
    The Redifer Bus Co., Appellee, v. Lumme, Admr., Appellant.
    (No. 36517
    Decided February 8, 1961.)
    
      
      Messrs. Thrasher & Dinsmore and Mr. Lawrence J. Dolan, for appellee.
    
      Messrs. Jamison, Ulrich, Hope, Johnson é Burt, Mr. Robert F. Hesser and Mr. Robert F. Lee, for appellant.
   Weygandt, C. J.

The complete answer to this controversy is found in the simple unambiguous language of Section 2117.07, Revised Code, which reads in part as follows:

“Anyone having a claim against an estate who fails to present his claim to the executor or administrator within the time prescribed by law may file a petition in the Probate Court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing and at least five days before the date of the hearing the claimant shall give written notice thereof to the executor or administrator and to such other parties as the court may designate. The court may authorize such claimant to present his claim to the executor or administrator if, on the hearing, the court finds as follows:
“(A) That the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator ip sufficient time to present his claim within the period prescribed by Section 2117.06 of the Revised Code * * V’

It is the contention of the claimant, The Redifer Bus Company, that, if it did not have actual notice of either the decedent’s death or the administrator’s appointment, it is entitled to an opportunity to present its claim after four months. It did have actual notice of the decedent’s death but not of the administrator’s appointment. Hence, it insists that," -in the absence of immediate actual notice of the administrator’s appointment, it should be allowed to file its claim after four months even if it did have immediate actual notice of the decedent’s death. It relies on the second paragraph of the syllabus in the decision of this court in the case of In re Estate of Marrs, 158 Ohio St., 95. The entire syllabus reads:

“1. One who has a claim against a decedent’s estate and fails to present the same in writing to the executor or administrator within four months of his appointment, as required by Section 10509-112, General Code [now Section 2117.06, Revised Code], may, after the expiration of such time, under Section 10509-134, General Code [now Section 2117.07, Revised Code], petition the Probate Court for leave to do so and where upon hearing the court finds ‘that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the time prescribed by law * * * then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period.’
“2. The disjunctive conjunction, ‘or,’ is used in Section 10509-134, General Code, in its ordinary sense and meaning, and where upon hearing of the petition for authority to file a belated claim the evidence discloses that claimant actually knew of the decedent’s death and his place of residence shortly after the death occurred and that in the exercise of reasonable diligence the claimant could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed by Section 10509-112, General Code, the court is chargeable with no error or abuse of discretion in denying claimant authority to present such claim.”

It is apparent that the plaintiff claimant is seeking to apply the Whirrs case decision to a factual situation broader than that in actual existence in that case. There, as in the instant case, the claimant had actual notice of the decedent’s death. There, as here, the claimant did not have actual notice of the administrator’s appointment. There the claimant was not granted leave to present its claim. Here the lower courts did grant leave to the claimant. Should the instant claimant be granted leave to present its claim solely on the ground that it did not have actual notice of the administrator’s appointment, although the claimant in the Marrs case was denied such leave when it lacked similar knowledge? The unambiguous language of the statute precludes this result. If a claimant has actual notice of the decedent’s death “or” of the administrator’s appointment, he is- not entitled to relief under this statute. The word “or” is disjunctive, and there is nothing in the context to indicate that it was employed by the General Assembly in other than its general acceptation. If the statute is to be amended, this clearly is a matter of legislative policy not within the judicial power.

The judgment of the Court of Appeals must be reversed and final judgment rendered for the defendant administrator.

Judgment reversed.

Zimmerman, Taet and O’Neill, JJ., concur.

Matthias, Bell and Herbert, JJ., dissent.

Zimmerman, J.,

concurring. It seems a bit incongruous that, in support of the respective conclusions reached, both the majority and dissenting opinions herein quote and rely on language used in the case of In re Estate of Marrs, 158 Ohio St., 95, 107 N. E. (2d), 148, the opinion and syllabus in which case I wrote.

In the Marrs case, it was held that denying a claimant authority to present a belated claim to the administrator of a decedent’s estate was neither error nor an abuse of discretion, where the claimant knew of the decedent’s death and the place of his residence very shortly after the death and in the exercise of reasonable diligence could have learned of the appointment of the administrator and had a fair opportunity to present the claim within four months of that appointment as required by Section 10509-112, General Code (Section 2117.06, Revised Code).

Of course, it is well established that the syllabus of a case is to be read and appraised in the light of the facts on which the case is predicated. 14 Ohio Jurisprudence (2d), 683, Section 248.

Section 2117.06, Revised Code, provides in unequivocal terms, with certain exceptions not here involved, that those having claims against a decedent’s estate shall present the same to the executor or administrator thereof in writing within four months of the appointment of such executor or administrator. Then, the immediately following section specifies the conditions under which the filing of a belated claim may be authorized by the Probate Court. One of those conditions is that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within four months of such appointment.

The well recognized rule is that exceptions to the provisions of a master statute, such as Section 2117.06, Revised Code, are to be construed strictly and limited to those situations coming clearly within the scope and intendment of such exceptions. That such strict construction may result in hardship or disappointment is inconsequential. Powell v. Koehler, 52 Ohio St., 103, 39 N. E., 195, 26 L. R. A., 480, 49 Am. St. Rep., 705; and State, ex rel. Menning et al., County Commrs., v. Zangerle, Aud., 95 Ohio St., 1, 115 N. E., 498.

In the instant case, claimant knew of decedent’s death immediately after it occurred; it also knew her identity and that she resided on Oak Street in Chagrin Falls. It is a geographical fact, readily ascertainable, that Chagrin Falls is situated in both Cuyahoga and Geauga Counties. Claimant assumed without investigation that decedent resided in Cuyahoga County, whereas she actually resided in Geauga County, and instructed its attorney to check only the Cuyahoga County records for the appointment of an administrator or executor of the decedent’s estate. Claimant also knew that its claim had to he filed with such a fiduciary within four months of his appointment. The circumstance that the claim adjuster for decedent’s insurer may have lulled claimant into a sense of false security is not sufficient to excuse claimant’s lack of due diligence in protecting its interests.

On the undisputed facts, claimant, knowing of decedent’s death and her address in Chagrin Falls, slept on its rights, and there was no sound or adequate basis for allowing it to present its claim to the administrator out of time. I, therefore, concur in the opinion, syllabus and judgment in the present case. The real trouble here is that the dissenters do not agree with the Marrs case and approve the view expressed in the dissenting opinion in that case. Incidentally, the Marrs case was decided in 1952, and the General Assembly has not seen fit to disapprove of it by the enactment of legislation which would have that effect.

Bell, J.,

dissenting. For the second time in eight years, the same question involving the same statute is before this court. That the question has been presented to us a second time is less properly attributable to judicial insubordination than to the ambiguity of both the statute and this court’s original interpretation thereof.

If this court in writing the syllabus in the case of In re Estate of Marrs, 158 Ohio St., 95, had, after emphasizing, as it did, the word, “or,” in the first paragraph, merely said, in the second paragraph, that “where upon hearing of the petition for authority to file a belated claim the evidence discloses that claimant actually knew of the decedent’s death and his place of residence, * * * the court is chargeable with no error or abuse of discretion -in denying claimant authority to present his claim,” 'this case probably would not have arisen. In my opinion, the instant decision solidifies that interpretation of the statute and completely writes out of it the words, “or the appointment of the executor or administrator.”

The ambiguity, and an understandable confusion, resulted from the use of the words, “and that in the exercise of reasonable diligence the claimant could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed,” in the second paragraph of the syllabus in the Marrs case.

In that case, no attempt was made to ascertain whether an administrator or executor had been appointed. And the Probate Court refused to allow the claim to be filed. This court said that was not error. In the instant case, however, the Probate Court of necessity must have found that the claimant did act with reasonable diligence, and it therefore allowed the claim to be filed. The majority of this court now says that was error.

I am in complete accord with the following analysis by Judge Zimmerman in his opinion in the Marrs case, an analysis which apparently has now been abandoned by the majority herein:

“* * * we are of the opinion that the General Assembly used the word, ‘or,’ in Section 10509-134, General Code, advisedly and deliberately, so that, when one has a claim against a decedent and has actual notice of his death, he is at once put upon inquiry as to the appointment of a fiduciary and if he learns of such appointment, or in the exercise of reasonable diligence could learn of the same, he must file his claim within the specified four-month period.” (Emphasis added.)

Whether one uses reasonable diligence in a situation where he is required to do so is a question of fact. In this instance, the trier of the facts was the Probate Court, and it found that the claimant had used reasonable diligence.

And an examination of the record of the hearing before the Probate Court reveals an ample basis on which to support that finding. There is no dispute that the claimant knew of the death of decedent; she was killed instantly in an accident with claimant’s bus. Claimant knew also that decedent lived on Oak Street in Chagrin Falls. Claimant also had been advised of the necessity of filing a claim with a fiduciary within four months; it had been so advised by its attorney. It, therefore, instructed its attorney in Cleveland to make a search and maintain a check of the Cuyahoga County records for the appointment of a fiduciary, on the mistaken belief (apparently concurred in by the attorney) that the Oak Street address in Chagrin Falls was in Cuyahoga County.

The Probate Court had before it evidence that, within a period of time shortly after the accident until some six months after the appointment of an administrator, the claimant had been negotiating with the insurance carrier of the decedent for settlement of its claim against the decedent. The following excerpts from the record are pertinent: (The only witnesses were those of the claimant.)

“A. Our conversation, at the first conversation — in these conversations, by the way, both Mr. Fchlner and myself had these conversations with Mr. Fontana [claims adjuster for decedent’s insurer].
“The first conversation was in regard to what steps should we take, or were we mutually to take, to settle the damages to our coach.
“He advised us—
“The Court: Did you make a claim to the insurance company for damage to the coach?
“The Witness: Yes. He advised us to prepare an estimate of our damages and that he would send an appraiser to examine the coach for his company. * # *
U* * #
“The Court: Mr. Fontana*is not counsel for the administrator of the decedent’s estate, is he?
“Mr. Thrasher: Not of record, Your Honor.
“The Court: Did you have any knowledge that Mr. Fontana was working towards the administration of the decedent’s estate, or had anything to do with the making of the application for letters of administration?
“The Witness: No. We were not aware of the fact that there was an estate until the 15th of last month, and all of our dealings * * * were those of our company with their insurance company, because they were the ones that, naturally, we went to for damages.
“They were the insurance company insuring her car.
“The Court: Did Mr. Fontana give you any reason for holding off on this property damage claim until the personal injury claims were settled?
“The Witness: He told us they would not consider settling our claim until such a time as those personal injuries had been settled.
“The Court: Did he give you a reason for that?
“The Witness: No, he did not give a reason. I’m aware of the fact that that is customary in insurance cases, and so while we kept after them, why, we were not completely impatient because that’s the way it has happened in the past, in this manner.
“They will not settle their property damage claims until such time as the personal injuries have been handled.
í Í # * #
“The Witness: * * * Mr. Schultz [claimant’s insurance agent] called and informed me that he had learned that all of the personal injuries had now been settled by the Zurich American Insurance Company.
“Consequently, Mr. Schultz called Mr. Fontana, requesting that now that the personal injuries were all settled, that now we could settle the property damage, and at that time Mr. Fontana informed Mr. Schultz that an estate had been filed and that consequently — that we had not placed a claim within that estate within the proper length of time, and consequently the insurance company, Zurich American, had no reason — or did not owe us any money.”

In the light of the fact that the application for the appointment of an admininstrator lists the assets of the estate as $150 and recites that ‘ ‘ other assets may be coming into estate, possible wrongful death action, possible claims against estate,” the above-quoted testimony becomes more pertinent and makes the following colloquy between counsel at the hearing more illuminating for what was not said than for what was:

“Mr. Thrasher: I would like to ask Mr. Hesser who employed him to come here today. Would you care to tell us, Mr. Hesser?
“Mr. Hesser: I think that’s immaterial.
“The Court: Mr. Hesser told us he was the attorney for the administrator.
“Mr. Hesser: That is correct. My law firm represents the administrator.
“Mr. Thrasher: Does your law firm also represent the Zurich American Insurance Company?
“Mr. Hesser: I object to this line of questioning.
“The Oourt: You need not answer unless you care to.”

In my opinión, the Probate Court was justified in finding that the claimant had used reasonable diligence to determine whether an appointment had been made and, in the light of the whole factual pattern, was justified in permitting the claim to be filed.

Matthias and Herbert, JJ., concur in the foregoing dissenting opinion.  