
    Fair v. Fair, Exr.
    
      (Decided May 22, 1933.)
    
      'Mr. William N. Crow, for plaintiff in error.
    
      Messrs. Carver <& Badger, for defendant in error.
   Lemert, J.

George Washington Keefer and Henry Napoleon Keefer were bachelor brothers. George Washington Keefer, who was ill for some years, was taken to the residence of Samuel B. Fair, where he was cared for until he died. Henry Napoleon Keefer lived by himself, and he, too, finally was taken to the residence of Samuel B. Fair, where he died, leaving a will in which John D. Fair was named executor.

The original petition in this case was filed by Della Fair, and to it a motion was filed seeking to strike out some evidentiary matter and to set out when the claim was verified. The motion was sustained, and an amended petition was filed which, among other things, set forth that Della Fair’s claim was verified on the 5th day of May, 1931, filed with the executor the same day, and rejected on the 4th day of February, 1932. A copy of the claim is set forth in plaintiff’s brief. A demurrer to the amended petition was sustained, and plaintiff asked leave to amend. The second amended petition was filed. Defendant filed a motion to the same, asking to have the petition made more definite and certain in the following respects: First, as to whether the defendant, John D. Fair, ever notified the plaintiff or her attorney that the claim sued upon was rejected by him; second, if such notice was given to plaintiff or her attorney, then state and set forth the date when snch notice was given. This motion was sustained, and the plaintiff filed a third amended petition; to which the defendant filed a motion asking to have the third amended petition stricken from the files and judgment entered for the defendant, for the reason that plaintiff had willfully failed to comply with the former order of the court; and, if that part should be overruled, then to strike out three allegations in the third amended petition. At the hearing plaintiff was granted leave to amend by inserting the words, “duly verified,” and the court below ordered one allegation stricken and in lieu thereof the insertion of a copy of the writing shown by the interlineation. Plaintiff, not desiring to file a fourth amended petition, asked the court below for leave to take from the third amended petition the second page thereof, and to insert in lieu thereof a newly written second page. To this third amended petition, as finally amended by interlineation, defendant filed a demurrer, which was sustained, and the plaintiff not desiring to plead further, judgment was entered thereon. Plaintiff prosecutes error to this court.

The principal question presented by counsel in both brief and oral argument in this case has to do with the presentation and rejection of the claim presented to the executor.

We observe from the pleadings before us that this action was brought for services rendered the testator during his lifetime, for payment of which he made provision in his will.

Under item 1 of the will we note the following language : “I direct that all my just debts and my funeral expenses be paid, including in my debts a reasonable compensation to be paid to Della Pair for caring for and nursing me ever since I came to the home of Samuel B. Pair in Millersburg, Ohio.” Prom the above language of the will of Henry N. Keefer, deceased, we conclude that Della Fair was a legatee under said will, and, if she was, then was it necessary for Della Fair as a general legatee to present her claim to the executor for his allowance?

From Adams & Hosford Probate Practice, page 733, Section 3, we quote the following: “What need not be presented. As the law does not require the doing of an idle thing it may be said as a general rule, that no claim is required to be presented, unless it is such a claim that the administrator or executor can legally refuse to pay. If the character of claim is such that no action of the administrator or executor can defeat the validity of the claim, then it would be useless to present it, so far as affecting the legality of the claim itself is concerned. ’ ’

Now in the instant case the executor could not say or do anything that would defeat the right of Della Fair to recover compensation for services for which the will provides that payment shall be made. In our opinion it then follows that the executor would have no right, legal or moral, to claim that because the plaintiff did not properly present her claim or bring an action thereon within a certain time such would defeat her right of recovery.

We note that there was a rejection of the claim, a copy of which was attached to the third amended petition, and the question arises as to the right of the executor to reject such claim. If it be true that there was a rejection of the claim, then under the new Code it was not done within the statutory period, and therefore the bringing of the action would not be governed by the statute of limitation.

In 18 Ohio Jurisprudence, at page 365, we note the following: “The fact that an executor has rejected a claim on which suit had been brought does not estop him from submitting it to arbitration, as part of the claim may have been good and the executor cannot be compelled to separate the good from the bad, but must be expected to reject it in toto.”

In Bray v. Darby, 82 Ohio St., 47, 91 N. E., 861, it is held that 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 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.

We note on Exhibit A, attached to the third amended petition, the following: “Your claim, showing balance due, also the fact that the petition shows on its face that the executor paid $250 on this claim for services before rejecting same.”

In the third amended petition plaintiff further says that on the 5th day of May, 1932, she presented to the defendant, John D. Fair, as executor of the estate of Henry N. Keefer, deceased, her claim for compensation for the aforesaid services, as provided in item 1 of testator’s will; that on the 4th day of February, 1932, said executor through his attorney presented an offer in writing agreeing to pay a small amount of said services and requesting that the plaintiff accept the same, as settlement in full for her claim, as provided for in said will.

We are of the opinion that the court below erred in sustaining the motion to the third amended petition, not in particular to the part stricken out, which is designated above by italics, and could probably be construed as an offer to compromise, but that in lieu thereof he ordered the plaintiff to attach a copy of tha purported rejection of claim to the petition, and, further, on the second motion ordered the plaintiff to insert that “Exhibit A be made a part thereof.” The suit herein was not based upon Exhibit A, but on a claim for services authorized under the will, and by no rule of construction of Sections 11333 and 11334, General Code, could same have been a part of the pleading. State, for Use of Clark County, v. Collins, 82 Ohio St., 240, 92 N. E., 439.

This is a suit against an executor. It is the duty of the executor to carry out the intentions of the testator as set forth in his will. Under it the executor is qualified to act, and is precluded from declaring that because of the neglect of some agent or attorney, or on the part of the plaintiff in failing to comply with some technical line of procedure, plaintiff would have no right to recover for services rendered, provision for payment of which was made by the will of the testator.

But inasmuch as the testator failed to designate what the amount should be, and inasmuch as the executor and the beneficiary apparently could not agree as to what that amount should be, we are of the opinion that the third amended petition requires that the issue be submitted to a jury under proper instructions by the court.

We see nothing in the third amended petition that would be prejudicial to the defendant, and especially in the excluded paragraph to which exceptions were taken. We are therefore of the opinion that error has intervened in this case and that the court below erred in sustaining a demurrer to the third amended petition. The judgment of the court below will be and the same is hereby reversed, and the cause is remanded to that court for further proceedings according to law.

Judgment reversed and cause remanded.

Sherick, P. J., and Montgomery, J., concur.  