
    Beck v. Schmidt, Admx.
    (Decided May 7, 1930.)
    
      Mr. Frank T. Dore, for plaintiff in error.
    
      Messrs. Spitler & Flynn, for defendant in error.
   Justice, J.

This case, instituted in the court of common pleas of Seneca county on the 22d day of April, 1922, comes to us upon a petition in error to that court. The action was brought by Helene E. Beck, as plaintiff, against Ella R. Schmidt, administratrix of the estate of Otto F. Schmidt, deceased, as defendant, to recover a certain amount of money claimed to be due and owing to plaintiff by defendant’s intestate.

It is alleged in the petition that plaintiff in April, 1904, delivered to Otto F. Schmidt the sum of $449.50, to be by him kept and invested for her; that he kept said money and controlled its use and investment until the time of his death; that he died on February 16, 1921; that in April, 1922, plaintiff presented a written statement of said sum of money to defendant as such administratrix, and demanded its allowance as a claim against said estate; and that on said day said claim was by said defendant, as such administratrix, rejected and disallowed.

To this petition the defendant filed a second amended answer in which several defenses, separately stated and consecutively numbered, are pleaded. However, none of these defenses, save and except the second, needs be mentioned.

In the second defense it is averred that defendant is, and since the 22d day of February, 1921, has been, the duly appointed, qualified, and acting administratrix of the estate of Otto F. Schmidt, deceased, under appointment of the court of probate of Seneca county, Ohio; that on the said 22d day of February, 1921, notice of her appointment as such administratrix was published in a daily newspaper of general circulation in Seneca county; that on the 17th day of September, 1921, she filed in said court of probate her final account as such administratrix; that said account was duly and legally advertised, and on the 15th day of October, 1921, was settled, allowed, and approved by said court; that on said day said court ordered her to make distribution of the assets of said estate according to law; that after making distribution pursuant to said order she, on the 19th day of November, 1921, filed with said court her distributive account, notice of which was duly given according to law; and that thereafter, upon hearing, said account was allowed and approved by said court, and she was granted a final discharge as such administratrix.

The plaintiff demurred to this second defense upon the ground that said defense upon its face was insufficient in law. The trial court overruled the demurrer, and, upon plaintiff’s representation that she did not desire to further plead, said court dismissed her petition at her costs.

One claim of error is presented: Error of the trial court in overruling the demurrer.

It will be observed that the action was commenced within six months from the day that the claim was rejected, and within eighteen months from the day the defendant qualified as administratrix.

It will be further observed that prior to the presentation of this claim, the administratrix had, by the approval of the court of probate, after paying all known claims, made distribution of the balance of the assets of the estate to the heirs at law, and had, by said court, been discharged of her trust.

Plaintiff contends that she had eighteen months within which to present her claim to the administratrix for allowance and within which to commence her action.

Defendant contends that the action was not maintainable, for, prior to the presentation of the claim and the commencement of the action, by the approval of the court of probate the assets of the estate had been distributed, the estate closed, and the administratrix discharged.

Do the facts pleaded in the second defense constitute, in law, a defense to plaintiff’s cause of action? That was the question before the court below, and is the sole question here.

It is undoubtedly true that whatever power the defendant as administratrix possessed with respect to the administration of the estate was derived from statutory enactment. It is therefore imperative that we look to the General Code for the solution of the problem here. The only pertinent sections are 10492, 10722,10740,10741,10746,10748,10762,10820,10836 and 10842.

Manifestly these sections constitute a part of a system .established by our Legislature for the administration of estates. They relate to the same subject-matter and should, if possible, be construed together to the end that no conflict shall exist between them, and that full force and effect shall be given to their various provisions. Lewis-Sutherland, Statutory Construction (2d Ed.), vol. 2, Section 443, page 844.

Coming now to the problem in hand. Concededly, the action at bar was commenced within six months from the day the claim was rejected, and within fourteen months from the time the defendant gave bond as administratrix.

Section 10722, General Code, provides: “If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof, or be forever barred from maintaining an action thereon.”

Section 10746, in part, provides: “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.” Obviously the action at bar does not fall under the ban of either of these sections.

Admittedly, however, defendant, about nine months after her appointment, rendered upon oath a final account of her administration, and upon hearing and settlement of such account was ordered by the court to make distribution of the balance of the assets of the estate to the heirs at law, which she has done.

Section 10820 provides: “Within twelve months after his appointment, every executor or administrator shall render his account of his administration upon oath, and in like manner render such further accounts thereof every twelve months thereafter, and at such other times as the court requires, until the estate is wholly settled.”

Section 10836 provides: “If upon hearing and settlement of such account, a balance due the estate remains in the hands of the executor or administrator, the court in its discretion may order distribution to be made by him according to law.”

Section 10842 provides: “When an executor or administrator has paid over or delivered the money or other property in his hands to the persons entitled thereto as required by the order of distribution, or otherwise, he shall perpetuate the evidence thereof by presenting to the court, within six months after such order was made, an account of such payments or the delivery over of such property; which, being proved to the satisfaction of the court, and verified by the oath of the party, shall be allowed as his final discharge, and ordered to be recorded. Such discharge shall forever exonerate the party and his sureties from liability under such order, unless his account be impeached for fraud or manifest error.”

A reading of said Sections 10820,10836 and 10842 will disclose that none of them, whether considered separately or collectively, limits the time in which an estate shall be administered. These sections, however, should be interpreted with Sections 10740, 10746, 10748 and 10762, among others. Otherwise violence will be done to the rule that statutes which are in pari materia must be, if possible, construed together and so as to harmonize and give effect to their various provisions.

Applying the above-mentioned rule to the statutes in question, we are constrained to hold that our Legislature intended that a claimant, such as plaintiff, should have eighteen months from the day an administratrix, such as defendant, gave her bond, within which to present her claim for allowance and within which to prosecute her action if such claim should be rejected and disallowed, and that an administratrix, such as defendant, could not by obtaining an order from the court of probate directing a distribution of the balance of the assets of the estate to the heirs at law, and discharging her of her trust, take from plaintiff her said statutory right.

In Harris v. O’Connell, Admr., 85 Ohio St., 136, Justice Spear, at page 144, 97 N. E., 49, 51, quotes with approval the following from the opinion of Judge Granger, in Jones v. Jones, 41 Ohio State, page 440; “It is plain that the General Assembly considered that four years [it is now only eighteen months], computed from the moment when the law created a responsible representative of the decedent, competent to allow or reject claims, and liable to suit upon rejected claims, was as much time as ought to be allowed for any ordinary creditor to delay the distribution of an estate.”

Of like import are the statements of Judge Rockel in his work on Probate Practice (4th Ed.), Sections 552 and 614.

It seems fitting to say in passing that the exoneration and discharge of defendant are referable only to the items set forth in the distributive account. In the instant case, the plaintiff, who was not a party to the proceeding in the court of probate, does not attack either the judgment of the court of probate or the order of exoneration and discharge. Hence the pronouncement of our Supreme Court in Crawford, Admr., v. Zeigler, 84 Ohio St., 224, 95 N. E., 743, and the provisions of Section 10842 do not apply.

In the case at bar plaintiff seeks a judgment. As to its satisfaction, in the event one is obtained, we, of course, are not now concerned.

It occurs to us that further comment is unnecessary, except to say that the provisions of Section 10741, General Code, are, of course, not applicable to the fact here.

Holding these views, it follows that the judgment of the court below should be reversed.

Judgment reversed and cause remanded.

Crow, J., concurs.

Hughes, J.,

dissenting. The defendant was appointed and qualified as administratrix of the estate of Otto P. Schmidt, deceased, on the 22d day of February, 1921, and on that date gave notice of her appointment, according to law, in the newspapers of Seneca county. Thereafter, on the 17th day of September, 1921, she filed her final account in the probate court, notice of which was duly advertised, and the same was settled, allowed, and approved by the court on the 15th day of October, 1921; and on said date she was ordered by that court to make distribution of the balance of the assets due the estate, according to law. After making distribution of this balance of the assets, pursuant to this order, she filed her distributive account on the 19th day of November, 1921, notice of which was duly given according to law, and the same, upon hearing, was allowed, and she was discharged of her trust.

In April, 1922, the plaintiff filed her written statement of her claim against this estate with said administratrix, which was rejected and disallowed, and this suit against the administratrix was filed on April 22, 1922.

The petition sets forth the nature of plaintiff’s claim; the death of Otto P. Schmidt; the appointment and qualification of defendant as administratrix; the date of presentation and rejection of her claim; and the prayer for allowance and payment of her claim.

In the second defense found in the second amended answer and cross-petition of the defendant, the other facts above set forth are set out.

The judgment of the court below was in favor of the defendant on a demurrer to this second defense, dismissing plaintiff’s petition.

It will be observed that the claim of plaintiff was filed, and suit started thereon, within eighteen months of, but fourteen months after, the appointment of the defendant as administratrix and after a final distribution of the assets of the estate by . the administratrix, which distribution, however, was made about eight months after her appointment.

The sole question for determination is whether or not an administratrix, after the expiration of more than six months from her appointment, may safely distribute to the heirs the balance of the estate after paying all presented claims for allowance, having first procured an order of the court for distribution, but within the eighteen-month period allowed- under Section 10746 of the General Code, within which period a creditor may sue the administrator of an estate on his claim.

It is conceded by the plaintiff that, if the distribution of the assets of the estate had been solely in the payment of creditors of the estate, she would have no remedy against the administratrix, because of the language found in Section 10741, General Code; but, since the distribution was made to the heirs before the expiration of this eighteen-month period, her position is that she still may sue on her claim and hold the administratrix.

It will be observed, however, that Section 10820 of the General Code requires an administrator to render account of his administration within twelve months after his appointment. Section 10836 provides that, if upon hearing and settlement of such account a balance due the estate remains in the hands of the administrator, the court in its discretion may order distribution to be made by him according to law.

Under subdivision 3 of Section 10492, General Code, the probate court shall have exclusive jurisdiction to direct and control the conduct and settle the accounts of executors and administrators, and order the distribution of estates.

It was said by Judge Donahue in rendering the decision of the court in the case of Crawford, Admr., v. Zeigler, 84 Ohio St., 224, 95 N. E., 743, that the judgment of the probate court is just as conclusive and binding upon the parties as would be the judgment of any other court, and that, before the judgment of any court can be opened up and set aside, it must appear, first, that the court had no jurisdiction of the parties to the action or of the subject-matter of the suit, or, second, that the judgment was procured by fraud of the prevailing party.

It would seem from these and related statutes, as well as from the decisions thereunder, that the policy of our law is that, when it is made to appear that there are no further known claims against the estate, and the administration thereof has been completed, a distribution of the balance of the assets shall be made to the heirs as soon as possible.

While a creditor may at his pleasure defer the presentation of his claim for the full eighteen months, by virtue of Section 10746 above referred to, yet such delay beyond the sixth-month period apparently is at his own risk of finding no estate left for him. This position is strengthened by the language of Section 10842, General Code, which says:

Distribution; Discharge. — “When an executor or administrator has paid over or delivered the money or other property in his hands to the persons entitled thereto as required by the order of distribution, or otherwise, he shall perpetuate the evidence thereof by presenting to the court, within six months after such order was made, an account of such payments or the delivery over of such property; which, being proved to the satisfaction of the court, and verified by the oath of the party, shall be allowed as his final discharge, and ordered to be recorded. Such discharge shall forever exonerate the party and his sureties from liability under such order, unless his account be impeached for fraud or manifest error.”

It may be urged that such a claimant as plaintiff here would still be entitled to the allowance of her claim that she might pursue the distributees who have received the balance of the estate before a just claim has been paid, or that her claim should be allowed so that she might require the administratrix to recover from such distributees a sufficient amount to pay her claim.

The answer to this seems to be found in this Section 10842, above quoted, because by virtue of its terms the administrator is discharged of his trust, and he and his sureties are no longer liable.

WTiat remedy equity provides for plaintiff to pursue the funds distributed to the heirs is not before us for determination.

The demurrer to the second defense, admitting the truth of this situation, that is that the administratrix after a lapse of more than six months made her accounting to the probate court, showing all known debts of the estate paid, and a balance due in her hands for distribution, and there being no proof of the plaintiff’s claim having been brought to her attention until after this distribution made by her of all the balance of the estate, and until after the expiration of fourteen months from the time of her appointment, the judgment of the court was, in my opinion, correctly pronounced in favor of the defendant. For these reasons, I cannot agree with the majority opinion.  