
    Bray v. Darby, Administrator de bonis non, ETC.
    
      Claim allowed by executor — As valid against estate — Subsequently disallowed by successor of executor — Four years’ statute of limitations runs from rejection of claim — Section 6113, Revised Statutes.
    
    Where a claim presented by a creditor to the executor or administrator of an estate, is accepted and allowed by such executor or administrator as a valid claim against the estate which he represents, but is subsequently disallowed and rejected by the successor of the executor or administrator who allowed it, the four years! statute of limitation provided by Section 6113, Revised Statutes, begins to run in such case only from the time of the rejection of said claim. (Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 55S, approved and followed.)
    (No. 11333
    Decided March 15, 1910.)
    Error to the Circuit Court of Hamilton county.
    On August 17, 1907, the plaintiff in error, James A. Bray, filed a petition in the court of common pleas of Hamilton county, Ohio, against Thomas H. Darby as administrator de bonis non of the estate of George Schwartz, deceased, which petition, omitting the caption, verification and the exhibit attached thereto, was in the words and figures following, to-wit:
    “Plaintiff states that on the — day of March, 1891, George Schwartz, late of the county of Hamilton and state of Ohio, died intestate: that on the 13th day of May, 1891, Nathan Schwartz was duly appointed and qualified by the probate court of said county, as the administrator of the estate of said George Schwartz, deceased, but failed to give notice of such appointment by publication, as required by law, and continued to act as such administrator up to the time of the death of said Nathan Schwartz on or about- 1906; that on dr about June 1, 1891, he presented to said administrator for allowance his claim against said estate, which is the identical claim set forth herein, and-that said claim was duly allowed by said administrator as a valid claim against said estate; that on the 22d day of July, 1907, the defendant, Thomas H. Darby, was duly appointed and qualified by said court as the administrator de bonis non of the estate of said George Schwartz, deceased, and is still acting as such administrator, and this action is brought against him as such administrator.
    “For cause of action, this plaintiff states that there is justly due him from the defendant, Thomas FI. Darby, administrator of the estate of George Schwartz, deceased, the sum of eight hundred and fifty-five dollars and ninety cents ($855.90) on an account for moneys loaned and advanced to said George Schwartz during his life-time from time to time, a statement of which is hereto attached marked 'Exhibit A’ and made a part herewith, which sum plaintiff claims with interest thereon from Anri 1, 1891.
    “PlamFff further states that on or about the 31st day of Julv, 1907, he presented to the defendant, Thomas P. Darby, administrator de bonis non of the estate of George Schwartz, deceased, a written statement of the claim as aforesaid, duly verified, and demanded endorsement of allowance thereon, but that said defendant on or about said date of July 31, 1907, rejected said claim and refused to endorse his said allowance thereon.
    “Wherefore, plaintiff prays judgment against the said defendant as administrator as aforesaid, for the sum of eight hundred and fifty-five dollars and ninety cents ($855.90) with interest from April 1, 1891^ and for his costs and that the defendant may be ordered to allow said claim as a valid claim against said estate.”
    For answer, and by way of denying the plaintiff’s right to maintain said action, Thomas H. Darby, administrator, pleaded, as and for his defense thereto, “that the plaintiff did not commence any action upon said claim, or to recover thereon, within four years after the qualification and giving bond by said Nathan Schwartz as such administrator as required by the statute in such case made and provided, nor at any other time until the filing of this action.” To this answer plaintiff filed a general demurrer which was overruled by the court of common pleas, and thereupon, the plaintiff not desiring to plead further, judgment^ was rendered upon the pleadings in favor of the defendant administrator. This judgment was affirmed by the circuit court. The plaintiff in error now asks this court to reverse the judgments of the courts below.
    
      Mr. Charles C. Benedict, for plaintiff in error.
    The allowance of a claim against an estate by an administrator arrests the running of the statute of limitations, unless the claim is subsequently disallowed, when time would begin to run from such disallowance, and would be controlled by the special statute.
    The allowance of a claim by an administrator is equivalent to a judgment. Gilbert’s Admr. v. Little, 2 Ohio St., 160; Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 555; Taylor v. Thorn, Admr., 29 Ohio St., 569; Thomas v. Chamberlain, 39 Ohio St., 112; Section 6120, Revised Statutes.
    In further support of the proposition that the statute of non-claim does not run against an allowed claim, we refer to the recent decision of this court in the case of Speidel, Admr., v. Phillips, 78 Ohio St., 194.
    Anticipating a reference by the defendant in error to a rule stated in Granger’s Admr. v. Granger, 6 Ohio, 35, that when the statute of limitations logins to run against the intestate in his lifetime, it will run to its completion without interruption by the death, we submit that that rule has been so modified since that decision in 1833 by the subsequent Ohio decisions already referred to, and by the enactment of Sections 6066, 6097, 6108 and others, forbidding suits against administrators for certain periods of time, suspending the operation of the general statutes of limitations, and providing special statutes in the administration of estates, that the rule no longer prevails. - The special statutes of limitations will control (see Section 4976) as do all special provisions when in conflict with general provisions. Hoiles v. Riddle, Admr., 74 Ohio St., 173; Eddy, Exr., v. Adam, Admr., 145 Mass., 489; Insurance Co. v. Barber, 50 Conn., 568.
    
      The former administrator failed to give notice by publication of his appointment as required by law, and can not therefore claim the benefit of the special statute of limitations contained in Section 6113, Revised Statutes.
    Section 6088 requires that every executor or administrator shall, within three months after giving bond, give notice of his appointment by publication, for three consecutive weeks. 1 Rockel Ohio Probate Practice, Sections 543, 552, 668; 2 Woerner Am. Law Administration, Sections 384, 385; Sections 6088 to 6127, Revised Statutes.
    The following cases from states where statutes prevail similar to our own, on this point, hold that failure to give notice by publication is fatal to the plea of the statute of limitations. Gardner v. Callaghan Estate, 61 Wis., 91; Gilliam, Exrx., v. Willey, 1 Jones Eq., 128; Cox v. Cox, 84 N. Car., 138; Donnerberg v. Oppenheimer, 15 Wash., 290; Hardy v. Ames, 47 Barb., 413.
    The cases cited below hold further that notice must not only be given as required specifically by the statute, but that same must be pleaded in order to sustain the defense of the statute of limitations. Wiggins v. Lovering, Admr., 9 Mo., 262; Munday v. Lee per, Admr., 120 Mo., 417; Love v. Ingram, 104 N. Car., 600; Valentine v. Britton, 127 N. Car., 57; Easton v. Somerville, 111 Ia., 164.
    The decisions of our supreme court as to the necessity of notice are not numerous and are not directly decisive of the point, but the following cases indicate that notice, as required by law, must be given before the special limitations shall operate to bar the claims of creditors. Ardrey v. Shell, 77 Ohio St., 218; Slatterly v. Doyle, 180 Mass., 27.
    
      No section of the statutes of Ohio provides for waiver of this notice. “Mere knowledge” is not equivalent to “legal notice.” Knowledge of the plaintiff in this case that Nathan Schwartz was the administrator of the estate of George Schwartz, and his dealing with said administrator did not relieve the administrator of the necessity of giving the “notice required by law” and did not satisfy. the statutory requirements in order—
    1st. That complete jurisdiction in the administration of the estate might be acquired, as claimed by Rockel; and
    2d. That the special statute of limitation might be set into motion to run against creditor’s claims.
    These statutes of limitation should be construed with reasonable strictness, since they take away existing rights, and should be construed in favor of the rights sought to be defeated thereby. Wood on Limitations, 6; Bradford v. Andrews, 20 Ohio St., 208; Calanani v. McClure, 47 Barb., 206; Elliot v. Cronk’s Admr., 13 Wend., 35.
    
      Mr. Thomas H. Darby, for defendant in error.
    Section 6113, Revised Statutes, bars this action because it was not instituted within four years from the appointment and date of the bond of the administrator. Sections 6097 and 6108, Revised Statutes.
    The claim herein made not only does not militate against the holding of this court in Speidel, Admr., v. Phillips, 78 Ohio St., 194, but that case is rather confirmatory of our view; in that after the allowance of a claim within the period of the statute, and its subsequent disallowance at the instance of the heir after the expiration of six years from the accruing of the cause of action, this court held that the claimant was still entitled to six months after notice of such rejection, within which to bring his suit.
    This is a case in which the statutes as they stood must be construed in the light of the policy of the law, which requires diligence in action, and the speedy settlement of decedents’ estates.
    As to the effect of Section 6113, see Shahan, Exr., v. Swan, 48 Ohio St., 25; 2 Woerner Am. Law Administration, Section 400; Knowles v. Whaley, 15 R. I., 97.
    The giving of notice by publication was effectually waived by Bray, and in this case want of such notice does not affect the operation of Section 6113, Revised Statutes. Ardrey v. Shell, 77 Ohio St., 218.
    This is not a new question, but has been considered by courts of other states, and where the question has arisen, it has been uniformly held that actual notice and exhibiting the demand, and dealing with the administrator as such by the creditor, are equivalent to legal notice. Collamore v. Wilder, 19 Kans, 67; Bush v. Adams, 25 Fla., 809; Robertson v. Agricultural Co., 28 Miss., 237; Ricketson v. Richardson, 19 Cal., 330; Janin v. Browne, 59 Cal., 37; Russell v. Lane, 1 Barb, 519; Warren v. Hendricks, 66 Pac. Rep, 607; Pepper v. Sidwell, 36 Ohio St., 454.
   Crew, J.

It is undisputed in this case that the claim in suit was, on or about June 1, 1891, duly presented to Nathan Scnwartz, administrator of the estate of George Schwartz, deceased, and by him as such administrator duly accepted and allowed as a valid claim against the estate of said decedent. Nathan Schwartz, administrator, died in 1906, and thereafter in the further course of administration, to-wit: on July 22, 1907, Thomas H. Darby was duly apoointed by the probate court of Hamilton county administrator de bonis non of the estate of said George Schwartz. On or about July 31, 1907, James A. Bray, his said claim not having been paid, presented the same to Thomas H. Darby, administrator de bonis non as aforesaid, and requested that he indorse his allowance thereon as a valid claim against the estate of said George Schwartz, deceased. This, said administrator refused to do, and then and there positively rejected said claim. Suit was thereafter commenced thereon by the plaintiff in error, James A. Bray, on August 17, 1907, within seventeen days after the. rejection of said claim by the administrator de bonis non. .The only defense pleaded or relied upon by the administrator de bonis non in this case was the four years’ statute of limitations prescribed by Section 6113, Revised Statutes, as in force prior to April 8, 1898, which section reads as follows: “No executor or administrator, after having given notice of his appointment, as provided in this chapter, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned. Provided, however, that any creditor whose cause of action shall accrue or shall have accrued after the expiration of four years from the time that the executor or administrator of such estate shall give or shall have given bond according to law, and before such estate is fully administered, may commence and prosecute such action at any time within one year after the accruing of such cause of action, and before such estate shall have been fully administered; and no cause of action against any executor or administrator shall be adjudged barred, by lapse of time, until the expiration of one year from the time of the accruing.thereof.” If this statute applies to the present case and is to be construed as requiring a creditor whose claim has been presented to and allowed by. an administrator but not paid,, to bring suit on such claim within four years from the date of the administration bond or be forever barred, then the demurrer to defendant’s answer was properly overruled; but unless such is the proper interpretation and necessary effect of this statute, then said demurrer should we think have been sustained. It is admitted in this case that at the time the claim in suit was presented to and allowed by the former administrator, Nathan Schwartz, the same was neither - barred by the four years’ limitation prescribed by Section 6113, nor by any other statute of limitation. The claim was due April 1, 1891. Nathan Schwartz was appointed administrator May 13, 1891, and the claim was presented to and allowed by him as administrator June 1, 1891; less than one month after his appointment. Under these circumstances, and upon this state of facts, the provisions of Section 6113, Revised Statutes, may not properly be invoiced, because wholly without application. It being the well settled rule in this state, that the allowance of a claim by an executor or administrator suspends the right of the creditor to maintain an action thereon, and thus arrests the running of the statute of limitations. In Taylor et al. v. Thorn, Admr., 29 Ohio St., 569, this court said: “The right to maintain an action on claims against an estate presented to and allowed by the administrator is prohibited by the statute. The creditor is authorized to sue where his claim, on being presented for allowance, is rejected or disallowed by the administrator, but where its validity is acknowledged, and its allowance by the administrator as a just claim against the estate is secured, no action will lie upon it. There is nothing, in such case, for the statute to operate upon. * * * Statutes of limitation affect the remedy only. They do not extinguish the debt nor affect its validity. They merely withhold from the owner thereof the right to employ remedial process for its collection; and where there is no right to such process for the statute to operate upon, where the right to resort to the courts for the collection of the debt is taken away, the statute ought not, and was not intended to apply. Trustees of Greene Township v. Campbell, 16 Ohio St., 16.” Numerous authorities are then cited by Boynton, J., and. by way of deduction and conclusion therefrom, he says: “We therefore hold, that as between the estate of a deceased debtor and its creditors, the statute of limitations ceases to run against the claims of the latter, upon their presentment to and allowance by the executor or administrator.” By Section 6108, Revised Statutes, a creditor whose claim has been allowed by an executor or administrator is prohibited from bringing suit thereon “until after the expiration of eighteen months from the date of the administration bond or the further time allowed by the court for the collection of the assets of the estate;” which allowance or extension of time may, under the provisions of Section 6066, Revised Statutes, be for a period of five years from and after the date of the administration bond. Therefore to adopt the interpretation of Section 6113 contended for by counsel for defendant in error herein, would be to hold that a creditor who by one section of the statute is, or may be, prohibited from bringing suit on his claim within five years from the date of the administration bond, must, by force of the provisions of another section of the statute in the same title and chapter, bring suit thereon within four years from the date of said bond or be forever barred. Obviously no' such result was contemplated or intended by the legislature. In Thomas v. Chamberlain, 39 Ohio St., 112, this court, considering the question of whether or not the statute requiring a creditor of an estate to bring action on his claim within six months after its rejection by the administrator, applies to a case where the claim has been duly allowed by an administrator, and is thereafter rejected by the successor of the administrator allowing it, says, through Mcllvaine, J., at page 121: “The allowance of a claim when exhibited or presented to an administrator for allowance is not conclusive against the estate as to its validity. It may afterwards be disputed and contested by the administrator, but we think, the statutes limiting the right of action to six months after the claim is' rejected does not apply to a case where the claim is allowed upon presentation, and afterwards disputed; but only to cases where it is disputed oiré jected upon presentation for allowance. The statute is (Sec. 6097, Rev. Stat.) : Tf a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and the same shall not have been referred, the claimant shall, within six months after such dispute or rejection, if the debt * * * be then due * * * commence suit for the recover)' thereof or be forever barred.’ It would seem clear, that such suit must be commenced within six months after the rejection, although an administrator dc bonis non may, during that period, have succeeded. If the estate be entitled to the advantage resulting from rejection of a claim in such case, why should it not be bound by an ‘allowance’ made by a former administrator? We think it is so bound, and therefore the rejection of the claim ’in this case by the defendant had no other effect upon it, than would a subsequent notice by Sutherland, after he allowed the claim, of his intention to contest it. An administrator de bonis non takes the estate from his predecessor in the same condition he left it. All acts lawfully done in the discharge of his trust by the former administrator are binding on his successor. The law recognizes a privity of estate between them, and it follows, that the case, in this respect, stands exactly as if the same administrator who allowed the claim had afterwards repudiated it.” Again, in the still later case of Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 555, the precise question presented by the record in the present case was directly determined by this court, and it was there held that: “Where a claim is presented by a creditor to the administrator of an estate and is allowed, which is after-wards disallowed and rejected by a successor of the one that allowed it, the four-years statute of limitation provided by Section 6113, Revised Statutes begins to run, in such case, only from the time of the rejection of claim.” See also Admr. of Gilbert v. Admr. of Little, 2 Ohio St., 157, and Speidel, Admr., v. Phillips, 78 Ohio St., 194.

It follows, necessarily we think, from the foregoing decisions by this court, that the statute of limitations pleaded by the administrator de bonis non in the present case did not constitute a defense, and therefore the demurrer to the answer should have been sustained. This conclusion makes it unnecessary to consider or determine in this case the effect of the failure of Nathan Schwartz to give notice of his appointment as administrator, for such fact becomes wholly immaterial.

Judgments of the circuit court and of the court of common pleas reversed, and cause remanded to the court of common pleas.

Judgment reversed.

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