
    Crawford, Administrator, v. Zeigler et al.
    
      After expiration of eight months — Allowed by Section 6187, Revised Statutes — For filing exceptions — hidgment of probate court — In settlement of final account — Becomes conclusive and absolute.
    
    After the expiration of the eight months allowed by Section 6187, Revised Statutes, for filing exceptions when the account is settled in the absence of a'person interested and without actual notice to him, the judgment of a probate court settling the final account of an executor or an administrator becomes absolute and conclusive and can not be attacked except for fraud of the prevailing party.
    (No. 11942
    Decided May 31, 1911.)
    Error to the Circuit Court of Lawrence county.
    ■ On the second day of August, 1900, William H. Crawford was appointed by the probate court of Lawrence county, Ohio, administrator, with the will annexed, of the estate of Elizabeth Mueller, deceased, gave bond and entered upon his duties as such. In the process of the settlement of the estate he filed five several accounts, the last or final account being filed on November 15, 1904. In these separate accounts there was an additional allowance made to the administrator for extra services performed in the administration of the estate, and in several of the accounts there was an allowance made to him for counsel fees claimed by him to have been expended in the interest of said estate. On the 30th day of March, 1906, Wolfang H, W. Zeigler and others, beneficiaries under the will of Elizabeth Mueller, deceased, filed their petition in the common pleas court of Lawrence county, Ohio, against William H. Crawford, William H. Crawford, as administrator with the will annexed of the estate of Elizabeth Mueller, deceased, and certain other beneficiaries under the will of Elizabeth Mueller, deceased, who refused to join as plaintiffs. This petition contained five separate causes of action, each cause of action being founded upon the separate accounts respectively filed by said administrator asking that said accounts should -be opened up and the amounts allowed to said administrator for extra compensation and allowed him for ‘counsel fees be not allowed and he be ordered to account for the same and distribute the same to the legatees and next of kin of said decedent; averring that the allowance of the same had been procured by false and fraudulent representations, concealments and acts of said administrator; averring that said administrator gave no actual notice of the filing of either of said accounts, or the date of the hearing or allowance thereof, or either of them; that said plaintiffs had no knowledge that said fifth and final account had been allowed, confirmed or settled, or that distribution of said estate had been ordered by the probate court, and that' they had no such knowledge until eight months after the same was allowed; that plaintiffs did not have knowledge or notice of, or discover any of said acts or- frauds herein complained'of until mófe-than eight months after December 26,' 1904,'and-that neither, or any of said fraudulent representations, concealments and acts were presented to or passed upon- at such hearing, allowance, confirmation or settlement of said fifth and final account'. Said petition also averred that a large majority of these beneficiaries were, and are, residents of Germany and were represented in the United States by the Imperial German Consul located at Cincinnati, Ohio, and by attorneys appointed by said consul who resided at Cincinnati, Ohio; that said Crawford knew the residence and addresses of said plaintiffs and of their respective counsel and representatives.
    A demurrer to this petition was overruled. William H. Crawford, personally, and as administrator, filed his answer admitting his appointment as administrator with the will annexed of the estate of Elizabeth Mueller, deceased; that the defendants were represented by the Imperial German Consul located at Cincinnati, O., and by attorneys appointed by said consul, and that some of the plaintiffs and defendants were non-residents of Ohio; admitting the filing of each of said accounts and the allowance to him as a credit of the several items complained of in said petition and denying that he was guilty of any fraud or concealment, false representation or bad faith in any particular. Averring that plaintiffs had actual knowledge of the filing and settlement in the probate court of Lawrence county, Ohio, of each and all of said accounts and made no objections thereto, either at the time or within eight months thereafter, and that no exceptions were ever filed by said plaintiffs to any of said accounts, or either of them, and averring that the judgment of the probate court was a final judgment, binding and conclusive upon said plaintiffs.
    To this answer the plajntiff filed a denial as to the knowledge and notice of the filing in the probate court of the various accounts mentioned in the petition within eight months after the same were filed and settled; denying they had opportunity to file any objections or exceptions thereto within eight months thereafter and that the fraud was not discovered by them until after the expiration of eight months.
    Upon the issue so joined the common pleas court found for the defendant, dismissing plaintiff’s petition with costs. An appeal was taken to the circuit court of Lawrence county and that court found generally on the issues joined for the defendant except as to the allowance to said defendant in his third account of the sum of one thousand dollars for extra services, but did allow him one hundred dollars for such services, and ordered and directed that he account for the other nine hundred dollars, and error is prosecuted to this court to reverse that judgment of the circuit court. The plaintiffs below file a cross-petition in errof also seeking to reverse the judgment- of the circuit court. The circuit court upon request of all parties to the suit made a separate finding of facts, but these findings are of such length that it is not practical or necessary to copy them in full here. It is sufficient to say that these findings favor the contention of the plaintiff in error as to each cause of action, except as to the one item in the third account of one thousand dollars additional allowance for extraordinary services, which amount it finds to be excessive and reduces the same to one hundred dollars. The court also specifically finds that the items of charges in the first, second, fourth and fifth accounts were not excessive, and that the administrator was not guilty of any of- the fraud set out in the first, second, fourth and fifth causes of action. The court also finds that Crawford’s correspondence concerning said estate was full, direct, honest, fair and responsive to all inquiries on behalf of the heirs of said estate, and free from any deceit or concealment, and said correspondence was not false or fraudulent. In reference to the item'of one thousand dollar's allowed for extraor-dinary services the court finds as follows: “And we further find from the evidence adduced upon this trial as to the issue joined as to the one thousand dollars extra compensation or allowance to said Crawford, as such administrator, that said Crawford did perform extra services, which we find were of the value of one hundred dollars, and this court finds that the allowance of one thousand dollars, as such extra compensation to said Crawford, to be grossly excessive, fraudulent and out of proportion to the extra services we find said Crawford rendered as such administrator, to the amount of nine hundred dollars, and that said settlement of said third account as to said administrator’s extra allowance should be opened up and' the judgment of approval by said probate court set aside, and that said Crawford should he charged with nine hundred dollars in addition to the balance found in his hands as shown by said third account, and we find no other excessive charge or charges and no fraud or concealment. as is set out in-said third cause of action, or otherwise as to said third account.” “Eleven. The: court also further finds that on February 12, 1905,1 counsel for said heirs of said Elizabeth Mueller de-: ceased came from Cincinnati to Ironton, Ohio, and saw and examined all of said accounts at the probate office in Lawrence county, Ohio, and had actual notice of, and knew of the charges therein contained, which are now complained of, and that said plaintiffs and neither of them filed exceptions within eight months from the allowance and settlement of said fifth and final account.”
    
      Mr. A. R. Johnson, for plaintiff in error.
    
      Mr. Julius L. Anderson and Messrs. Powell & Smiley, for defendants in error.
   Donahue, J.

The first question arising upon the record is the right of the plaintiffs below to maintain this suit. Section 8 of Article IV of the constitution of Ohio, provides that “The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians * * *i” Section 524, Revised Statutes (Section 10492, General Code), provides that probate courts shall have jurisdiction “to direct and control the conduct and settle the accounts of executors and administrators, and order the distribution of estates.” Section 6187, Revised Statutes (Section 10834, General Code), provides that “When an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened, on his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein; excepting that any matter of dispute between two parties, which had been previously heard and determined by the court, shall not be again brought into question by either of the same parties without leave of the court. * * * ”

This fifth and final account of the administrator was filed on the 15th day of November, 1904, and was settled by the probate court on the 26th day of December, 1904. The eleventh finding of the circuit court is to the effect that counsel for defendants in error, who were plaintiffs below, came from Cincinnati to Ironton, Ohio, on the 12th day of February, 1905, and then saw and examined all of said accounts at the probate office in Lawrence county, Ohio, and then had actual notice of, and knew of the allowance of the items therein contained which are now complained of, and that said plaintiffs and neither of them filed exceptions within eight months of the settlement of said fifth and final account.

It is true that the cross-petition in this case seeks to reverse these findings for the reason that they are oot sustained by any evidence, but it clearly appears that this particular finding is fully sustained by the evidence, and that counsel for the plaintiffs below knew within a very short time after the settlement of the final account just what allowances had been made to the administrator for extra compensation and for counsel fees for services in behalf of said estate, and if these allowances seemed excessive to them, or to their clients, ample remedy was provided by Section 6187, conditioned-only that exceptions should be filed within eight months next after the settlement of said account, and upon the hearing of such exceptions all the former accounts could have been • opened up and corrected, but after the expiration of eight months, the judgment of the probate court settling said several accounts, and said final account, could only be attacked for fraud in procuring that judgment. Eichelberger v. Gross, 42 Ohio St., 549.

This court has many times declared that “the probate courts of Ohio are in the fullest sense courts of record; they belong to the class whose records import absolute verity, that are competent to decide their own jurisdiction, and to exercise it to final judgment, without setting forth the fact and evidence on which it is rendered.” Schroyer, Gdn., v. Richmond et al., 16 Ohio St., 455; Railroad Co. v. Village of Belle Centre, 48 Ohio St., 273; Railroad Co. v. O’Harra, 48 Ohio St., 343.

From the findings of the circuit court it appears that these plaintiffs and their counsel were fully advised that this judgment was entered against them, but instead of availing themselves of the method provided by the statute they did absolutely nothing until after the expiration of the eight months limited for the filing of exceptions as provided in Section 6187, Revised Statutes.

It is the policy of the law that all controversies should reach speedy determination. • The peace of society demands that the judgment of every court having jurisdiction of a cause should be a final adjudication of that cause unless it is reversed or vacated in the manner and by the methods provided therefor. The statutes limiting the time in which various actions may be brought, or limiting the time in which an appeal may be taken, or a prosecution in error instituted, may seem to work a hardship in some particular. case, but these laws are wholly beneficial to society at large and undoubtedly prevent the perpetration of many wrongs. When an individual is fully advised of his rights and fully advised that these rights have been im vaded or denied him, it becomes his duty to avail himself of the remedy the law affords within the time provided for such remedy. In this particular case .this estate was in process of settlement for many years. Each particular account was filed at the time the statute required it should be filed. These plaintiffs and their counsel are presumed to know that these accounts would be filed and it was their duty to give such attention to this business in which they had such a vital interest as would im form them in reference to the progress of the settlement of this estate. That they did not do so is their folly, and their misfortune.

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 before the judgment of any court can be opened up and set aside, it must appear, first, that the court had not jurisdiction of the parties, to the action, or of the subject-matter of the suit, or, second, that the judgment was obtained by fraud of the prevailing party. It is urged by counsel for defendant in error that a practice has grown up in that county of allowing exorbitant fees to administrators and their counsel. If that be true, it is a deplorable condition of affairs, but the law' furnishes ample remedy for the correction of these abuses, • and the fact, if it is a fact, that these abuses do exist would not justify this court in disregarding the constitution or the law of the state. If the probate court is not the proper forum in which accounts of executors and administrators should be settled then the remedy lies in a change of the constitution and not in ignoring its provisions, therefore, unless fraud has been shown, the judgment of this probate court settling these several accounts must control.

The circuit court found upon the evidence squarely against' the contention of plaintiffs that the administrator was guilty of fraud, false pretenses and concealment, and we are not disposed to say that these findings are not sustained by evidence.

The circuit court does find that the allowance of one thousand dollars extra compensation was grossly excessive, fraudulent and out of proportion to the extra services the administrator rendered, but it does find that the administrator did render extra services and was entitled to extra compensation. The circuit court differed with the probate court only as to the amount that ought to have been allowed. There is no finding-that the administrator procured the probate court to make such an allowance through fraud or false représentations or collusion, but rather by reason of it being so grossly out of proportion to the services rendered that that fact of itself makes it fraudulent. It will be remembered that this is not an error proceeding or an appeal from the judgment of the probate court settling these accoüñts,' but is an action to open up the judgment, of the - probate court for fraud in procuring the same. The mere fact that the circuit court in this character of case disagrees with the probate court as to the amount that should have been allowed would not justify it in substituting its own judgment for that of the probate court. It must first find and determine that this judgment was procured by fraud before it is authorized to open up and set aside the judgment, and while» the fact that such allowance is grossly out of proportion to the value of the extra services rendered is some evidence of fraud, it does not necessarily show that the judgment was procured by fraud, or by collusion with the court. If the circuit court had found that no services were performed then there would be nothing upon which to predicate the judgment of the probate court making the allowance of one thousand dollars, and it would follow as a logical, as well as a legal, conclusion, that the judgment must have been fraudulently obtainéd, but having found that there' was a basis for the judgment of the probate court, and that court having by the constitution and the laws of this state jurisdiction to inquire .and determine the amount of extra comnensation to which the administrator is entitled, the judgment of the probate court imports, absolute verity and can only be avoided by proof of actual fraud in obtaining the same.

The fact that the circuit court has not found any fraud, but on the contrary found that there was no fraud disposes of anv questions that might be raised on the cross-petition. Having made such finding it should have entered a judgment dismissing plaintiffs’ petition at their costs. For its error in failing to do so the judgment of the circuit court opening up the* third account and reducing the allowance from one thousand dollars to one hundred dollars is reversed, set aside and held for naught, the cross-petition of defendants in error dismissed, and judgment for plaintiff in error on the facts found by the circuit court.

Judgment reversed.

Spear, C. J., Davis, Shauck, Price and Johnson, JJ., concur.  