
    Thomas v. Chamberlain.
    1. A creditor of the estate of a deceased person, whose claim has been duly allowed by the administrator, may prosecute an action thereon against the estate after the expiration of eighteen months from the date of the administrator’s bond, and such further time as may be granted by the court for the collection of the assets of the estate.
    2. Verbal notice to the administrator of an estate, by the widow of the deceased, not to allow a specified claim against the estate, is not sufficient proof of fraud on the part of the administrator for afterwards making such allowance.
    3. In an action against an administrator on a note which matured more than fifteen years before the commencement of the suit, where it is alleged in the pelition that before the expiration of fifteen years from its maturity, the note, duly verified, was presented to the administrator for allowance as a valid claim against the estate and the same was duly allowed, an answer which does not deny the fact of such allowance, , but simply avers that the action was not commenced within fifteen years from the maturity of the note, is bad on demurrer.
    4. Where a claim against an estate has been duly presented to and allowed by the administrator, no further allowance by a succeeding administrator do bonis non, is required by the statute.
    5. The allowance of a claim is not conclusive of its validity against the estate, but it may afterwards be disputed and contested by the administrator who allowed it, or by an administrator de bonis non; but in such case, the statute limiting suits on rejected claims to six months, does not apply.
    6. Where the same person is administrator of the creditor as well as the debtor estate, no formal presentation or allowance of the claim within four years from the date of the bond of the administrator of the debtor estate is necessary, but in such case the claim is extinguished as soon as funds applicable to its payment come into the hands of the administrator.
    
      7. A payment of a part of a claim by an administrator, without disputing the balance is a sufficient allowance of the whole claim.
    Error to the District County of Morrow county.
    The original action was brought by plaintiff in error Smith Thomas as executor of Sophia Snider, against defendant in error, C. IT. Chamberlain, administrator do bonis non of Benjamin P. Truex, in the court of common pleas of Morrow county on November 11, 1873.
    
      The petition stated the following, in substance: On September 3, 1849, Benjamin P. Truex executed to Sophia Snider two promissory notes for $888 each, payable respectively in five and six years after date, with interest annually after three years. Sophia Snider, subsequently, in the year 1849 died, and Smith Thomas was duly appointed executor of her will. In October 1854, Benjamin P. Truex died, and Smith Thomas was duly appointed executor of his will also. At the death of Truex, the notes above described were outstanding in the hands of Thomas as executor of Sophia Snider. Thomas continued to be executor of Truex’ estate until December 1866, and during that period he sustained the relation of executor to each of the estates, he indorsed several payments upon these notes; the first of which was for $246.12 on March 3,1855, and the last, for $52.74- on March 2,- 1865. The amount of payments thus indorsed (including $207.99 paid by Truex in his lifetime) was $1,388.23.
    In January 1867, Joseph Sutherland was duly appointed administrator de bonis non of the estate of Truex, and shortly thereafter the plaintiff in error duly verified the claim of' Snider’s estate against the estate of Truex, based upon said two notes and presented the same to Sutherland' for allowance, whereupon Sutherland, on the 4th day of January, 1868, as such administrator allowed the same in writing as a valid claim against the estate of Truex. Afterwards on February 24,1870, Sutherland having ceased to be administrator, &c., of the estate of Truex, C. H. Chamberlain, defendant, was duly appointed to that office. It is also averred in the petition, that Chamber-land, as such administrator, on January 19, 1871, allowed the balance on said notes as a valid claim against the estate of Truex, and that no payments have been made on the notes except those credited.
    The petition also contains the following averment:
    “ Plaintiff says that eighteen months since the appointment of said C. II. Chamberlain as such administrator as aforesaid, and the further time of one year allowed him by the said probate court of Morrow county to settle up said estate, have elapsed, and no further time has been allowed him as such administrator, for tbe settlement of said estate ; that said estaféis solvent, and that said adminstrator, C. H. Chamberlain, has paid a portion of the debts thereof in full, and has not made any payment on the claims of plaintiff, above set forth.
    Prayer against defendant as such administrator for balance due on notes.
    Defendant demurred to petition, which was overruled and defendant excepted.
    The defendent thereupon answered as follows:
    “ Defense No. 1. And now comes the defendant, and for answer to the petition of plaintiff, denies that the claims and notes in said petition mentioned, were ever legally and properly presented to and allowed by any executor or administrator of the said Benjamin Truex,- deceased, as valid claims against said estate.
    “ Defense No. 2. And defendant, for a further and second defense to said petition, says that the said plaintiff ought not to have his said action thereof against him as such administrator de bonis non, of said estate, because he says that the allowance by the said Joseph Sutherland, as administrator de bonis non of said estate, of said notes as valid claims against said estate, was procured by the fraudulent collusion of the said Smith Thomas and Joseph Sutherland both the said Smith Thomas and the said Joseph Sutherland well knowing that the same were not valid claims against said estate.
    “Defense No. 3. And said defendant, asa further and third defense to said petition, says that said plaintiff ought not to have or maintain his said action thereof against him as such administrator de bonis non, because he says that said promissory notes and claims in said petition mentioned have been fully paid.
    “Defense No. 4. And defendant, for a further answer and fourth defense, says that said plaintiff ought not to have or maintain his said- action thereof against him, because he says that more than fifteen years have elapsed since the maturity of the said promissory notes and claims in said petition mentioned, and prior to the commencement of this action.
    
      “ Defense No. 5. And tlie said defendant, for a further answer and fifth defense, says that the said plaintiff ought not to have or maintain his said action against him as such administrator de bonis non, because he says the said Smith Thomas, as such executor, on or about the fifth day of July, a. d. 1871, presented said promissory notes to this defendant as such administrator do bonis non for allowance as valid claims against said estate, and that he disputed the same and refused so to do, and rejected said claims, and that more than six months has elapsed'since refusal and rejection and before the commencement of this action, and this defendant further says that said claims have never been referred in conformity to the provisions of the statute in such cases made and provided.”
    The sixth defense alleged nothing more in substance than the successive appointments of Thomas, Sutherland and Chamberlain as personal representatives of Truex at the dates named, and that each of them within three months after his appointment gave dpe notice thereof as required by law.
    Demurrers to the 4th, 5th and 6th defenses were sustained by the court, and defendant excepted.
    Issues were joined on defenses 2 and 3 by reply.
    Verdict and judgment were rendered in the court of common pleas for the plaintiff. The judgment of the common pleas on error, was reversed by the district court, and this proceeding is prosecuted to reverse the judgment of reversal.
    
      A. K. & J. G. Dunn, and F. K. Dunn, for plaintiff in error:
    1. An action may be brought on any claim after the expiration of eighteen months. Moore v. O'Brannin, 14 Ohio St. 177; Conger v. Atwood, 28 Ohio St. 13; De Valengin v. Duffy, 14 Peters, 282.
    2. As to the limitation of fifteen years, see Nieemcewicz v. Bartlett, 13 Ohio, 271.
    3. The administrator de bonis non had no right to disregard the acts of his predecessors and reject the claim. Bigelow v. Bigelow, 4 Ohio, 138; Mattoon v. Clapp's Heirs, 8 Ohio, 248; Harter v. Taggart, 14 Ohio St. 122, 126; Moore v. O'Bran
      
      nin, 14 Ohio St. 177, 181; Stark v. Keeran, 5 Ala. 590. The short limitation of six months within which rejected claims must be sued is highly penal in its nature, and must be strictly construed. It is not a favored right but is purely statutory, and a party seeking to avail himself of this defense must bring himself strictly within the terms of the statute. Unless the case falls clearly within the letter and spirit of the statute, the limitation will not apply. Keenan v. Saxtons Adm'r, 13 Ohio, 41; Harter v. Taggart, 14 Ohio St. 122; Kyle’s Adm'r v. Kyle, 15 Ohio St. 15 ; Stambaugh v. Smith, 23 Ohio St. 584; Reynolds v. Collins, 3 Hill, 36, 38 ; Elliott v. Cronk, 13 Wend. 35, 39; Kidd v. Chapman, 2 Barb. Ch. 414, 422. If these notes had been sued and a judgment rendered on them against the administrator, it -could scarcely be contended that the administrator de bonis non could still reject them. He is in privity with the administrator. Hirst v. Smith, 7 T. R. 183, cited supra. But the allowance of the administrator is “ equivalent to a judgment.” Gilbert’s Adm'r v. Little, 2 Ohio St. 156, 160. It ascertains the amount due, takes away the creditor’s right to sue (S. & C. 584, § 96), and authorizes a suit on the bond as effectually as a judgment. S. & C. 601, § 177; State v. Cutting, 2 Ohio St. 1; Greer v. State, Id. 574-578; Taylor v. Thorn, 29 Ohio St. 569.
    Upon a proper construction of the statute S. & C. 585, 586, 587, 614, §§101, 102,103, 108, 109 110, and 248, which provides that an administrator can only be sued within four years, and an administrator de bonis non iu two years, it is not applicable to the case of a claim which has been allowed. It was intended to fix a limit within which claimants must present their demands against the estate and have their right to be considered “ creditors of the deceased,” passed upon by the administrator or be barred from doing so. Who are and who are not “ creditors of the deceased,” must be determined within that period of four years; but one who has been ascertained by judgment or allowance to be a creditor does not lose his right to enforce his claim against the administrator by failing to sue him for four years. The allowance of the administrator, as already shown above, places the creditor on the same footing as a judgment. Taylor v. Thorn, 29 Ohio St. 559, and. eases cited supra. It puts it out of his power to maintain a suit against the administrator ; for, on an allowed claim by the same statute which makes the limitation, the creditor is prohibited from bringing an action “ until after the expiration of eighteen months from the date of the administration bond, or the further time allowed, by the court for the collection of the assets of the estate.” S. & C. 584, § 96. And this time for the collection of the assets may extend to five years (S. & C., 577, §§ 59-62,) during which time the creditor cannot sue. Thus, under the construction claimed by the defendant in error, the creditor is prohibited by one section of the statute from bringing his action for five years, and under another section of the same statute, he must loose his claim if he does not bring his action in four years. Fisher v. Marsman, 11 Ohio St. 42, 45.
    But whether the claims were allowed b3r Thomas or not, the. limitation on which the instruction is founded would not begin to run while Thomas continued to be Truex’s executor. During that time he was the executor of both estates, representing both the maker and payee of the notes, Semmes v. Magruder, 10 Md. 242. Part payment by an administrator will take a claim out of the operation of the statute of limitations as against the administrator de Toonis non, and it makes no difference that the payment was made to the administrator himself, by his retaining a sum in part payment of his own claim. Semmes v. Magruder, supra. The same case also decides that “ so long as the creditor is administrator, the statute can have no effect upon the demand.” To the same effect are State, use of Stevenson v. Reigart, 4 Gill, 1; Brown v. Stewart, 4 Md. Ch. Dec. 368; Spencer v. Spencer, Id. 456.
    . Olds <& Dickey for defendants, in error :
    This case, when stripped of all extraneous matter, is properly disposed of by the demurrer to the petition. The action was brought against the estate of the deceased debtor. The petition alleges-that the notes on which the action is founded, were duly allowed as a valid claim against said estate by each and all of said executors, respectively. By this allowance, the claims were liquidated and the amounts of the debts fixed by the parties.
    If the statements of the petition are true it became the duty of the executors to pay this claim within eighteen months. Rev. Stats. § 6108 ; S. & C. 584 § 96.
    By section 6210, Rev. Stats.; S. & O. 601, § 117, a claim duly allowed is .equivalent to a judgment thereon, and that when a judgment has been recovered the party is no further along in the collection of his debt than when he commenced. He must bring his action on the bond. Greer v. Greer, 2 Ohio St. 574: State v. Cutting, 2 Ohio St. 1; Taylor v. Thorn, 29 Ohio St. 569.
    
      Andrews de Allison, also for defendants in error:
    The claim was barred by the statute of limitations. Rev. Stat. §§ 4980 ; 6047. An action once barred cannot be revived by. any action of an executor or administrator. S. & C. 587, §§ 108, 102, 103 ; Angel on Limitations, 288, § 267.
   McIlvaine, J.

The judgment of the district court is sought to be maintained on the ground that the court of common pleas erred in overruling the demurrer to the petition.

The only point made in argument by defendant in error on this demurrer, is that the petition alleges that the claim sued on was duly allowed by the successive representatives of the estate of Truex as a valid claim against that estate ; and therefore, it is claimed that no cause of action against the defendant wras stated.

In support of this claim, defendant relies on Greer v. Greer, 2 Ohio St. 575, and Taylor v. Thorn, 29 Ohio St. 569. True, there are some dictain those cases that would support the claim, especially in the latter case, where it is said that “ the right to maintain an action on claims against an estate presented to and allowed by the administrator is prohibited by law.” The point decided by the court was, that the statute of limitations does not run in favor of an estate against a claim duly allowed by the administrator, so that the question now under consideration was not necessarily involved in the decision of that case. The case of Greer v. Greer, was on the bond of an administrator,, and not against the estate, so that nothing in that case or in the opinion, concludes the case now before us.

If the defendant was exempt from being- sued on the claim stated in the petition the exemption must be found in some statutory provision ; and the only statute relied on is as follows:

Revised Stat. § 6108 (S. & C. 584, § 96): “ No executor or administrator shall be liable to the suit of a creditor of the deceased, until after the expiration of eighteen months from the date of his administration bond, or the further time allowed by the court for the collection of the assets of the estate; unless it be for the recovery of a demand that would not be effected by the insolvency of tlie estate ; or unless it be brought after the estate lias been represented insolvent, for the purpose of ascertaining a claim that is contested ; or unless the claim has been exhibited to the executor or the administrator, and has been disputed or rejected by him.”

This section, instead of supporting the claim made by demurrant, is, by implication, strongly against it. The petition avers that eighteen months from, the date of the administration bond and the further time allowed by the court for the collection of the assets of the estate had expired, and that the estate was solvent; thus showing that the plaintiff was entitled to payment, and that the period of defendant’s exemption from suit had elapsed.

The claim that the only remedy of a creditor .for the payment of an allowed debt is under section 6210 of Revised Statutes is fallacious. That section is as follows:

“After a creditor is entitled by law to the payment of his debt, from the executors or administrators, and the amount of the claim has either been admitted to be just or allowed by them, or has been ascertained by judgment or award against them, or Uy an order of distribution, the bond given by them for the discharge of their trust, may be put in suit by such creditor, if tlie executors or administrators shall neglect, upon demand made by such creditor, to pay such claims.”

The remedy on the bond is cumulative, not exclusive. Suppose the makers of the bond be insolvent, and the estate solvent, can there be any doubt that the creditor would be entitled to judgment, and execution against the assets of the estate ? Surely not. Section 6107 provides that all executions against executors or administrators for debts due from the deceased shall, except in cases otherwise provided for, run against the goods and estate of the deceased in their hands.

The demurrer to the petition was properly overruled.

The issues of fact made by and upon defenses one, two and three, were found by the jury in favor of plaintiff, and 'as to the matters submitted to the jury, the only error assigned, that need be mentioned, is, that the court ruled out the following testimony offered by defendant in support of defense number two: namely, that Sutherland before he allowed these claims against the estate, as administrator da bonis non, had been verbally notified by the widow of Truex not to allow them. No other testimony was offered tending to prove the collusion and fraud charged in the second defense, and taken alone, we think the evidence so rejected did not tend to prove the defense alleged. If the rejected testimony had been admitted and no other evidence in support of this defense had been offered, we think the court should have directed the jury, on this issue, to find for the plaintiff. Hence, its rejection was not prejudicial to the defendant.

Did the court of common pleas err in sustaining the demurrer to the 4th defense ? This defense alleges that more than fifteen years had elapsed between the maturity of the notes and the commencement of the action.

It was alleged in the petition that Sutherland as administrator da bonis non had allowed this claim as a valid claim against the estate on the 4th day of January, 1868, less than fifteen years from the maturity of the notes. This fact was not denied by the answer. By this allowance the statute ceased to run against the claim. Taylor v. Thorn, 29 Ohio St. 569. By failing to deny the fact of allowance as pleaded in the petition, it must be regarded, under the statute, as admitted, and being admitted, it was wholly immaterial that fifteen years had elapsed from the maturity of the note to the commencement of the action thereon. Upon such a record, we think, the question on the demurrer was the same as if the answer had admitted the allowance of the claim by Sutherland on the day named in the petition. Hence, there was no error in sustaining this demurrer.

The demurrer to the fifth defense raises this question, whether or not the statute requiring a creditor of an estate to bring an action on his claim within six months after its rejection by the administrator, applies to a case, where the claim has been duly allowed by an administrator, and was rejected by the successor of the administrator allowing it.

The allowance of a claim when exhibited or presented to an administrator for allowance is not conclusive against the estate as to its validity. It may afterwards be disputed and contested by the administrator. But we think, the statute limiting the right of action to six months after the claim is rejected does not apply to a case where the claim is allowed upon presentation, and afterwards disputed; but only to cases where it is disputed or rejected upon presentation for allowance. The statute is (Sec. 6097, Rev. Stats.): “ 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 the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt ... be then due . . . commence suit for the recovery thereof or be forever barred.” It would seem clear, that such suit must be commenced within six months after the rejection, although an administrator cle bonis non may, during that period, have succeeded. If the estate be entitled to the advantage resulting from rejection of a claim in such case, why should it not be bound by an “allowance” made by a former administrator?

We think it is so bound, and therefore the rejection of the claim in this case by the defendant had no other effect- upon it, than would a subsequent notice by Sutherland, after he allowed the claim, of his intention to contest it.

An administrator cle bonis non takes the estate from his predecessor in the same condition he left it. All acts lawfully done in the discharge of his trust by the former administrator are binding on his successor. The law recognizes a privity of estate between them, and it follows, that the case, in this respect, stands exactly as if the same administrator who allowed the claim had afterwards repudiated it.

There was no error in sustaining the demurrer to this defense.

The only question which remains to be considered, as arising upon the demurrer to the sixth defense, as it appears to us, is that the plaintiffs claim was not allowed by Thomas as executor of Truex, within the period of four years after his giving bond as such executor.

During the whole of this period Thomas was executor of the creditor as well as of the debtor estate. In such double relation he could not deal or contract with himself, but whenever funds belonging to the debtor estate and applicable to the payment of the creditor estate came into his hands, he was bound to treat the same as assets of the creditor estate, to the extent of the indebtedness. If mistakes occur in making transfer of such accounts, they may be corrected on settlement of his final accounts with the probate court. No formal allowance ” of the claim was necessary; but if it were, the credits indorsed upon the notes during the double relation, sufficiently show that such allowance was made.

We find no error in the record of the court of common pleas, for which the judgment of that court should have been reversed.

Judgment of district court reversed, and that of the common fleas affirmed.  