
    Thompson, Appellee, v. Stein et al., Appellants. Stein, Appellant, v. Thompson et al., Appellees.
    (Nos. C-800327 and C-800370
    Decided July 1, 1981.)
    
      Mr. Albert Wettstein, for appellee Thompson.
    
      Mr. H. Fred Hoefle, for appellant Stein.
    
      Mr. Charles F. Doan, for appellee Citizen’s State Bank.
   Per Curiam.

These consolidated causes came on to be heard upon the appeals from the Court of Common Pleas of Hamilton County.

The instant appeals derive from the judgments entered in the court of common pleas following the trial of two causes-of action growing out of the death of June Hill Thompson. The decedent died intestate on June 5,1974, as a result of injuries sustained in an automobile accident. An application to administer her estate was thereafter filed by appellant, Carolyn Stein, who was appointed ad-ministratrix by order of the probate court over the objection of appellee Charles Thompson. Thompson had married the decedent in a civil ceremony performed in Detroit, Michigan, on September 3, 1958, and claimed to be her lawful husband.

On December 3, 1976, the probate court issued an order declaring appellant and her natural father, Lawrence . Lawson, to be the only lawful heirs of June Hill Thompson. Lawson was determined to be an heir upon the court’s finding that he, and not Charles Thompson, had lawfully been married to June Thompson at the time of her death.

The two causes of action consolidated for trial in the probate court raised questions concerning the extent of the decedent’s estate and the entitlement to certain assets that were alleged to be held by either appellant or Charles Thompson. In the first action, appellant, in her capacity as administratrix, sought the return of $1,900 in currency and various items of personal property from Charles Thompson, alleging that such items were lawfully a pa^t of the estate of June Hill Thompson. Charles Thompson, in turn, filed a claim against appellant seeking the return of several pieces of jewelry that had allegedly been obtained from him by fraud. Appellee Citizen’s State Bank was joined as a party because it had been the custodian of a safe deposit box from which Charles Thompson had removed some of the items of property sought by appellant in her cause of action.

After a motion to dismiss the cause of action advanced by Charles Thompson was denied, both causes were tried without the intervention of a jury before a judge of the probate court. On the basis of his evaluation of the evidence presented at trial, the judge concluded that the appellant in her capacity as administratrix was not entitled to any of the items sought in her cause of action, but that Charles Thompson was entitled to the pieces of jewelry sought in his cause of action because, the court found, they had been obtained by fraud.

In the first of four assignments of error, appellant asserts that the court below erred by refusing to dismiss Thompson’s cause of action against her. Pursuit of the cause of action was barred, she reasons, under the statute of limitations requiring that all claims against an estate be presented within three months of the administrator’s appointment. See R.C. 2117.06.

In our judgment, however, the court below was entitled to find that Thompson’s claim was not governed by the special time limitation appearing in the probate chapter of the Revised Code. Giving the complaint a fair and reasonable construction, we are convinced that it stated a cause of action against the appellant individually by alleging that she had fraudulently concealed certain material facts from Thompson. Viewed in this light, the claim was not against the estate of June Hill Thompson and was thus subject to the general statute of limitations governing actions sounding in fraud.

R.C. 2305.09(C) states that a cause of action seeking “relief on the ground of fraud” must be brought within four years of the accrual of the cause. If the theory of recovery is fraud, the cause of action is deemed to accrue at the time the fraudulent act is discovered. Id

In the instant cause, the allegation of fraud centered on the failure to disclose the fact that the decedent was lawfully married to another individual while maintaining her relationship with Charles Thompson. Thompson alleged in his complaint that he would not have given the jewelry held by the appellant to the decedent if he had been aware of the decedent’s prior marital relationship.

To invoke the statute of limitations successfully in the court below, appellant was thus obliged to establish that Thompson commenced his cause of action more than four years after he discovered the decedent’s pre-existing marriage. Our examination of the record, however, yields a construction of the relevant facts from which the probate judge was entitled to find that such discovery did not occur until the issue of the decedent’s lawful heirs had been raised and determined in judicial proceedings, and that the proceedings determining heirship took place within four years of the filing of Thompson’s complaint. For this reason, we conclude that the appellant’s first assignment of error is without merit.

In her second and third assignments, the appellant challenges the judgments entered in favor of Thompson in both causes of action litigated at trial on the ground that they were against the manifest weight of evidence and contrary to law. At the heart of her argument is the contention that there was a failure to demonstrate by clear and convincing evidence that the property sought in the lawsuits was obtained by fraud.

A reading of the trial transcript reveals that all the property in question was given to the decedent at times when Charles Thompson considered her to be his lawful wife. Although Thompson admitted upon cross-examination that the property was given out of love, there is other competent evidence upon which the trial judge was entitled to find that such “gifts,” as appellant chooses to characterize them, would not have been made if Thompson had known that the decedent was married to another man. In short, it is our view that the evidence was sufficient to sustain the claims of fraud and to warrant the court’s findings in favor of Thompson in both causes of action. The second and third assignments of error are accordingly without merit.

In her remaining assignment of error, appellant contends that the judgment of the trial court in favor of appellee Citizen’s State Bank was against the manifest weight of the evidence and contrary to law. She argues that the bank should have been held liable in conversion because it permitted the contents of a safe deposit box held in the decedent’s name to be released to Charles Thompson after the decedent’s death was made known to it.

This assignment of error is without merit for two reasons. First, the record discloses that the bank fully complied with its statutory duties under R.C. 5731.39(F) when it released the contents of the box to Thompson. In addition, even if the bank had violated a duty recognized in the law of this state, appellant would not have been entitled to a judgment against it in light of the trial court’s finding that the contents of the box properly belonged to Charles Thompson.

We affirm the judgments of the Court of Common Pleas of Hamilton County.

Judgments affirmed.

Shannon, P.J., Palmer and Klusmeier, JJ., concur. 
      
       There is no evidence in the record demonstrating that the existence of the decedent’s marriage to Lawrence Lawson was brought to light at an earlier time. According to a “memorandum of facts and law” entered upon the record by the probate judge, appellant did not seek appointment as ad-ministratrix of the decedent’s estate until May 17, 1975, and at that time she stated that Charles Thompson was the decedent’s husband. Absent any evidence to the contrary, we must conclude that the issue of the validity of the marriage between the decedent and Charles Thompson was first raised at a time after May 17, 1975, that was clearly within four years of the filing of Thompson’s cause of action.
     