
    Mighton v. Dawson.
    1. The right of action on an executor’s or administrator’s bond for the benefit of the estate, given by section 184 of the act of March 28, 1840, providing for the settlement cf the estates of deceased persons, was not abrogated or superseded by the organization of the probate court, or by the code of civil procedure.
    2. Such action .may be prosecuted in the name of a legatee, who may be authorized by the probate court to bring suit on such bond.
    
      ■ 8. The fact that an account purporting to be a final account has been settled in the probate court is no bar to an action under said section to recover assets converted by an excutor to his own use and not accounted for.
    4. Previous to such suit by a legatee it is not necessary that the probate court should find or fix the amount of the legacy or order its payment.
    Erxíor to the District Court of Cuyahoga county.
    The original action was brought in the year 1875 by the plaintiff, a legatee under the will of Robert Dawson, deceased, against the defendants, on the bond of the executors, wherein James W. and Martin B. Dawson were principals, and Brands and Robert Tryon were sureties.
    The plaintiff in her amended petition alleged in substance the following facts, viz.: The execution of the will by Robert Dawson, his death in May, 1870, the pi’obate of the will, the issuing of letters testamentaiy to James W. and Martin B. Dawson, the execution of the bond by defendants, the allowance by the pi’obate eoui’t of leave to bi’ing the suit, breaches of the bond in not returning a true inventory and in the conversion of certain specified assets by the executoi’S to their own use, and pi’ayed for a judgment in the name of the state of Ohio against the defendants for the full amount of the bond, to wit, $4,000.
    After a general demurrer to the petition was overruled, the defendants, by answer, denied all the allegations of the petition, after the execution of the bond. And for second and third defenses to the action the defendants alleged as follows:
    “ 2. Bor further answer defendants say that on December 4, 1875, said J. ~W. and M. B. Dawson, as executors of the estate of said Robert Dawson, deceased, filed in the probate Court of Cuyahoga county their final account of their doings with the assets of said estate; that notice of the filing thereof was duly given to the plaintiff and all others interested ; that no exceptions were filed thei’eto, and that afterwards, on January 17, 1876, the same was duly examined by said court and approved and ordered to be recox’ded; that by law said executors were thereby discharged from all further liability to plaintiff and all others interested beyond what assets and accounts showed to be in their hands, and thal the same shows no assets applicable to the payment of plaintiff’s legacy.”
    “ 3. The defendants, for further answer to said petition, say that at no time before the bringing of said action did the probate court, which by law has exclusive control of the settlement of the estates of deceased persons, fix, determine or find any amount due to the plaintiff as legatee under the will of said Robert Dawson, nor order any distribution of any part of the assets of said estate to the plaintiff; wherefore defendants say that the plaintiff ought not to have or maintain said action.”
    In charging the jury, the court of common pleas, among other things, said:
    “ But I must call your attention to the fact that in addition to the denial by the defendants of all the matters set up in the petition except those admitted, that they set up in their answer several other matters by way of several defenses, on which I will now specially instruct you.
    “ The defendants for their second defense say, that the said executors, on December 4, 1875, filed a final account of their doings with the assets of the said estate in the probate court, the plaintiff and others interested had notice thereof; that no1 exceptions were filed, and that on January 17,1876, the same was duly executed and approved by said court, and that by law they are discharged from all liability beyond that for assets shown in said account.
    “ On this defense I will simply say to you that if all the evidence that has been offered by the defendants in support of it is taken as true, that neither it nor any part of it constituted a defense to this action if the allegations of the petition aro true.
    
      “ The defendant’s third defense alleges that the probate court at no time before the commencement of this action fixed or determined any amount due to the plaintiff as legatee under said will, nor did it order any distribution of any of the assets to the said plaintiff.
    “I say also on this defense, that if it is all true that it constitutes no defense to this action if the allegations of plaintiff’s petition are true. ”
    In the court of common pleas, a verdict and judgment were rendered for plaintiff in the form following: “ And thereupon, after verdict and before judgment, came the defendants and filed their motion for a new trial of this cause, which is heard by the court and overruled, to which ruling the defendant excepts. It is, therefore, considered that the state of Ohio do recover of the said defendants the sum of four thousand dollars damages and the costs of this suit to be taxed, for the benefit of the plaintiff, Amelia A. Mighton, and all others interested in the estate of Robert Dawson, deceased, late of the county of Cuyahoga, and that execution issue to collect the same. And it is further ordered that execution issue against the defendants, James W. Dawson and Martin B. Dawson as principals, and against Francis Tryon and Robert Tryon as sureties.”
    On petition in error to the district court, by defendants, the foregoing judgment was reversed ; and this proceeding is prosecuted to reverse the judgment of the district court.
    
      S. O. Griswold, for plaintiff in error.
    
      Stevenson BurJse, for defendant in error.
   McIlvaine, J.

The plaintiff seeks to defend her action and judgment in the court of common pleas under sections 184, et sec[. of the act of March 23, 1840, “To provide for the settlement of the estates of deceased persons.” Section 184 is as follows: “ When it shall appear to the court, on the representation of any person interested in the estate of any deceased testator or intestate, that the executor or administrator has failed to perform his duty in any other particular than those above specified in the two preceding sections, the court may authorize any creditor, next of kin, legatee, administrator de bonis non, or other person aggrieved by such maladministration, to bring a suit on the bond.” The two preceding sections provide for an action on the bond by a creditor, legatee, widow or distributee, for his or her own use, after the amount of his or her claim has been ascertained and payment on demand is refused. Section 185 directs that the suit authorized under section 184, shall be brought in the court in which the bond is filed, either in the mode directed by the act entitled An act pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators and officers, or it may be prosecuted by bill in chancery, in the name of the person entitled to the action.” And section 180 provides that if the action be brought for any other breach of the condition of the bond, than neglect to pay a creditor, legatee, widow or distributee as provided in sections 182 and 183, execution may be ordered in the name of the state, for the full value of all the estate of the deceased, that shall have come into the hands of the executor or administrator, and for which he shall not satisfactorily account, and section 187 provides that all moneys made on such execution, shall be paid over to the rightful executor or administrator, other than the executor or administrator sued, and shall be assets to be administered according to law.

On the other side, and in support of the judgment of the district court, it is claimed, that the sections of the executors and administrator's act above referred to, and the action thereby authorized have been superseded by subsequent legislation. The subsequent legislation referred to is the creation of the probate court by constitutional provision and the transfer to it from the court of common pleas of probate jurisdiction, whereby the probate court became invested with exclusive power to grant and revoke letters testamentary and of administration, and to direct and control the conduct and settle the accounts of executors and administrators, and to order the distribution of estates. Act of March 14, 1853, regulating probate courts. Also section 25 of the Civil Code of 1852, providing that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” And also section 566 of the code in relation to actions on official securities, substituted for the act referred to in section 185 of the administration act as pointing out the manner in which suits may be prosecuted on the bonds of executors, administrators and officers, which was repealed at the same time by title 20 of the Code. This section provides only for actions on official bonds for the benefit of the plaintiff, differing widely from the action under review.

Clearly, the provisions of the executors and administrators’ act relied upon by plaintiff have not been expressly repealed; and it is also clear that no simialr remedy for the benefit of the estate has been provided by subsequent legislation, therefore, it cannot be said, that they have been repealed by necessary implication. Indeed, section 184 was re-enacted as section 6212 of the Revised Statutes, and no one will assume that any other remedy given by law upon the bond of an executor or administrator, was thereby taken away on the ground of inconsistency. This view of the case is entirely consistent with the case of Dawson v. Dawson, 25 Ohio St. 443.

It is claimed that the plaintiff could not prosecute the action in her own name. In so far as this objection rests on the argument that an administrator de bonis non alone can maintain such action for the benefit of the estate, the statute itself is a sufficient answer. The difficulty in administering the amount recovered as assets of the estate was sufficiently explained, for the purposes of this case, in the opinion of Ranney, J., in the case of The State v. Cutting, 2 Ohio St. 1.

It is said, the action should have been in the name of the state, the payee of the bond. Admitting that the action might have been in the name of the state, and that such would have been the better practice, my brethren are of opinion, the judgment being right, that no prejudice resulted to defendants for which it ought to have been reversed. My own judgment is, that the suit in the name of the plaintiff was expressly authorized by the statute. She was authorized, under section 184, “ to bring a suit on the bond.” By section 185, she was authorized to sue in the mode directed by a particular statute, or to prosecute it by bill in cham,cery in her own name. By the code, the distinction between actions at law and suits in chancery was abolished. This related to matter of form only. The civil action of the code was substituted for actions at law and suits in chancery. If, before the code, the plaintiff was authorized to bring such suit in her own name in chancery, since the code, she may do the same thing in a civil action. If, therefore, the plaintiff could not prosecute the authorized suit in her own name under the statute referred to, or any substituted statute, we are bound to assume that she invoked the chancery jurisdiction of the court, which she could do only in her own name.

The court of common pleas did not err in charging the jury that the final settlement in the probate court of the accounts of the executors as stated in the second defense did not constitute a bar to plaintiff’s action, if the allegations of the petition were true. The petition charged the executors with converting to their own use §985 in money, a promissory note executed by Thomas Ward for §2,200; also another note by Milton and Chester Purdy for $1,800; also a span of horses and three hundred bushels of oats which came into the hands of the executors, but which they refused to administer as assets of the estate. It is not claimed in the answer that these items were administered as assets or accounted for in the settlement. If such assets existed in the hands of the executors, they can make no final settlement until this property is accounted for. As far as this matter of defense is concerned, the existence of such assets and their conversion are admitted by not being denied. This is no case of res adjudiaata.

The court of common pleas was also right in instructing the jury that it was immaterial in the case that the probate court had not, before the commencement of the action, found the amount due to the plaintiff as legatee under the will.

Such a finding, before suit, is necessary under sections 182 and 188, which provide for actions on behalf and for the sole benefit of the plaintiff; but under section 184, where the suit is for the benefit of the estate, it was enough that the plaintiff was a legatee and that fact was sufficiently shown upon the face of the will.

Some other questions have been discussed by counsel, but we find no error in the record of the court of common pleas for which judgment should be reversed. Therefore, the judgment of the district court is reversed, and that of the common pleas affirmed.  