
    The State, ex rel. Squire, Supt. of Banks, Appellant, v. The Cleveland Trust Co., Admr., Appellee.
    
      (Decided August 31, 1937.)
    
      Mr. Herbert 8. Buffi/ and Mr. Homer H. Marskman, for appellant.
    
      Messrs. Horwitz, Kiefer & Harmel, for appellee.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga county, Ohio.

Albert J. Gilchrist died testate in 1926. His will was probated in the Probate Court of Cuyahoga county, Ohio, on September 22, 1926, and on the same day The Guardian Trust Company, an Ohio corporation with trust powers, was appointed executor.

At the time of his death the decedent was the owner of one hundred shares of The Guardian Trust Company stock. Fifty shares were paid to his wife as a legatee, leaving fifty shares remaining in the estate. These fifty shares remained in the estate continuously at all times material hereto.

In 1929 there was a twenty-five per cent stock dividend on these shares and as a result thereof the estate received twelve and one-half additional shares. Due to the existence of the fractional share a remaining one-half share was purchased from Mrs. Gilchrist, the decedent’s widow and the life tenant in the estate.

At the same time the owners of the stock were given the right to purchase stock and in accordance with this right The Guardian Trust Company as representative of the estate purchased twenty additional shares at three hundred dollars per share, making a total of eighty-three shares. The market price at the time of purchase was between four and five hundred dollars per share, and the obtaining of the shares at three hundred dollars a share at this time was presumably an advantageous purchase by the estate.

The Guardian Trust Company continued to be executor of the estate until May 31, 1934, as hereinafter mentioned but on the 15th day of June, 1933, The Guardian Trust Company, pursuant to the provisions of Section 710-89 et seq., General Code, was taken over by the Superintendent of Banks of Ohio because of its unsound condition, and notice thereof posted and given as provided in Section 710-90, General Code.

The Probate Court did not at any time allow additional time for the collection of assets of the estate.

On July 15, 1933, the Superintendent of Banks ascertained that it was necessary to assess super-added liability upon The Guardian Trust Company stock and made such assessment on August 1, 1933, due and payable September 15, 1933.

Pursuant to the provisions of Section 710-91, General Code, the Superintendent of Banks in his official capacity took possession of the assets of the estate and, no administrator in the meanwhile having been appointed to succeed The. Guardian Trust Company as executor of the estate, continued in the custody thereof from June 15, 1933, until May 31, 1934, at which time The Guardian Trust Company was formally removed as executor of the estate and The Cleveland Trust Company was appointed and qualified as administrator" de boms non with the will annexed, of the estate.

On August 6, 1934, being more than two months after the appointment and qualification of The Cleveland Trust Company as administrator d. b. n. w. w. a., claim was made by S. H. Squire, as Superintendent of Banks of Ohio, in charge of the liquidation of The Guardian Trust Company of Cleveland, Ohio, on The Cleveland Trust Company as such, administrator for the amount of the assessments on the stock of The Guardian Trust Company standing on the books of the company in the name of the decedent and the estate, being a total of eighty-three shares made up as follows: (1) 50 original shares; (2) 12% shares stock dividend; (3) % share purchased from Mrs. Gilchrist, the life tenant; (4) 20 shares purchased as a result of rights. The Cleveland Trust Company, on August 18, 1934, rejected the claim and on August 23, 1934, action was instituted by the State of Ohio on the relation of S. H. Squire as Superintendent of Banks of Ohio in charge of the liquidation of The Guardian Trust Company of Cleveland, Ohio, as plaintiff against The Cleveland Trust Company, administrator d. b. n. w. w. a. of the estate of Albert J. Gilchrist, deceased, as defendant, to recover the amount of the assessment and claim, to wit, the sum of $8300 plus interest from September 15, 1933.

In its answer, supplemental answer and answer to the amended petition, the defendant among other defenses pleaded that the action is barred by the period of limitation provided in Section 10509-144, General Code, by reason of the fact that the action was not brought within the time allowed by law as provided in that statute.

A jury having been waived, the cause was submitted to the trial court upon a stipulation of facts supplemented by some oral testimony. The trial court found for the defendant on all issues raised and, a motion for a new trial having been filed and overruled, judgment was entered in favor of the defendant accordingly. It is from this judgment that the appeal on questions of law is taken.

There are a number of assignments of error but, as in the view we take of the case the consideration of the first assignment of error disposes of the entire case, we have limited our consideration of the case to this assignment of error and have only stated snch facts in connection with the case as relate to this assignment of error.

The assignment referred to is: (1) The Court of Common Pleas erred in holding as a matter of law that the action of the plaintiff was barred by the probate claims statutes and particularly Section 10509-144, General Code.

It will be noted from the statement of facts that Gilchrist died in 1926 and his will was probated and The Guardian Trust Company was appointed and qualified as' executor thereof on September 22, 1926, and continued to act as such executor until the 15th day of June, 1933, when The Guardian Trust Company was taken over for liquidation by the Superintendent of Banks of Ohio; and that the Superintendent of Banks took possession of the assets of the estate in the hands of The Guardian Trust Company as executor thereof, on June 15, 1933, and continued in the custody thereof until May 31, 1934, at which time defendant, The Cleveland Trust Company, was appointed administrator de bonis non with the will annexed and as such administrator took possession thereof and proceeded with the administration of the estate. The period elapsing between the appointment of The Guardian Trust Company as executor and the date The Guardian Trust Company was taken over for liquidation by the Superintendent of Banks was almost seven years. The assessment of stockholders ’ liability by the Superintendent of Banks was ascertained on July 15, 1933, and assessed on August 1,1933, payable September 15, 1933, and occurred during the period the .Superintendent of Banks had the custody of the assets of the estate in conformity with the provisions of Sections 710-89 and 710-91, General Code.

In this situation it is necessary to determine the status of the estate during its custody, under the provisions of those sections, by the Superintendent of Banks, preliminary to determining the applicability of the statute of limitations provided in Section 10509-144, General Code.

In 3 Bogart, Trusts and Trustees, 1685, Section 531, it is stated that trustees, receivers or other officials appointed to wind up the affairs of a corporate trustee have no authority to execute the trust.

Three cases are cited in support of this proposition in which state officers performing duties similar to the duties performed by the Superintendent of Banks under the laws of Ohio, had taken possession of the property and assets of trust companies for the purpose of liquidation, to wit, Sullivan v. Kuolt, 156 Wis., 72, 145 N. W., 210; Young, Commissioner, v. Bankers’ Trust Co.’s, Recr., 250 Ky., 1, 61 S. W. (2d), 904; Mitchell v. Shuford, 200 N. C., 321, 156 S. E., 513.

In all these cases it is held that officers, performing duties similar to the duties performed by the Superintendent of Banks under the laws of Ohio, taking possession of a trust company for the purposes of liquidation, do not succeed to the trusteeship of the various trusts of which the trust company is trustee under appointment by a court, and that the sole duty of the officer with reference to such trust property is to hold and conserve the same until new trustees can be appointed and to render an account thereof, his' duty being similar to that of the administrator or executor of a deceased personal representative or of an administrator of a deceased trustee or assignee for the benefit of the grantor’s creditors.

A trust company, acting under appointment of a Probate Court as executor of the estate of a deceased person, must in the performance of its duties exercise discretionary powers in relation to the corpus of the trust and where by operation of law the custody of the corpus of the trust and the duty of accounting therefor is taken from the company and vested in the Superintendent of Banks, all the powers of the corporation as such, trustee, by reason of its inability to exercise discretionary powers in relation to tbe trust, must necessarily cease: And so, both by force of the provisions of Sections 710-89 and 710-91 of tbe General Code, and by operation of tbe general rules of law applicable thereto, tbe powers of a trust company under appointment by a court to administer trusts under tbe laws of Ohio are immediately suspended and cease upon tbe Superintendent of Banks taking possession of tbe property and assets of a trust company for the purpose of liquidation. Tbe custody of tbe ' trust property immediately devolves upon tbe Superintendent of Banks and after tbe superintendent takes possession and custody tbe trust company can neither allow nor reject claims against tbe trust estate nor sue nor be sued with reference thereto.

Applying these rules of law to tbe facts of tbe case at bar it is obvious that neither Tbe Guardian Trust Company nor tbe Superintendent of Banks was empowered, during tbe period from June 15, 1933, tbe date tbe trust company was taken over by tbe Superintendent of Banks, to May 31, 1934, the date Tbe Cleveland Trust Company was appointed administrator de bonis non with tbe will annexed of tbe estate of Gilchrist, to allow or reject claims against such estate or to sue or be sued in relation to tbe same, and that consequently, from tbe time tbe assessment was made by tbe Superintendent of Banks on July 15,1933, until the appointment of Tbe Cleveland Trust Company as administrator de bonis non, there was no one having authority in law either to allow or reject tbe claim of tbe Superintendent of Banks against tbe Gilchrist estate arising out of such assessment or to be sued on account thereof. For tbe reasons mentioned , tbe Superintendent of Banks, during such period, could not maintain an action thereon.

In tbe opinion in tbe case of Leasure v. Mahoning Township, 8 Watts (Pa.), 551, it is stated that tbe statute of limitations does not, and it was never intended that it should, apply to claims for the recovery of which the party entitled thereto could not'maintain an action. And this statement is quoted with approval in the case of Taylor v. Thorn, Admr., 29 Ohio St., 569, at page 574.

Under this rule, any statute of limitations relating either to the presentment of the claim to the executor or the bringing of suit against the executor on the claim, was tolled and inoperative against the Superintendent of Banks. The assessment against the Gilchrist estate having been made during such period, the statute of limitations relating to the presentment of claims and suit thereon did not become operative until May 31, 1934, upon the appointment of The Cleveland Trust Company as administrator d. b. n. w. w. a.

The question for determination then is whether the action brought on this claim on August 23,' 1934, following presentment of the claim to The Cleveland Trust Company on August 6, 1934, and rejection by it on August 18, 1934, all of which occurred more than sixty days after May 31, 1934, the date of the appointment of the administrator d. b. n. w. w. a., is barred by the statute of limitations applicable to a claim of a creditor whose cause of action accrues. before such estate is administered and after the expiration of nine months following the date of the appointment of an executor of such estate, it being conceded in this case that no further time had been allowed by the court to the original executor for the collection of the assets of the estate.

From a perusal of the statute of limitations relating to the presentment of claims and suits on claims against the estates of decedents, it will be noted that two classes of claims are recognized; the first, claims, whether due or not due, accrued or accruing within nine months following the appointment of an executor or administrator thereof, and any further time that may be allowed by the court for the collection of the assets of the estate; and, second, claims of creditors whose causes of action accrue before such estate is fully administered and after the expiration of nine months following the date of such appointment of such executor or administrator and in such further time allowed by the court for the collection of the assets of the estate. The first class of claims comes within the provisions of Sections 10509-112, 10509-133 and 10509-134, and both the first and second class of claims come within the provisions of Section 10509-144, General Code, which, prior to its repeal in 116 Ohio Laws, 385, read 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 two months after the expiration of nine months following his appointment and any further time allowed by the court for the collection of the assets of the estate, except as otherwise provided by law. A creditor whose cause of action accrues before such estate is fully administered and after the expiration of nine months following the date of the appointment of such executor or administrator and any further time allowed by the court for the collection of the assets of the estate, may begin and prosecute such action within two 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 óf time, until the expiration of two months from the time it accrues.” It will be noted that there is no specific provision relating to the presentment of the second class of claims but there are specific provisions that a creditor having a claim of the second class may begin and prosecute such action within two months after the accruing of such cause and before the estate is fully administered, and that no cause of action against an executor or administrator shall be barred by lapse of time until the expiration of two months from the time it accrues.

It is, however, contended by the appellant that claims of the second class mentioned also come within the provisions of Section 10509-153, General Code, which, prior to its repeal in 116 Ohio Laws, 385, read as follows:

“When an executor or administrator dies, resigns, is removed or his letters are revoked, or his powers have ceased, without fully having administered the goods and estate of the deceased, and a new administrator of the estate is appointed, the time allowed to the creditors for bringing their actions shall be enlarged, as follows: To-so much of the nine months provided for the limitation of the action as expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new administrator as will make nine* months; provided, however, the new administrator shall be liable to the action of creditors for the period of four months after his appointment, although the whole time allowed to the creditors be thereby extended beyond such nine months.”

It will be noted that all' of this section except the proviso at the end thereof is merely a restatement of the general rules of law hereinbefore set forth applicable to cases where the statutes of limitation are tolled during the period the person entitled to the claim could not maintain action by reason of the fact no legal representative existed against whom an action could be brought; and the proviso has the effect of fixing a minimum period,in which such action may be brought when the statutes of limitations again become operative.

It will further be noted that the provisions of this section apply only to the first class of claims above mentioned that have accrued or may accrue within nine months from the appointment of the original executor or administrator and any further time allowed by the court for the collection of the assets of the estate, and have no application whatever to claims of the second class, similar to the claims in the case at bar, which accrue subsequent to the expiration of nine months from the appointment of the administrator and any further time allowed by the court for the collection of the assets of the estate. As the claim in the case at bar is a claim of the second class, the provisions of Section 10509-153, General Code, including the proviso at the end of such section, have no application to it and it is governed solely by the provisions of Section 10509-144, General Code, and this action not having been brought within two months after the appointment of The Cleveland Trust Company as administrator d. b. n. w. w. a., the date the claim accrued as hereinbefore mentioned, is barred by the provisions of Section 10509-144, General Code.

For the reasons mentioned the judgment of ¡the Court of Common Pleas will be affirmed at costs of appellant and the cause remanded for execution. Exceptions are saved to the appellant.

Judgment affirmed.

Klinger, J., concurs.

Crow, J., dissenting.

I disagree with the majority on the sole ground that the applicable limitation lies within Section 10509-153, General Code, and that plaintiff was clearly entitled to recover at least as to the fifty shares.

The last clause of that section, referred to in the majority opinion as the proviso, falls within the exception “as is otherwise provided by law” in Section 10509-144, General Code, when regard is had to the words “the time allowed to the creditors for bringing their actions shall be enlarged,” in Section 10509-153, General Code. (Italics mine.)

We mention, however, that the latter section and Section 10509-144, General Code, were repealed and Sections 10509-133, and 10509-138, General Code, were amended hy the act in 116 Ohio Laws, at pages 385 and following, without, of course, affecting the instant case, but as indicative of the presumed legislative contemplation of the meaning of all of the original sections at the time the act above mentioned was passed.

Guernsey, P.<J:, Crow and Klinger, JJ., of the Third Appellate District, sitting by designation in the Eighth Appellate District.  