
    (Clinton County Court of Common Pleas.)
    S. C. Kelley & Son v. Levi Mills, Trustee, for the benefit of the creditors of Ruth Ida Hyatt.
    1. Right of claimant to bring suit after thirty days from rejection of claim by assignee. — The provision of section 6350, of the act regulating assignments, which requires the creditor whose claim is rejected, to bring suit thereon against the assignee or trustee, within thirty days after such rejection, does not bar the right of such claimant to bring an action thereon after that period, if it is brought while there are yet assets remaining unadministered.
    2. Status of a married woman under Ohio laws. — Since the act of March 9,1887, (Revised Statutes, sections ,3110 to 3117), the doctrine of a wife(s separate estate in equity has no place in our law. The estate as a creature of equity had its foundation in the disabilities of coverture. Such disabilities no longer exist. When they were cut away, the equitable doctrine fell with them. A wife now owns property and makes contracts precisely as if unmarried, and all legal remedies are open to enforce her contracts against her.
    3. Support of family by the wife. — Under section 3110, before a wife can be held to pay for supplies used in support of the family, it must be averred and proved that the husband is unable to support the family out of his property, or by his labor. It is not sufficient to aver his insolvency alone.
    (Decided March, 1895.)
   Van Pelt, J.

On demurrer to petition, which states in substance the following facts: That on the 3rd day of November, 1893, Ruth Ida Hyatt made an assignment for the benefit of creditors; that the defendant is the acting trustee under said assignment; that the said Ruth Ida Hyatt is a married woman, the wife of W. O. Hyatt; that he is insolvent; that she owned a separate estate, consisting of both real and personal property, at the time the account upon which the action is founded was made; that said account was originally charged to the husband, but the credit wa^ in fact extended to her on the faith and credit of her separate estate; that a part of the goods furnished were for the purpose of being used, and were used in the ■improvement of said separate estate ; that the remainder were supplies for the use of the family of W. C. and Ruth Ida Hyatt, who were living together as husband and wife; that on the 9th day of'October, 1894, said account was presented to and on the same day rejected by said trustee; that there is due on said account, the sum of $205.72, with interest; and the prayer is that defendant be directed to allow said account as a valid claim against the assets of the wife, in his hands.

An examination of the account shows that about fifty dollars thereof is made up of paints and oils, fencing wire, a pump, and nails of different kinds; the remainder is for groceries and other family supplies. It runs from July 14 to November 19, 1893. The petition was filed December 4, 1894. The appearance of the defendant was entered thereon.

The demurrer was filed December 9, 1894, and sets forth two grounds: First, that the action is barred by the statute of limitations, the same not having been brought for more than thirty days after the claim was rejected by the trustee. Second, that the petition does not state facts sufficient to constitute a claim against the wife or her estate.

Is the action barred by the statute? Section 6352 provides, “that creditors shall present their claims within six months after the publication of.notice” of appointment, and the assignee or trustee shall indorse his allowance or rejection thereon ; and “claimants, whose claims are rejected shall be required to bring suit against the assignee or trustee, to enforce such claims within thirty days afteqthe same shall be rejected,” etc. It will be noticed that the statute is as explicit in requiring that creditors shall present their claims within six months, as it is in requiring that suit shall be brought on a rejected claim within thirty days from its rejection. Yet the failure of a creditor to present his claim for allowance within six months does not bar his right to present it and have it allowed after that period, and at any time before the settlement of the trust. A creditor may come in at any time for his equitable share of the assets unadministered at the time he,presents or prosecutes his claim. Owens v. Ramsdell, 33 Ohio St. 439, 442; Carpenter v. Dick, 41 Ohio St. 295. In the first case, the court say : “ The requirement of the statute that creditors must present their claims for allowance within a certain period, was not intended to be a limitation in bar of the right to a subsequent allowance of claims, but was intended to expedite the settlement of the trust, and to protect the assignee in any lawful dividend or settlement that may have been made, and vigilant creditors in such rights as they may have acquired thereby.” And in the second case, this language is cited with approval, and the court say: That by such a construction the objects of the statute as stated, “will be attained, and at the same time, equity will be done as between the creditors.” This reasoning applies with equal force to the requirement that a creditor whose claim is rejected shall bring suit within thirty days to have it allowed. Every object of the statute can be attained without holding that if such action is not brought within thirty days, it can not be brought at all. This same section provides that immediately after the expiration of six months, the assignee or trustee shall file a report of all claims presented, specifying what claims have been allowed and what rejected, with date of allowance or rejection. Section 6356 requires the assignee or trustee, at the expiration of eight months, to file an account, and when such account or settlement shows a balance in his hands, subject to distribution, a dividend shall be declared in proportion to the claims against the assignee, including those allowed and those disallowed upon which suits have been brought; and if such rejected claims are finally established, the holders thereof share in such dividend in proportion to their claims. If a claim is presented and rejected, and no suit is brought before the account is settled, the holder of such claim can not share in such dividend. If suit is brought it does not delay the administration of the assignment, nor prejudice the rights of the creditors. Nobody suffers by the delay but the tardy creditor. The administration of the trust goes right on ; and if the creditor delays suit on a rejected claim, he may lose toe right to participate in dividends declared during the delay, and if he waits until the trust is finally settled, he loses his entire claim. But if he brings his action while there are yet assets in the hands of the trustee, subject to an order of distribution, he may receive a dividend on his claim if finally allowed, equal to that paid other creditors, if the assets are sufficient for such payment.

This construction of the statute is borne out by a comparison of the language of this section with that of other statutes, which have been held to create a limitation in bar of a subsequent action. Section 6097, in reference to actions on claims presented to and rejected by executors or administrators, provides that if suit is not brought on a rejected claim within six months, the claimant shall “be forever barred from commencing an action thereon.” Section 4979, relating to the bringing of civil actions generally, provides that such actions “can only be brought” within the periods named in the sections following. Section 2315, in reference to claims for damages growing out of street improvements, requires that such claims shall be filed within two weeks after service of notice on the property owner ; and that “an owner who fails to do so shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages.” Like provisions are contained in sections 4460 and 4518 in relation to claims for damages in the construction of county and township ditches. The section under consideration contains no such provision. While the holderof a rejected claim is required to sue thereon within thirty days, it is not de^ dared that an action can be brought only within that time, nor that the right to bring it shall be waived or barred, if it is not brought within that period. Wherever a fixed limitation in bar of the right to sue or assert a claim is intended, apt words declaring that intention are used. In section 6352 no such intention is expressly declared, and it is fair to infer that it did not exist.

In Harper et al. v. Leckey, Guard., 40 Ohio St. 602, the holder of a note and mortgage presented the same for allowance. The assignee rejected the same “as a valid claim or lien.” Within thirty days the holder sued on the note, and obtained a judgment that the assignees “allow said claim in the settlement of their said trust.” The assignees refused to pay the claim out of the proceeds of the mortgaged premises, claiming that it was not entitled to priority over the debts of the assignor, because suit had not been brought on the mortgage within thirty days from the rejection of the claim. The mortgagor brought suit to enforce his right to priority, and recovered.

This section does not create a right; it merely provides a remedy for enforcing an existing right against the assets of the assignor in the hands of the assignee or trustee. As such it should be liberally construed in favor of creditors. P., C. & St. L. Ry. Co. v. Hine, adm’r, 25 Ohio St. 629-634. The court is of opinion that an action on a rejected claim may be brought after the period of thirty days from its rejection, if it is brought while assets yet remain in the hands of the assignee or trustee unadministered.

We come now to consider the second ground of the demurrer. Does the petition state facts sufficient to constitute a claim against Ruth Ida Hyatt? It is sought to fix her liability on two grounds. It is claimed that as to a part of the account she is liable, because it was for materials used in repairing and improving what the píeader calls her separate estate ; and that the remainder of the account- was for groceries and other supplies used in the family, and that her husband is insolvent. The account was made long after the act of March 9, 1887 (84 O. L. 132 ; Rev. Sat., secs. 3110 to 3117), went into effect. This fact defines the rights and liabilities of husband and wife. By it all the acts and sections previously in force, defining the separate estate of the wife and her ability to make contracts in her own name were repealed. That act was intended to effect, and did effect a most radical and complete change in the law relating to the rights and liabilities of a wife. The whole doctrine of a wife’s separate estate in equity, and its liability to respond to certain of her contracts, was based upon the wife’s inability to make a contract binding upon her at law. The equitable doctrine of a separate estate grew out of and was dependent upon the disabilities’ of coverture. Such disabilities no longer exist. They were cut up by the roots and destroyed by that act. A married woman no longer has a separate estate in equity. As that estate depended upon her legal disabilities, wheu the foundation was cut away the superstructure fell. Her property rights and power to contract are now precisely the same as those of a man or unmarried woman. Her contracts are binding in law and enforceable by the ordinary legal remedies. There are no equities against her, where they would not arise in the case of an unmarried woman. Her estate is no longer held liable in equity on the theory that she cannot bind herself at law. Marriage, except as giving rise to a contingent right of the husband to dower and a distributive share, of her personal estate, no longer affects the property of the wife. Formerly, when she entered into a contract which was for the benefit of her separate estate, or for her benefit, on the faith and credit of her separate estate, an intent to create a charge upon that estate was implied in equity, for in no other way could effect be given to her agreements. To prevent fraud, equity, upon the theory of an implied intent, fastened a charge upon her estate, when good faith and the nature of the agreement required that the estate should respond.

But there is no longer any necessity for a resort to equity. All the wife’s property is now under her control. All her contracts are now binding in law. All the legal remedies are open to those who enter into contracts with her. No lien or charge on her property is created by her contracts, where it would not be in the case of an unmarried person. It is not necessary to resort to the doctrine of an implied intention to create a charge upon her property in order to give effect to her agreements. Equity no longer reaches her through her separate estate, but the law now reaches all her property through her. The allegation of this petition — that Mrs. Hyatt had a separate estate in real and personal property at the time this account was made, is without foundation in law, and could not be true in fact. She had property, but it did not have and could not have any of the attributes of a separate estate. She is liable for the goods, if they were sold to her, or if she agreed to become liable therefor, or if the law by virtue of her relations as a wife makes her liable ; otherwise, not.

It is not claimed that she bought the goods or run the account. But it is said that while the goods were charged to her husband, credit was extended to her on the faith of her separate estate. It is not alleged that she knew or was in any way informed that plaintiffs expected to look to her for payment. In the absence of such au averment the alllegation that credit was given to her, coupled with the admission that the goods were originally charged to the husband, can mean no more than that because plaintiffs knew that she owned property and the goods were furnished for the purposes stated, they expected that she would not allow the bill to remain unpaid. The mere fact that the paints, nails, wire, etc., were used in repairing or improving property creates no legal liability on her part to pay for the same. For aught that appears in the record, the husband may have been using her real estate under a contract which, as between him and her, required him to make all .repairs and improvements. It is not charged that she purchased the materials used, or éven that she directed the improvements should be made. The husband may have made them for his own convenience; and mere acquiescence on her part would not render her liable for the materials used in making the same. There are no averments from which it can be inferred that the husband acted as her agent, or had anv authority from her to pledge her credit, nor that he assumed to do so. No facts are stated that make the wife liable for the articles used in making repairs and improvements. Now, as to goods furnished in the way of groceries and family supplies, it is said that she and her husband were living together as man and wife; that these supplies were used in the family; that the husband is insolvent; and that she thereby became liable for the goods furnished and used for that purpose. As it is not averred that she bought the goods, nor that she agreed to become responsible therefor, and as the goods were originally charged to the husband, if she is liable it must be under the provisions of section 3110 as amended by the act of 1887. It is as follows: “Sec. 3110. The husband' must support himself, his wife and his minor children out of his property or his labor. If he is unable to do so, the wife must assist him so far as she is able.” Before a wife can be held responsible under this section for supplies furnished the family, it must be averred that the husband is unable to support the family either out of his property or by his labor. It is averred that the husband in this case is insolvent ; but it is not averred that he is unable by his labor to support his family. A man may be insolvent, that is, he may have no property which can be reached by legal process to satisfy his debts, yet he may own a homestead worth $1,000.00 and other statutory exemptions, and he may be abundantly able by his labor to support his family. Many men who are execution proof earn large salaries or wages, and support their families well. It is only where the husband is unable ouf of his property or by his labor to support the family that the wife can be required to assist. Non constat but that W. C. Hyatt,- though insolvent, may have been fully able to support his family by the proceeds of his labor. Tbe allegations of the petition are not sufficient to charge the wife for the supplies furnished.

Smith & Savage, for plaintiff.

Mills & Clevenger, for trustee.

Recurring again to the question of the time when the action was brought, as it appears the assignment was made November 3,1893 ; that the claim was not presented to the trustee till October 9, 1894, and suit was not brought till December 4, 1894, more than eight months after the assignment, it may be a question whether to make a cause of action against the trustee — it was not necessary to aver that there were at the time the action was begun, assets yet remaining in the hands of the trustee unadministered.

The demurrer on the first ground is overruled, and on the second ground, sustained.  