
    In re McClintock.
    (No. 45226
    Decided March 22, 1978.)
    Court of Common Pleas of Wayne County, Probate Division.
    
      Mr. Bichard Wagner, for Florence MeClintock, admin-istratrix. ■ -
    
      Mr. Fleet, Brenneman, for Helen Hughes and Donnis Johnson, heirs of John ÍI. MeClintock.
   Kindsvatter, J.

The will of John M. McClintoek was filed, in the Court of Common Pleas of Wayne County, Probate Division, on the 25th day of August 1976, under case No. 45226, and Florence McClintoek, the spouse of John M. McClintoek, was appointed administratrix of the estate on August 25, 1976. She continues in such fiduciary capacity to this date.

John M. and Florence McClintoek, husband and wife, jointly executed a promissory note in the amount of $25,000 to the First Savings & Loan Company of Massillon, Ohio, on or about February 17, 1966. This note was secured by a mortgage on property then jointly owned by the couple. John M. McClintoek conveyed his half interest in the property to his wife on July 8, 1974. At the time of his death on August 3, 1976, the balance due on the note was $15,445.44. Since the death of John M. McClintoek the only payment on the principal and interest has been in the form of the required monthly payments. On November 24, 1976, Florence McClintoek, through counsel, Richard Wagner, filed in the Probate Court an “Affidavit of Claim” setting forth her claim against the estate in the amount of $15,445.44.

On May 4, 1977, Mr. Fleet Brenneman, counsel for Donnis Johnson and Helen Hughes, heirs of John M. Mc-Clintock, filed a “Motion to Dismiss the Claim.” The motion was scheduled for a hearing on June 14,1977.

The record further shows that due notice was also properly given to all necessary parties as to the hearing on the claim and on the motion to dismiss.

At the conclusion of the hearing, briefs were ordered to be filed by counsel, the last’of which was filed with the court on October 11, 1977.

At the time of the hearing the following was stipulated by counsel:

(1) Mr. Wagner signed the “Affidavit” with Florence McClintock’s consent and authorization;
(2) The “Affidavit” was filed in the Probate Court on-November 24, 1976, within'the three month-time limitation of R. C. 2117.02, but was not Set for a hearing until June 14,1977;
(3) The parties-had due notice of the hearing on the “Affidavit of Claim” and proof of' service is on file with the Court; publication as to the hearing was duly made and proof of publication is on record;
(4) That the exhibits of the claimant, Florence Mc-Clintock, marked for identification as “Admrx. Exhibit” A through D inclusive, be introduced into evidence.

I. Motion to Dismiss the Claim

The opponents to the claim have raised two arguments in their efforts to have the claim dismissed. It is first argued that inasmuch as Florence McClintock did not personally sign the claim, it has not been properly filed pursuant to E. C. 2117.02. Secondly, it was argued that since the hearing on the claim was not scheduled within the time limits set forth by B. C. 2117.02, the claim is now barred.

As to the first argument, there has been no authority cited to the court for the proposition that an executor’s or administrator’s claim must ■ be personally signed by the executor or administrator to be valid under B. C. 2117.02. It was stipulated by counsel that Bichard Wagner was authorized by Florence McClintock to file the claim, and thát it was done at her instance. The court finds the first objection not well-taken and overrules the same.

As to the second objection, B. C. 2117.02, in part, states that when an executor’s or administrator’s claim is in excess of $500 “* * * the court shall fix a day not less than four nor more than six weeks from its presentation, when the testimony touching it shall be heard.” The record shows that the hearing on the claim was not set within the time prescribed by B. C. 2117.02, and the movants in their arguments contend that the court is now barred from giving any consideration to the claim.

Counsel for the opponent to the claim has argued that the purpose of the time limits set forth in R. C. 2117.02 is to establish a statute of limitations, citing Fulton v. Roderick (1936), 55 Ohio App. 327, and Allen v. Hunter (1964), 1 Ohio App. 2d 278. The court would agree that there is a statute of limitations imposed by the requirements of R. C. 2117.02, but the cases therein cited make it clear that such time limitations are imposed only on the executor or administrator when he shall present his claim. There is no showing that R. C. 2117.02 is a statute of limitations upon the court’s jurisdiction.

If the provisions of R. C. 2117.02, in reference to the time that a hearing is to he set, are considered to be a statute of limitations, or in effect mandatory, then the court would agree that any action taken by the court on the claim in disregard of those time limitations would render the court’s action void. Spice v. Steinruck (1863), 14 Ohio St. 213; Campbell v. Cincinnati (1892), 49 Ohio St. 463; see 50 Ohio Jurisprudence 2d 26, Statutes, Section 18. If, on the other hand, the provisions are not mandatory, but merely directory, a failure to hear the case within those time limits would not serve to negate the court’s jurisdiction. “* * * [A] directory statute is one where non-compliance will not invalidate the proceedings to which it relates.” Rambeck v. LaBree, 156 Minn. 310, cited at State, ex rel. Jones, v. Farrer (1946), 146 Ohio St. 467. It is stated in State v. Farrer, supra at 472:

“Whether a statute is mandatory or directory is to be ascertained from a consideration of the entire act, its nature, its effect and the consequences which would result from construing it one way or another. In each instance, it is necessary to look to the subject matter of the statute and consider the importance of the provision which has been disregarded and the relation of that provision to the general object intended to be secured by the act.”

Counsel for the opponents to the claim argue that the purpose of the time limitations for such a hearing is to “keep the administration of an estate moving at a pace so that it can be completed in a short period of time.” The court considers that this premise may have been the purpose and intent of this legislative language.

Looking to the nature of such legislation, the Ohio Supreme Court in State v. Farrer, supra, said that “[a]s a general rule a statute which provides a time for the performance of an oficial duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure * * (Emphasis added.) (Page 472, citing therein State, ex rel. Smith, v. Barnell, 109 Ohio St. 246.)

While counsel for the parties have not presented any cases dealing specifically with the issue of the time limitation placed up the court by R. C. 2117.02, and the court has not found any cases in point dealing with this issue, it appears that guidance may be found in decisions of both the Ninth District Court of Appeals and the Ohio Supreme Court. The court finds the issues to be: (1) Is the time limitation within which the court is to hear a claim mandatory? (2) If the statutory time limitation is mandatory, is the court required to dismiss the claim for lack of jurisdiction if the time limitation is not met?

The Ninth- District Court of Appeals dealt with a similar statute in Weyandt v. State Personnel Board of Review, unreported, No. 8162, decided December 30, 1976, and State, ex rel. Gore, v. Gray, unreported, No. 718, decided August 10, 1977. Both of these cases dealt with R. C. 124.34, which reads in pertinent part:

“Within-ten-days following the filing of such order [of reduction in grade, suspension or removal], the employee may file -an appeal, in writing, with the state personnel board of review or the commission. In the event such an appeal is filed, the board or commission shall forth with notify the appointing authority and shall hear, or •appoint a trial hoard to hear, such appeal within thirty days * * *.” (Emphasis Supplied.)

The court notes that both R. C. 124.34 and R. C. 2117.02 are very similar. Both statutes first set a time limit in which the person seeking relief must invoke the jurisdiction of the official body (in R. C. 124.34, the State Personnel Board of Review or the commission; in R. C . 2117.02, the Probate Court). Both statutes, then set out a time limit in which a hearing on that request “shall” be heard. The first question, then, is what is the import of the word '“shall” as used in those sections?

The Ninth District Court of Appeals held that the word “shall” was not mandatory, but rather directory* when used in R. C. 124.34. Judge Mahoney, writing for the Court in Weyandt, said: “Even if * * * R. C. 124.34 were applicable, we find (its) time limits are directory in nature.” Judge Bell, .in the decision in Gore, repeated that the time limits of R. C. 124.34 are directory rather than mandatory in nature.

The only difference this court sees between the two statutes is that one deals with an administrative agency, while the other deals with the court. Otherwise they are the same, and it appears to this court that the time limitation in R. C. 2117.02, as it refers to the time within which the court shall set a hearing on the claim, is also directory.

Schario v. State (1922), 105 Ohio St. 535, however, is a decision dealing specifically with a statute requiring a court to hear a matter within a prescribed period of time. It is the opinion of this court that this decision does not require the court to set the hearing on the claims within the time period set forth by R. C. 2117.02.

Schario is very similar to the situation in the matter before this court. G. C. 6212-20 read in part:

“Such petition in error must be filed within thirty days after the judgment complained of, and the case shall he heard by such reviewing court within not more than thirty days after filing such petition. * * *” (Emphasis supplied.)

The facts of the Schario case were these: Petitioner had filed within the time limits set out in the statute (the same situation as is found in the instant case), but the court did not hear the petition within the thirty day period (again, the same situation that is involved in this matter). After the thirty day period had expired, the opponent to the petition filed a motion to dismiss the action on the basis that the court failed to comply with the statute by not hearing the matter within the statutory time limits, and therefore was barred from any consideration of the petition. (Again, the facts are almost identical to the question before this court upon a similar motion to dismiss.)

The Stark County Court of Common Pleas sustained the motion, agreeing that under the statute it no longer had jurisdiction. On appeal this judgment was affirmed, and an appeal was prosecuted to the Supreme Court.

In its discussion of the case, the Supreme Court did not question the nature of the language in the statute, noting “the language of the statute is clear, and therefore permits no construction.” 105 Ohio St. at 537. The court did find that the statute required only that a hearing he within the thirty day period, and not the determination of the issues based upon the evidence presented at the hearing.

The major question in the ease, according to the court, was not the effect of a failure to comply within the time limitations but rather, “whether or not under our constitution the legislative branch of the government has any right to limit the judicial branch in respect to its hearing and determination of the various actions and proceedings within the court’s jursdiction.” 105 Ohio St. at 538.

The Court held that the legislative branch did not in fact have such a right. “* * * [A] provision of law, mandatory in its terms, intention and character, requiring the court in the exercise of a jurisdiction duly conferred upon it to hear or determine a cause within thirty days from the time within which it is filed in court, or submitted to the court, is an unreasonable and unconstitutional invasion of judicial power, and therefore void. The general principle is sustained in City of Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St. 67, and Incorporated Village of Fairview v. Giffee, 73 Ohio St. 183.” 105 Ohio St. at 539.

The decision in Sehario has not been overruled. It continues to stand for the proposition that:

“An act of the general assembly attempting to peremptorily prescribe'the time within which any court in. .the-exercise of its judicial function shall hear or determine a matter properly within its jurisdiction is a legislative: invasion of judicial power, and, as such, is unreasonable and unconstitutional,;and therefore null and void.” (Paragraph four of the syllabus.)

Assuming, arguendo, that the statute were valid^ and that if valid, the time limits therein would be mandatory upon the court, there still remains the issue as to what effect the statute would thus have whén a court did not. meet those time limitations.- •

In Weyandt, the Court of Appeals held that the failure to meet the time limits of R. C. 124.34 did not' deprive the State Personnel Board of Review of its jurisdiction. In Schario, the Supreme Court found that the Stark County Court of Common Pleas had not been “warranted in sustaining the motion to dismiss the ease” as jurisdiction had attached with the filing of the petition. Even if the statute were valid, said the court, it did not by its terms- “deprive the court of jurisdiction to determine whether or not prejudicial error had been committed.” 105 Ohio St. at 537.

It seems clear to the court, therefore, that a failure to meet the time limits of R. C. 2117.02, assuming for present purposes that such requirements are mandatory and valid, does not result in a loss of the court’s jurisdiction. The question would be one of determining if error has been made prejudicial to a party. The facts of - the! -instant case lead to the conclusion that there would have been no prejudicial error in this matter. This is an estate wherein a larger portion of the assets are being probated in ancillary proceedings in another state. The only person who would have suffered through the delay in hearing the claim is the administratrix, who has not yet received the court’s approval vel non regarding her claim.

.Therefore, on due consideration thereof, the court finds that the “Motion to Dismiss the Claim” is not well taken and bverrules the same.

II. The Merits o f the Claim

Florence McClintock is seeking $15,455.44 from the estate of her deceased husband, John M. McClintock, by filing, her claim under the provisions of R. C. 2117.02, as she is the duly appointed administratrix of said estate. It is clear from the arguments and briefs presented by her counsel in support of the. claim presented that-the decision in Pietro v. Leonetti (1972), 30 Ohio St. 2d 178, is the controlling .authority in the case before this court.

In Pietro v. Leonetti, a husband and wife owned certain real estate as joint tenants with, the right of survivor-ship and at the time of the purchase of the property they did finance a portion of the purchase price- by co-maldng a joint, and several mortgage note. The husband died and-the wife, because of her survivorship rights in the real estate, became the sole owner of it. The surviving spouse made two payments on the mortgage hnd then sold the property and paid off the mortgage indebtedness owed by herself and her deceased husband. She then filed a claim against the estate of her husband, claiming contribution based upon the joint and several obligation of the mortgage note. The claim was rejected by the decedent’s executor. The trial court found in favor of claimant for one half of the discharged mortgage debt and half of the monthly mortgage installment payments made by the surviving spouse and claimant. The Court of Appeals affirmed and the cause went to the Supreme Court on the allowance of a motion to certify the record. The Ohio Supreme Court affirmed the lower court’s decision holding that the surviving spouse and remaining obligor was entitled to' contribution for half of the amount she paid. The Ohio Supreme Court in its decision supporting the principle that the right of contribution exists upon the facts of the case before them set forth the provisions of E. C. 2117.31, in part as follows:

“When two or more persons are indebted in a joint contract, or upon a judgment founded on such contract, and either of them dies, his estate shall be liable therefor as if the contract had been joint and several, or as if the judgment had been against himself alone.”

The court found in the above case that the mortgage note therein comprised a valid and enforceable claim against the estate, but that the discharge of the entire debt by the surviving spouse and joint obligor eliminated this possible liability upon the estate and entitled her to seek contribution from the estate for half of the obligation paid.

Looking now to the facts of the case before this court, the first difference between Pietro and the within cause is that Florence McClintock received her husband’s. interest in the real estate, not through a joint' and survivorship right but by a conveyance of his interest by quit claim deed prior to his death. Thus, Florence McClintock became the sole owner of the property prior to her husband’s death and his estate hás no interest in or to the property;

Is this difference material? Looking again to Pietro, the court finds that one.of the leading authorities cited in Pietro is Keil v. Keil (1958), 51 Del. 351, 145 A. 2d 563. In Keil the Delaware Supreme Court found that the in-interest of the estate in the property was not material, holding that “ * * * the right of contribution flows from the debt, not from the mortgage lien.” Id., at 356, 145 A. 2d at 565. In other words, the surviving spouse-joint obligor who paid the debt was entitled to contribution because the estate was liable on the note, not because the decedent had been a joint owner of the property which secured the note.

Therefore, this court finds that although the interest of the property of the decedent, John M. MeClintock, was conveyed to his wife, Florence MeClintock, prior to his death, his liability on the note continued after this transfer, and under the provisions of E. C. 2117.31 his estate was liable therefor after his death. The debt is the basis for any possible contribution, and the timing of the tranfer of the property, or the manner of transfer, as evidenced in this ease, makes no material difference.

The other difference between this case and Pietro is that Florence MeClintock has not discharged the debt; the note has not been paid. Does this factual difference affect the claim as presented?

It is clear that the issue before the court is one dealing with the rights of contribution. It has been noted that the theory underlying contribution is based , on a joint obligation, but that an action does not arise “* * * until one party pays more than his just proportion of the debt.” Camp v. Bostwick (1870), 20 Ohio St. 337, Koelsch v. Mixer (1894), 52 Ohio St. 207; see generally, 11 Ohio Jurisprudence 2d 567, Contribution, Section 6. A right to contribution from the estate, herein, is predicated, upon Florence McClintock showing by the evidence,. that she has paid more than, her just proportion of a joint obligation owed by. her, .and hen deceased husband. Upon such a showing, under the operar, tion of R. C. 2117.31, the estate is liable for such excess.

But here the debt Jiasnot been.discharged. The amount claimed by. .Florence McClintock, administratrix, in-the sum of $15,445.44 represents..the.tqtal amount due„on the pote at the time of John M. McClintock’s death. The total amount claimed tvould he in excess of Ms just proportion or that of his estate-, half of the joint obligation would appear to be the amount which could be claimed, if the total debt had been discharged, but such is not the case here for the obligation has not been paid in full.

Claimant’s counsel makes his claim on behalf of Florence McClintock against the estate for the entire amount of the joint obligation of the parties in the sum of $15,455.44. However, at the time of the hearing and relying on the decision in Pietro v. Leonetti, supra, he argued “that the court should order the contribution to Mrs. MeClintock in at least one half of the amount claimed.” Again, it is noted that in Pietro, supra, the full amount of the obligation was paid whereas in the case before this court the debt has not been fully satisfied.

Counsel further argues that the Pietro case “can be extended to allow contributions of one-half the balance due at date of death even though it has not been completely discharged because the court knows it will be discharged. To say otherwise is to hold that the rich widow who has personal funds to pay off thé joint and several debt can get contribution for one-half of what she pays from her husband’s estate, but that the poor widow who cannot come up with the money (or is unwilling to sell her home so that the debt can be paid) is not entitled to contribution for one-half of the debt.” Counsel offers no authority or citations to support or justify his position therein.

The court does hereby set aside this argument of counsel since this theory is unfounded and without precedent and is contrary to the rules and holdings on the right of contribution.

What then, if anything, is allowable under the claim that has been presented? As a matter of equitable principles this inquiry should be made for Florence MeClintoek is now estopped from making any additional claim as ad-ministratrix due to the provisions of R. C. 2117.02.

Pursuant to the well settled principles of contribution and the supporting cases, any amounts allowable herein would have to he based upon an amount paid on the joint obligation of John .M. MeClintock and Florence McClintock, made after the death of John M. McClintock, and prior to November 24,1976, the last day such a claim could be filed under the requirements of E. C. 2117.02. The amount allowable on the claim would have to be an amount in excess of the “just proportion” Florence McClintock, as joint-obligor, would be required to pay.

The evidence, being, a page from the payment book from The First Savings and Loan Company of Massillon, shows the payments made by Florence McClintock on the note in the period of time between August 3, 1976 (the date of John M. McClintock’s death) and November 24, 1976 (the last day a claim could be filed by the claimant). This evidence shows that Florence McClintock paid a total of $964.72 on the note during the above period of time.

In accordance with equitable principles, Florence Mc-Clintock’s “just proportion” for the payments she made on the obligation of the parties would be half of the total amount hereinabove shown to have been paid. In keeping with the decision of Pietro v. Leonetti, supra, the claimant, Florence MeClintock, the surviving spouse and remaining obligor, is entitled to contribution from the estate of John M. McClintock for half of the total amount of $964.72 she actually expended on the joint obligation during the above period of time, or the sum of $482.36.

The court, for the reasons hereinbefore set forth, allows a portion of said claim of Florence McClintock in the sum of $482.36 as a valid claim for payment by the estate of John M. McClintock.

Judgment accordingly.  