
    Delaplane v. Smith.
    1. Under section 101 of the “act to provide for the settlement of the estates of deceased persons ” (1 S. & C. 585), an action to charge an executor not required to give bond upon a claim against the estate of his testator can only be brought within four years from the time of his appointment as such executor, where due notice, of such appointment has been published as required by law.
    2. The last will of E. F. was probated in 1869, and letters testamentary issued to the executors named therein. Due notice of their appointment was published within three months, and they entered upon the discharge of their trust. The will provided that no bond should be required of them, and none was given. In a proceeding to contest the validity of the will in the court of common pleas it was declared, in 1876, not to be the will of the testator. Thereupon, the probate court appointed an administrator of the estate, to whom plaintifE, for the first time, presented a claim against the estate for allowance, and, the same being disallowed, brought suit within six months.
    
      
      Held: Plaintiffs claim is barred by the provisions of section 101 of the act of March S3, 1840. (1 S. & C. 585.)
    Error to the District Court of Pickaway county.
    On March 17, 1869, the will of Robert A. Foresman was admitted to probate in the probate court of Pickaway countjq and on the same day letters testamentary were issued to Charles S. and Elizabeth C. Foresman, no bond being required of them. Within three months thereafter due notice of their appointment was published as required by law. These executors entered upon the discharge of their duties and continued the execution of the trust until July 9, 1876, when the will was set aside in a proceeding in the common pleas court to contest its validity. Thereupon the Probate court, in September of the same year, appointed Jacob D. Delaplane, the plaintiff in error, administrator of the estate, who took possession of the assets of the estate unadministered up to that time. On October 26, following, the defendant in error duly presented for allowance to the administrator his claim against the estate, upon which the action below was founded, and the same was rejected. Within six months suit was brought.
    The defense made by the answer was that, more than four years having elapsed since this appointment of the executors before the claim was presented for allowance, the action was barred.
    A demurrer to this defense was sustained, and, defendant not pleading further, judgment was rendered for plaintiff for the amount of his claim. Upon proceedings in error the case was reserved in the district court.
    
      Oha/rles J. Delaplane, for plaintiff in error.
    
      W. F. Hurst, for defendant in error.
   Longworth, J.

I. Section 101 of the administration act (1 S. & C. 585) was a part of the act providing for the settlement of estates of deceased persons passed March 23,1840, (1 S. & C. 566), under which all executors were required to give bond. It was clearly the intent of the legislature that the limitation of this section should inure to the benefit of every executor and adminstrator; nor do we think that this intent changed with the passage, of the subsequent act of February 5, 1847 (1 S. & C. 614), whereby, in certain specified cases, executors may be excused from giving bond.

We are satisfied that, in cases where no bond is required, or given, the statute begins to run from the time when the executor becomes qualified, notice having been duly given, and the creditor’s right to sue and recover accrues.

The absurd results to which a contrary construction would inevitably, lead are well illustrated .by reference to other portions of the act. All executors and administrators are required to render their first accounts within eighteen months “ after having given bond ” (1 S. & C. 597), and they are allowed eighteen months from the time of giving bond, in ■which to collect assets, until the expiration of which time no suit can be brought against them (1 S. & C. 584). Should we hold that these limitations do not apply in the case of an executor not reguired to give bond, it would be difficult to say when he could be compelled to settle the estate, or whether any suit could ever be brought against him.

II. It is further urged, that, the will having been set aside, Charles and Elizabeth Foresman never were executors in the sense that the creditor was required to present his claim to them for allowance. To this it is a sufficient answer that he might have so presented it, and maintained his action had it been disallowed. It has never been held, in this state, or, as far as 1 have been able to discover, elsewhere, that the rights of a creditor are affected or hindered by the pendency of a proceeding to contest the validity of a will duly probated. His rights exist and are preserved irrespective of the question of the validity or invalidity of the will. The statute begins to run against his claim from the time when he might properly begin an action. See in this connection Bradford v. Boudinot, 3 Wash. C. C. 122.

The judgment of the court of common fleas is reversed, the demurrer to the answer overruled, and the cause remanded.  