
    Henry, Executor, v. Doyle, Executor, et al.
    
      Suit by legatee against executor — Section 6211, Revised Statutes — ■ Necessary to prove demand before action — Finding of balance in hands of executor — Not foundation for action, when — Account died by executor conclusive — Unless impeached for error or fraud in four years,
    
    1. In a suit brought under Revised Statutes, Section 6211, by a legatee or 'other distributee against an executor or administrator, it'is necessary to allege and prove a demand upon, and neglect or refusal by, the defendant before the commencement of the action.
    2. In such an action a general finding of a balance in the hands of the executor or administrator and an order to distribute the same according to law, is not a sufficient foundation for the action; but the specific amount, if any, due to the plaintiff must have been first fixed by a court of competent jurisdiction as provided by law.
    3. When an executor or administrator has filed in the probate court an account of final distribution and the same has been approved and confirmed by the court and the executor or administrator discharged from the trust, such account is conclusive unless impeached for manifest error, or for fraud within four years after the discovery of the fraud.
    (No. 11954
    Decided April 12, 1910.)
    Error to the Circuit Court of Summit county.
    
      Dayton A. Doyle, as executor of the last will and testament of William B. Doyle, deceased on May 2, 1897, filed an account of his administration of said estate, on the hearing of which account it was found that there was in the hands of said executor the sum of $60,769.51 for distribution, which the probate court ordered to be distributed according to law and according to the statute in such case made and provided. Afterwards, on the 20th day of January, 1898, he filed an account of final, distribution, which was approved and confirmed and the said executor discharged from the trust. On the 28th day of November, 1903, this action was begun against Dayton A. Doyle personally, and as such executor, to recover certain sums of money alleged to be due to the plaintiff. The defendant denied each and every allegation, averment and statement contained in the plaintiff’s petition, with the exception of some specific admissions, and also defended upon the ground that said cause of action was barred by the statute of limitations and that the plaintiff was not the real party in interest. In the court of common pleas a jury was waived and trial was had to the court and judgment rendered in favor of the defendant. This judgment was affirmed by the circuit court and the present proceeding is prosecuted to reverse the judgment of the circuit-court and that of the court of common pleas.
    
      Mr. H. H. Henry and Mr. Howard A. Couse, for plaintiff in error.
    The action was brought more than six years but less than ten years after the order for general distribution was made by the probate court. Section 4984, Revised Statutes, provides expressly for actions on official bonds and the ten year limitation was held to apply even where a bond had been given before the adoption of the code. King v. Nichols, 16 Ohio St., 80; State v. Orr, 16 Ohio St., 523; State v. Kelly, 32 Ohio St., 421; Whittaker’s Civil Code, citing Section 4984, Revised Statutes.
    We contend that the requirement is satisfied by an order settling the account of an executor and ordering general distribution of the balance on hand “according to law.” This is- the only “order” which the probate court is authorized to make. Armstrong v. Grandin, 39 Ohio St., 369; Cox v. John, 32 Ohio St., 532; Swearingen v. Morris, 14 Ohio St., 424; Bank v. Beebe, 62 Ohio St., 41.
    This precise question has not been decided in Ohio, although the case of Gondolfo v. Walker, 15 Ohio St., 251, has some bearing. Text-book writers differ in their’ opinions. 2 Bates’ Pleading, Practice, etc. (1907), 1644; 1 Whittaker’s Code Forms, 136; Whittaker’s Probate Code, Section 6211, note.
    Where an account has been settled showing a balance due from one to' the estate, this is conclusive (unless re-opened or impeached for fraud) against all parties, as to the existence and amount of the fund. Slagle v. Entrekin, 44 Ohio St., 637.
    Under the code, a general allegation that a defendant “refused” to perform his obligation implies a previous demand and is equivalent to an allegation of a demand and refusal. Brossard v. Williams, 114 Wis., 90; Divan v. Loomis, 68 Wis., 150; Ferguson v. Hull, 136 Ind., 339; Hammond, v. Organ Co., 92 U. S., 724; Gardner v. Donnelly, 86 Cal., 367; 4 Ency. Pl. & Prac., 649.
    Under the issue made by the pleadings, no proof of a demand was necessary. Where a necessary demand has been properly alleged in a petition, it need not be proved, where the answer denied all liability so that it is apparent that the demand would have been met with a refusal. Thompson v. Whitney, 20 Utah, 1, 57 Pac. Rep., 429; Waddell v. Swann, 91 N. Car., 108.
    The appellant, having in his answer disclaimed all liability and entirely repudiated the respondent’s claim, cannot be heard to object that no demand was proven. Parrott v. Byers, 40 Cal., 614; Cox v. Delmas, 99 Cal., 106; 9 Am. & Eng. Ency. Law (2 ed.), 209; 4 Ency. PI. & Prac., 647, 648.
    
      Messrs. Rogers & Rowley, for defendants in error.
    The only action that could have been brought by the original plaintiff (Llenry) on the bond would have been one under favor of Section 6211, Revised Statutes, which requires:
    
      First. The ascertainment of the amount due to the widow or other distributee by an order of court.
    
      Second. A demand upon the executor or administrator for the same and a neglect on his part to pay the same when demanded.
    Neither of these things are set forth in the petition, and the plain inference is that, without these allegations, the pleader certainly did not intend to plead on the bond.
    If any cause of action is set forth in the petition, it is one under Section 6200. Such an action is barred in six years. Yearly v. Long, 40 Ohio St., 27; Stewart v. Welch, 41 Ohio St., 483; Webster v. Bible Society, 50 Ohio St., 1; Langley, Admr., v. Stump, 11 W. L. B., 234; Duhme v. Mehner, 3 N. P., 266; Lease v. Downey, 5 C. C., 480, 3 C. D., 235; Mount v. Lakeman, 21 Ohio St., 643; Douglas v. Corry, 46 Ohio St., 349; State v. Conway, 18 Ohio, 234; State v. Newman's Exr., 2 Ohio St., 568; State v. Blake, 2 Ohio St., 147; Bank v. Beebe, 62 Ohio St., 41; Cox v. John, 32 Ohio St., 532; Armstrong v. Grandin, 39 Ohio St., 369.
    This rule is generally followed. 2 Woerner on Administration (1 ed.), Sections 568, 569.
    This being the law, the distributee must, before bringing suit on the bond, have his right as a distributee and the amount due to him ascertained by proceedings under Sections 6195, et seq. Douglas v. Day, 28 Ohio St., 175; State v. Cutting, 2 Ohio St., 1; Dawson v. Dawson, 25 Ohio St., 443 ; Commonwealth v. Stub, 51 Am. Dec., 533; Giauque on Settlement (2 ed.), 620, note 1; 2 Lawson’s Rights, Remedies & Practice, 1632, note 6; Mighton v. Dawson, 38 Ohio St., 650.
    The petition is fatally defective in that it does not aver that a demand was made upon the executor. Woodson v. State, 17 Ohio, 161; State v. Cowles, 5 Ohio St., 88; Swan’s Manual, 196.
    The statute further provides that the approval of this, account shall work a discharge of the party and his sureties from all liability unless the same shall be impeached for fraud or manifest error. This is not an action to impeach this account for fraud or error. Proctor v. Dicklow, 45 Pac. Rep., 86; State v. Gray, 17 S. W. Rep., 500; Wood-worth v. Woodworth, 70 Mo., 601.
   Davis, J.

The plaintiff in error, plaintiff below also, insists that he has properly brought this action against an executor on his bond under Revised Statutes,■ Section 6211, which is as follows: “Such suit may also be brought by a 'legatee, after he shall be entitled to the payment of his legacy, and by the widow, or other distributee, to recover his or her share of the personal estate, after an. order of the court ascertaining the amount due to him or her, if the executor or administrator shall neglect to pay the same when demanded.”

The oetition does not contain any averment of a demand upon the executor, unless it is contained in the allegation that he “has heretofore neglected and refused, and he now refuses, to pay and account for the same, contrary to the condition of the bond;” nor does the petition contain an averment that the amount claimed has been ascertained by an order of the court, unless it be included in a general allegation that, in settling the executor’s final account the court found in his hands a gross sum, “for distribution, which said court ordered to be distributed according to law, and according to the statute in such case made and provided.”

The statute seems to require an actual demand upon the executor or administrator, as a precedent condition to bringing an action by a legatee or distributee. A mere neglect to pay an amount due to the distributee is not enough. The statute is clear that such an action is authorized when the executor or administrator neglects to pay an ascertained amount “when demanded.” In a related section (Revised Statutes, Section 6195) which provides in part the manner in which an order of distribution may be enforced, the language is still more explicit; for it declares that “if such executor, administrator or guardian shall neglect or refuse to pay * * * when demanded,” etc. The petition was therefore defective in not showing one of the jurisdictional facts, which are necessary to confer the right to sue.

Another condition precedent to the bringing of such an action is the ascertainment of the amount due to the distributee. A general finding of a balance in the hands of an executor or administrator, and an order to distribute it according to law, does not determine either the persons entitled under the law nor the amount to which each is entitled. First National Bank of Cadiz v. Beebe, 62 Ohio St., 41. Difficult, and sometimes intricate, questions arise in ascertaining who are distributees, or how and in what proportions the fund is to be distributed according to law. Accordingly the tribunals and the mode of procedure for ascertaining the amount due to the distributees, in case of doubt or contention, are provided in Revised Statutes, Sections 6195 to 6203, inclusive. An executor or administrator may, if he thinks it proper to do so, voluntarily pay out the distributive fund, trusting to be .exonerated on. his final distributive account; but he cannot be compelled to do so until the claimant has established his right under the forms of the statutes. The plaintiff, therefore, has shown no right to recover in this action.

This executor filed an account of final distribution of the funds in his hands, and the same was approved, confirmed and recorded, more than four years before the commencement of this action; and the executor was thereupon discharged from the trust. By Revised Statutes, Section 6190, he and his sureties are forever exonerated, unless such account shall be impeached for fraud or manifest error. This final distributive account can only be directly attacked and opened up by a proceeding for that purpose within four years after the discovery of fraud relating to it. Revised Statutes, Section 4982. Nothing which would impeach the validity of this final account and discharge appears in the record; and therefore it alone is a sufficient defense to this action.

The judgment of the circuit court and that of the court of common pleas are

Affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.  