
    RECOVERY FROM ADMINISTRATOR NOT BARRED BY DELAY CAUSED BY DILATORY COURT PROCEEDINGS.
    Court of Common Pleas of Montgomery County.
    Laura H. Gemin v. C. W. Salisbury, as Administrator, etc.
    
    Decided, June 8, 1918.
    
      Estates of Decedents — Money Placed in Trust in Payment for Services— Trust Declared Incomplete — Subsequent Action for Recovery ' on Promise of Payment — Statute of Limitations Not a Bar Thereto, When — “New” Assets Not Mentioned in the Ohio, which is Given a Broader .Interpretation'on Account of that Fact.
    
    The beneficiary of a trust fund — created by a decedent in payment for . .care and services, but which went back into the estate because of • failure of the decedent to- complete the trust — is not barred by the statute of limitátions from maintaining a suit against the administrator on the promise of payment for the services, either by the lapse of more than eighteen months from the date of giving bond by the administrator or -the period fixed by the two years’ statute; ■ where it appears that demand was made upon the trustee for. the fund soon after the death of the decedent, but the trustee insisted •in testing the validity of the trust and by reason of dilatory action on his part and that of the administrator a decision adverse to the claim' of the beneficiary was not entered for almost three years after the death of the decedent.
    
      Murphy, Elliff <& Leen, for plaintiff.
    
      Powell & Howell and E. T. &■ W. B. Turner, contra.
    
      
       Affirmed by the Court of Appeals, July 1, 1919.
    
   ■Patterson, j.

■ In this case a jury was waived and the case tried to the court Upon its merits. ” Plaintiff has filed a petition and a first and second amendment’ to the petition. Defendant has filed an answer and an amended answer.

Plaintiff, in - her original petition, seeks to recover $2,000 with interest at six per cent-.- -from the first day of- July, 1911-, upon a verified accouit for services rendered to one James A. Salisbury, deceased, during his lifetime, by plaintiff at the request of said James A. Salisbury and upon his promise to pay for the same.

To this petition defendant has filed a denial, in which he denies that there is due and ownig to plaintiff from the estate of said James A. Salisbury the sum of $2,000 or any other sum of money whatever; and further denies that plaintiff herein rendered any services to the said James A. Salisbury, deceased, and denies that the said James A. Salisbury promised to pay the plaintiff herein for the services alleged to have been rendered; and avers that the decedent was at plaintiff’s house a.t intervals for short periods of time and avers that for the time spent in the household of plaintiff herein she was duly paid; admits that the plaintiff herein furnished to said decedent at times board and lodging, but believes and therefore avers that said plaintiff was paid for all board and lodging given said James A. Salisbury, deceased; denies that the plaintiff nursed the decedent or did his laundry work during said period of time; and denies that she cared for him in any way; and further denies each and every other allegation of the petition.

For his seoond defense, defendant avers that he was duly appointed and qualified as administrator with the will annexed of the estate of James A. Salisbury, deceased, on the 3d day 'of June, 1913, and on that date his bond as such administrator was filed and approved by the court; that the plaintiff herein failed to file her account with said defendant either for allowance or rejection until the 23d day of November, 1915, and that said claim was rejected on the 14th day of December, 1915, by said administrator, and this action was brought upon the 6th day of January, 1916; that because of said facts the said plaintiff herein has failed to bring her action within the time allowed by Section 10746 of the General Code of Ohio, that is, within eighteen months from the date of the giving of the bond by the administrator; nor has said plaintiff herein brought her action within the time-set-forth in Section 10746 of the General Code providing that an action shall be brought within two years of the date of the giving of the bond of the administrator; that by reason of the foregoing facts the right of action of the plaintiff, if any she has, is barred.

Plaintiff, in her amended petiiton, adopts all the allegations set forth in her original petition and says defendant was appointed and qualified as administrator as set forth in his answer; that her claim was presented for allowance and the same rejected; and that at the time this action was begun said estate of decedent was not administered.

Plaintiff further says that on or about the first day of December, 1911, said decedent promised to pay for said services the sum of $2,000, and covenanted and agreed to create a valid trust for the payment to her at his death of said amount by placing the sum of $2,00i0 in the hands of Ben' B. Schieble upon trust to have and hold the same for the sole use and benefit of this plaintiff during the lifetime of said James A. Salisbury and at his death to pay the same over to plaintiff; that plaintiff agreed then and there to accept said trust in her favor upon above .terms in full settlement; that thereafter in December, 1911, said James A. Salisbury, pursuant to said covenants and agreements, paid over to said Ben B. Schieble said sum of $2,000 to have the same and hold the same, as then represented by decedent to this plaintiff, upon trust as aforesaid for the sole use and benefit of plaintiff. Plaintiff further alleges that, relying upon the statements of deceased that the said Ben B. Schieble held said money upon a valid trust for her sole use and benefit, she agreed to accept the same in full settlement; that upon the death of said decedent, plaintiff demanded payment to her from Ben B. Schieble of said fund pursuant to said trust; that thereupon Ben B. Schieble refused to pay same and brought an action against the plaintiff and the estate of decedent in the common pleas court of Montgomery county, Ohio, for a construction by the court of said trust and the direction of said court as to the disposition of the money so held by him thereunder; that said court held- that said trust was not a valid trust in that same had not been fully completed by James A; Salisbury during his lifetime, and ordered and directed said Ben B. Schieble to pay the same unto this defendant as administrator of the estate of said James A. Salisbury; that said decision and order by the common pleas court were affirmed by the court of appeals on or about January 2, 1916.

Plaintiff further alleges that she relied upon the promises of deceased and his statements that a valid trust as aforesaid in her favor had been created, and, so believing and trusting, she could not conscientiously sooner swear to-the account'herein sued on or make claim against said estate for same for the reason that she believed said trust in her favor tó be in full forcé and effect and had accepted the same in payment of all her ‘claims; that she' had no knowledge of the invalidity of said trust until so finally declared by the court of appeals. •• • •

Plaintiff further alleges that said James A. Salisbury felsely represented to her' that he had created a valid trust as aforesaid in her favor, well knowing that said representations were untrue, and that the same were made with the intent to deceive and defraud this plaintiff. Plaintiff alleges that said representations were false and then known to the decedent to.be untrue, in that he did not complete a trust as he had represented.

Plaintiff further alleges that said James A. Salisbury falsely invalidty of the same until so decided by the court at the instance of said trustee; that her failure to swear to her claim and present same for allowance to the administrator of said estate and bring suit thereoii was because she relied upon and believed the false and fraudulent representations of said decedent, and plaintiff had no knowledge of and did not discover the fraud practiced upon her until the decision of the said Schieble suit was rendered January 2, 1916; that this plaintiff and this defendant were the sole and only contestants of said cause No. 35754. Wherefore plaintiff a^ks for judgment as in her petition.

To this amended petition the defendant has filed an amended answer in which he refers to and adopts every allegátion set-forth in the original answer filed herein, and further alleges more in detail the appointment of defendant as administrator and the dates of the publication of his notice of appointment; that .-since said appointment defendant has at all times resided in the city of Dayton, Montgomery county, Ohio, and that no assets have come into his possession as said administrator save and except such assets as came into his possession at the time that he qualified as administrator aforesaid on the 8d day of June, 1913; that plaintiff was a resident of Dayton at .the time said James A. Salisbury died and knewof his death; that plaintiff had personal knowledge of defendant’s appointment and qualification at the time of the appointment and qualification ; that the cause of action of plaintiff accrued on the 28th day of March, 1913.

Defendant further alleges in detail the presentation for allowance of the claim of plaintiff; that suit thereon was not commenced until more than eighteen months after the appointment and qualification and until more than eighteen months after the defendant gave bond, as such administrator, nor within two years of the appointment, qualification and giving bond. Defendant further says that the right to sue this defendant as administrator at the time the petition herein was filed was and still is barred by the statute of limitations, which defendant pleads and relies upon as a bar to plaintiff’s right to recover herein.

Wherefore defendant denies each and every allegation contained in the amendment to the petition and prays that the petition and amendment to the,petition filed herein may be dismissed at the cost of the plaintiff.

Plaintiff, in her second amendment to the petition, adopts and makes a part thereof all the allegations set forth in the petition and the first amendment thereto as though fully set forth. Plaintiff further says that neither at the time said claim was presented for allowance, nor at the time same was rejected by defendant, nor at the time this action was begun had said estate been declared insolvent or referred under Section 10722 of .the General; Code. - ....

'...■Plaintiff; further • says.-that said sum-of -$2,000 held by said Ben'-B, Schieble. was-at-the'time of the-trial, of -this cause, but not until after eighteen months from the date of the appointment of defendant as administrator, in the.hands of this defendant as such administrator, paid. to him by said Ben B. Sehieble under orders of the court in said cause No. 35754 on the dockets of this court, entitled Sehieble against Salisbury, administrator; that prior to January 2, 1916, said fund was in the hands and manual possession of Ben B. Sehieble, and was not caused to be appraised by said defendant by the appraisers of the personal estate and was not so appraised as assets at the time this case was begun, and was at the time this case was begun a new asset in the hands of said defendant.

Plaintiff further alleges that said cause aforesaid No. 35754 was not tried on the merits of this cause, nor were the issues raised as aforesaid shown; that said Sehieble by his pleading and testimony in said ease absolutely maintained that he was holding said fund for the use and benefit of this plaintiff and continuously did so until ordered otherwise by the final decision of the court; that the reason said Scheible refused to pay same to plaintiff prior to the time suit was begun was because ordered not to do so by defendant or his attorneys.

Wherefore, plaintiff prays judgment against defendant for the amount of her claim, and that the defendant be ordered to pay the same out of said funds of the estate in his hands applicable to same, and for all other and further relief to which in law and equity she. may be entitled.

These pleadings, in substance, set out the respective claims of the parties hereto. For the purposes of this decision, some brief reference should be made to the facts as shown upon the hearing of this cause. It developed in the testimony that on or about July, 1910, the decedent entered the home of plaintiff as a romer and boarder, and continued to reside there until about the first of July, 1911; that during the early part of his residence with the plaintiff, it was understood between decedent and plaintiff that a sum of money amounting to $5,000 would be furnished by him for the purpose of purchasing or building a home for their occupancy and which should be hers at his death; that this was to be in full' payment for any and all services she might render to him. The testimony shows that the decedent did reside in the home of plaintiff practically all of the time from July, 1910, to July, 1911, and that he was more than a roomer and boarder — that he was also what might be considered a patient. Decedent during all that time was in bad physical condition, and the care of him by plaintiff was very laborious in its nature and was almost of the character of care which would be required by an infant, because his physical condition hal left him paralyzed from his waist down, and he was unable at times to control his bowels, which necessitated very disagreeable labor on the part of plaintiff and her husband; that some time subsequent to the above arrangement in reference to the purchasing of a new home, on account of some difficulties in decedent’s home, a different arrangement was entered into, whereby it was agreed between the decedent and plaintiff that $2,0)00 of the $5,000 should be set aside in full payment of her services and held in trust by one Ben B. Schieble to be paid to her at decedent’s death; that in the early part of September, 1911, the sum of $2,000, which was the amount agreed upon between the decedent and the plaintiff as a reasonable compensation for her services, was placed in the hands of said Schieble to be held by him in trust for her and to be paid to her at decedent’s death; that said Schieble accepted said money with a full understanding of the conditions under which he accepted the same; and subsequently, in order that the money might earn some income, he loaned the same to Baker & Brother; that while said Schieble held said money and before the death- of decedent a number of conversations and conferences were had by Schieble and the decedent relative to said $2,000, and in none of these conversations did the decedent deny the purpose for which Schieble held said money, and as a further indication of the perfect understanding between decedent and Schieble, it might be mentioned that when the first year’s interest became due on said loan to Baker & Brother that the decedent requested of Schieble that the interest be paid to him, but Schieble refused to do so until the decedent first obtained the consent of plaintiff; that the decedent did obtain the consent of plaintiff and thereafter did receive the interest from Sehieble. From all the testimony in the ease, the court can not recall any that throws, any doubt upon the claim of plaintiff that Schiebie held this money in trust for her and th'at it was to be paid to her at decedent’s death for full compensation for the services which she had rendered him.

Subsequently, the decedent, while in Florida, upon the request of Schiebie, who, while not doubting how he held the said money, but in order to have some written recognition of the capacity in which he held the same, requested decedent to' give him such.a written memorandum, which the decedent did.. And it was this letter written by decedent in Florida which formed the basis of the conclusions of the court of common pleas and the. court of appeals that said Schiebie did not in fact hold the money in trust for plaintiff but held it in trust for the .decedent.

Shortly subsequent to the death of the decedent, plaintiff made a demand upon Schiebie for said money, which he refused to pay on account of being uncertain, since the receipt of said letter, as to the capacity in which he held the said money, and about the same time the defendant made a similar request of Schiebie to pay the money to him as administrator, which Schiebie refused to do. Shortly thereafter a suit was begun in the common pleas court of this county to determine the nature of the trust, which suit, after the court had decided as above indicated, was.taken to the court of appeals by said Schiebie and the plaintiff and 'there affirmed. In the’ petition in the trust case, Schiebie was the plaintiff, and this plaintiff and this defendant were the defendants. On the appeal to the' court of appeals, Schiebie and this plaintiff were plaintiffs, and this defendant was the defendant. • ...

Up until the ei'me that the court of appeals decided the trust case, no claim had been presented to the defendant by this plaintiff for her services, and pending the action upon the trust case and its final disposition in the court of appeals, the time for the presentation of claims' to estates .-and ■ suits thereon, as provided for in Section 10746, had .expired. . .........

As we understand .the ..final claims .of. .plaintiff, she seeks, recovery because of the alleged fraud committed upon her by the decedent on account of which she has an equitable lien upon the said $2,000 -as a fund in the hands of the defendant, and because the $2,000 coming into the hands of the defendant as administrator under all the circumstances herein set froth, constituted new assets in his hands, and by favor of Section 10[747 the statute of limitations against the presentation of her claim did not begin to run until said new assets had in fact come into his hands. ' '

The claims of the defendant are three-fold. First, that the defendant is not indebted to plaintiff in any amount whatever, and that whatever services she performed for decedent < were compensated during his lifetime. Second, that because plaintiff did not present her claim for allowance nor bring suit thereon within the. time prescribed in Section 10746, that she is barred from recovery. Third, that because the court of common pleas and the court of appeals found in the trust suit that said Sehieble held said $2,000 in trust for the decedent, that at the time of his death they were in fact assets of the estate and can not now be considered as new assets.

Very voluminous briefs have been filed by both the plaintiff and defendant in this case which somewhat remind the court of target practice in their efforts to hit the core of this controversy. For the purposes of this decision, the court will only consider one question raised by the pleadings, and that • is, whether or not the $2,000, in the manner in which it came into the hands of the defendant, is or is not in fact new assets.

Defendant" claims that plaintiff slept upon her rights in not presenting her claim for allowance and in the event of its rejection bringing suit thereon within the time prescribed by law. And this brings ús to a consideration of what part, if any, the trust suit plays in the determination of the question here involved. As already indicated, the trust suit was begun by Sehieble himself against this plaintiff and this defendant in the court- of- common pleas.- At the time the trust suits was begun there, was .an honest, difference, of opinion between, the .parties-to the trust action as to the capacity in which Sehieble held the trust fund. While Schieble apparently was confident that he held the same in the same capacity as obtained at the time the $2,000 was originally placed, in his hands, yet he was doubtful as to his right to pay the same over to plaintiff on account of the demand made for payment to him by defendant in this case. Following the decision of the court of Common pleas in the trust suit, the same was appealed to the court of appeals by Schieble and this plaintiff, and it was pending the final determination of this trust suit that the time set out in the statute of limitations as above referred to expired.

The petition in the trust suit was filed on the 16th of June, 1913, and the answer day was July 19, 1913. The transcript of the docket and journal entries in that suit discloses that this defendant did not file his answer when the same was due, nor did he open default until November 17, 1913, at which time he obtained leave to plead in two weeks; that he did not file his answer within that time, nor did he file it until April 4, 1914, when he again opened default with leave to file the same. So that practically eight months and a half expired before this defendant filed his answer in the trust suit, and even then the same was not heard by the court of common pleas and decided until the 27th of May, 1915. So when defendant raises the claim in this case that plaintiff slept upon her rights, it is apparent that defendant was enjoying somewhat of a slumber party himself.

Counsel for defendant, in their contention that this $2,000 does not constitute new assets in the hands of the defendant, rely principally upon the decisions of the Supreme Court of Massachusetts and the statute of that state, which they claim to be identical with the statute in his state. They rely also to some extent upon the ease of Favorite v. Booker’s, Administrator, 17 Ohio State, p. 548, and upon this claim they base two propositions; first, that the statute of limitations runs even against a minor’s action; and, second, that money arising from the sale of land possessed by the decedent at the time' of his death are not new assets. We have no inclination to controvert this authority, but dóubt its application to the issue raised in this ease.

Counsel for the defendant seem to insist that the question of what constitute new assets has been definitely and forever determined by the Supreme Court of Massachusetts. To this conclusion we can not agree. Every case cited from Massachusetts by counsel for defendant can be distinguished from this case. And the opinions of Justice Holmes of the Supreme Court of Massachusetts, upon whom counsel for defendant rely so strongly, do not say that what do and do not constitute new assets has been finally determined. To quote from his opinion in the case of Fay v. Haskell, 207 Mass., p. 207, at the bottom of p. 215, it reads as follows:

“The phrase ‘new assets’ occurring in statutes relating to solvent estates has received much more attention. Property recovered by an administrator which was fraudulently conveyed by the intestate has been regarded as new assets. (Holland v. Cruft, 20 Pick., 321; Welsh v. Welsh, 105 Mass., 229.) And so as to a - reversionary interest in property conveyed to trustees for the benefit of creditors, which at the time of the debtor’s death and long afterwards was supposed to be of no value, and although known to the administrator is not included in the inventory of the estate, but which after eleven years turns out to be more than sufficient to pay the debtor’s claim. (Quinch v. Quinch, 167 Mass., 536.) In this ease Holmes, J., says that the section of the public statutes (then Pub. Sts. v. 136, pag. 11, now R. L. C. 141, par. 11) ‘is a difficult one to construe. It can not be taken to extend to all cases where tangible property first is received by the executor or administrator after two years, even if not included in the inventory. * * * But, on the other hand, the section must be given a serious meaning, and it would be made almost illusory if construed not to apply to any ease where the right was vested at the debtor’s death.’ (See also Copeland v. Fifield, 180 Mass., 223.) ”

In none of the cases cited from Massachusetts are there a set of circumstances that even approach a parallel to the facts and circumstances in this ease. It is true that the defendant in his inventory did include the note of Baker & Brother, but it is also true that no appraisement was had of the same. And if the defendant was diligent, as an administrator should be, and through his diligence he learned that S'chieble held money in trust or its equivalent and that the same should be turned over to the defendant to become part of the assets of the estate he was administering’, by the same diligence he should also have learned that-the said note of Baker & Brother was secured by ample security even though the makers of the note may not have been themselves solvent, and should, therefore, have been appraised. It is, therefore, apparent to this court that the defendant in this ease entertained the same dubious attitude respecting his right to administer this $2,000 as a part of the estate as did Schieble with respect to the capacity in which he held the $2,000 or its equivalent.

In addition to the foregoing, we are of the opinion that there is a clear distinction between the Massachusetts statute and the Ohio Statute. The Massachusetts statute speaks of new assets coming into the estate, while the Ohio statute speaks only of assets coming into the estate. We feel that there is some significance that should be attached to the adjective “new,” and on account, of thp absence of this in the Ohio statute we feel that our lqw should .receive a broader interpretation, particularly xxnder alL-the facts and circumstances of this case, than the Massachusetts statute. - • ■

' Therefore, considering all’the facts and circumstances in this Case and after a careful reading and consideration o'f all the authorities cited by counsel, this court is of the opinion that the justice of this,case speaks most loudly in favor of the claim of plaintiff. . The, estate is still xxnadministered, and the same is in no way more inconvenienced than it would have been had the claim óf plaintiff been filed and suit brought thereon within the time contended for by counsel for defendant.

In the trial of this case no direct testimony was offered by defendant which in any way controverted the claim of the plaintiff or indicates that it was excessive or unreasonable. And, again, after canvassing all the facts and circumstances and' giving a- careful consideration of the law cited,' the conscience of this court will not "permit it tó say that'thé'-claiin o'f the plaintiff •is'-nót jusifancfmai-she isnot-ehtitled-'to recover:ATt :will.'be.nur holding, therefore, that the plaintiff recover of defendant the sum of $2,000 with interest thereon as prayed for in her petition and amendments to the petition.

Exceptions noted.  