., 548; Ives v. McNicoll, 59 Ohio St., 402; Gale v. Priddy, 66 Ohio St., 400.

It is, however, insisted by counsel for defendant in error, that the statute did' not begin to run against the plaintiff below because of the fact of infancy as set up in her reply. To allow this claim would, we think, be to place an exception in the statute which the general assembly did not see fit to enact. The language is “any creditor.” Courts are not authorized to engraft exceptions to imperative requirements of a statute even though the statute itself may seem harsh or unjust. Favorite v. Booher’s Admr., supra; Hoiles v. Riddle, Admr., 74 Ohio St., 173; Amy v. Watertown, 22 Fed. 418.

It is further insisted that because of the fact that one of the two executors was absent from the state a portion of the time just prior to the corm mencement of the action, that time should have been deducted from the two years, and had that been done the action would have been begun in time. Whatever gravity might attach to this question under differing circumstances we need not discuss; but in the case at bar, the plaintiff having had no difficulty in finding within the state, indeed, as a near neighbor, one of the executors, nor in presenting her claim to him and obtaining adverse action thereon, and having thereupon herself acted upon the rejection thus obtained, and commenced and maintained her action against both, we are of opinion that the absence from the state a portion of the time of one is an immaterial circumstance in the case.

Other objections to the judgment of the court of common pleas are urged. We have considered them, but find no prejudicial error in the record of proceedings in that court. In this connection it may be added that the cross-petition in error of the defendant in error in this case was needless. Where a defendant in error, desires a reversal in part of the judgment of the circuit court, that is, a modification of it, a cross-petition in error is proper; but where the defendant in error simply wishes to urge grounds for the reversal of the trial court other than those upon which the judgment of reversal by the circuit court was placed, a cross-petition in error is wholly unnecessary.

Our conclusion is that the failure to file in the probate court proof of the notice of appointment within the year, did not prevent the commencement of the running of the statute, and that in holding otherwise the circuit court erred. This conclusion is not required by any previous decision of this court, but, nevertheless, is in accord with the general trend of decisions in cases other than those already cited, viz: Gilbert’s Admr. v. Admr. of Little, 2 Ohio St., 156; Delaplane v. Smith, 38 Ohio St., 413; Gray v. Case School, 62 Ohio St., 1. See, also, Croswell’s Executors and Administrators, 206; Schouler on Executors, section 418.

Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Reversed.

Shauck, C. ]., Price, Crew, Summers and Davis, JJ., concur.  